Yesterday at Chick-fil-A, part of the nation showed up to support either
1) free speech, or
2) the politics of anti-gay-marriage.
But when the mayor of three prominent cities say Chick-fil-A is not welcome in their cities, is it because the mayors have a deep seated belief in social equality, meaning they don't like the politics of a biased company against a large part of their constituency;
or is it really because they don't support free speech?
The Tea Party on Facebook reported, "The National Organization for Marriage, which opposes gay unions, urged a boycott when General Mills and Starbucks came out in favor of same-sex marriage."
So this doesn't seem like a free-speech debate to me. It seems totally politically-centered. Yet I know there must be some who went to a Chick-fil-A to support free speech.
Yet, who was actually saying it was a free speech issue? CNN reported that "now a population already sharply divided over same-sex marriage is collectively less informed about the First Amendment," adding that the Amendment "does not protect you from private individuals' negative reaction to your speech." Exactly. How do you separate the "free speech" from the message contained in it?
The Houston Chronicle said people were showing up to support the anti-gay-marriage view. Former Arkansas Gov. Mike Huckabee dubbed it 'Chick Fil A Appreciation Day'. Do you think it was over the issue of free speech? This former Baptist minister-turned-mushy-conservative former Governor, US News.com said, "wrote that he was 'incensed at the vitriolic assaults' made on Chick-fil-A as a result of their stance against gay marriage." Those 'assaults' were not made because someone protested the right to free speech. USA Today.com said he wanted people to "get behind Chick-fil-A as the company takes a stand against same-sex marriage."
The Daily News of Los Angeles said the company's free speech wasn't at issue. Instead, it said, "If it's OK to choose between McDonalds and Jack in
the Box based on which clown mascot you like better, it should be OK to
choose between Chick-fil-A and its competitors based on the images their
logos conjure up."
Well, speaking as a gay man, every person and every company has a right to free speech. And a call for a boycott is never a boycott against their right to say what they want; it's always about the substance of the speech. I will not eat anywhere that is against my natural law right to association-through-government-sanction. The wall of separation between church and state ought to extend also to marriage.
Individual sovereignty means freedom from government interference, and when we are not allowed to legally do what straight people do outside of a church, that is, get a civil marriage rather than a religious one, then there is no separation of church and state for anyone who is not heterosexual.
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Showing posts with label separation of church and state. Show all posts
Showing posts with label separation of church and state. Show all posts
Thursday, August 2, 2012
Monday, March 21, 2011
The Ninth Amendment, Liberals, and Conservatives
On March 11, I wrote, "if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them."
Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
"The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
And that is all that the Ninth Amendment states; and it should read more like this:
© Curtis Edward Clark 2011
Visit the Atheist-AA Google Group
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Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
"The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
And that is all that the Ninth Amendment states; and it should read more like this:
"Whosoever shall act in accordance with the principle that no one may initiate aggression against another, shall not be found guilty of illegal acts."*1 2 3 4
© Curtis Edward Clark 2011
Visit the Atheist-AA Google Group
http://groups.google.com/group/atheist-aa
Monday, March 8, 2010
Overcoming the "Overcoming of Originalism"
In my original post of this blog I wrote: "Taken as a 'living document' progressives and liberals have been allowed to abrogate the provisions of the Constitution that otherwise would cause the necessity for Amendments. A 'living document' needs no Amendments. It can be twisted to meet the needs of whatever political party has power."
This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence."
What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.
But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.
But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law?
For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.
The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.
If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths.
Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.
This morning while searching for something else, I came across this progressive or liberal defense, by Peter Ianakiev, of such "twisting": "Given the difficulty of getting the Constitution amended, doesn’t it make much more sense..." The author talks about a specific obstacle to Originalism, but earlier in the piece he wrote, that Originalism "does not provide us with an effective model of jurisprudence."
What justification does he give for "overcoming originalism" (the title of his piece)? It does not provide us with any practical way" with "legal reasoning and judicial decision-making."
Ianakiev uses the example of the execution of mentally ill convicts as "cruel and unusual" as determined by the Supreme Court in 2002.
But if the Court had determined that such was the case, and then stayed the execution until such time as Congress or the American people could decide what to do, there would have been no "overcoming" of the Originalist reading that failed to provide for community standards that change. An amendment could have been brought forth for consideration by the States, or perhaps Congress could have legislated a solution.
But "difficulty" in following Constitutional law is no defense for "overcoming" the upholding of a legal set of principles which every jurist and every legislator is sworn to uphold. Ianakiev is not quite right to define Originalism as "what a reasonable person in 1787 interpreted the constitution to mean." It actually means, what do the historical documents written by the Founders themselves, as pertains to specific elements of law under consideration by the Court in question, say about that element of law?
For example, the "separation of church and state" is nowhere in the Constitution, and yet it is included because all the historical material that shows us that is what Jefferson (and others) intended. Originalism has to do with the Founder's "intentions". You cannot use the example of a mere "reasonable person" because reasonable people lost in Court quite often when they attempted to discover their rights under the new Constitution.
The difficulty of getting an Amendment passed is what I have always believed to be the excuse, usually implicit, in the actions of those who attempt to "overcome" Originalism. If it is that difficult, then let's take on the difficulty one more time with an Amendment that would allow for an easier method of passing such Amendments after that one passes---if the American people believe it ought to be easier.
If they do not believe it ought to be easier, than they have chosen to maintain the objectivity inherent in Originalism. The people will have finally heard the arguments on both sides, arguments which I'm certain the majority of people are not even familiar with at this point, and they will have their day in the voting booths.
Then it can no longer be said that such "difficulties" are justification for ignoring the very machinery of freedom that was in the minds of those Originalists who wrote what liberals and progressives are tearing asunder because of the expedience required if they are to "overcome" the law as it is written.
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