Thursday, February 09, 2012

Washington Post points out "poison pill" in Ninth Circuit's ruling on Proposition 8

The Washington Post has an important editorial on p A16 Feb. 9, “Wobbly Justice: An appeal’s court’s decision on Proposition 8 may actually end up hindering gay rights”.  Online the title is “Proposition 8 ruling was just but wobbly”, link here. The story title reminds me of a ski lodge in Vermont, “The Wobbly Barn”, that I visited right after I “came out” in 1973.

The problem, as hinted Tuesday, is that the Court, in attempting to be narrow, said that the Proposition advanced no hypothetical state interest.  In writing its Opinion, the Court, with a sloppy subjunctive (it would be clearer in French than in English because of the endings) speculated that a referendum could actually try to advance marital procreation.  That’s rather disturbing (and it “opens the door” and gives hints), because it ratifies the idea that you may (constitutionally, through the political process) advance meeting the needs of some people (married people having children) by placing a contingent threat on others to be forced to sacrifice (to help support the sexual intercourse of others sometimes at expense to themselves).  

The ruling also begs a line of reasoning in some previous Supreme Court holdings, where a purported "fundamental right" needs to have a social purpose (like procreation or family) before it becomes "fundamental".  That sort of thinking had infiltrated the majority in "Bowers v. Hardwick" in 1986 but went away in "Lawrence v. Texas" (2003) except for dissent.  

Yesterday, on my books blog, I reviewed "The Darwin Economy", and author Robert Frank did talk about "common good", but in the context of optimizing freedom for everyone, not in forcing subsidies and sacrifice. 

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