Thursday, October 23, 2008

There's a study that proves...

In my conversations with people about Proposition 8 and same sex marriage, proponents often say that there's no danger in raising children in families with same sex parents. They dare you to cite one study that proves otherwise. Of course, on the spur of the moment, you can't come up with an answer because, come on, can you cite one study that proves anything on the spur of the moment?

Well Troy has saved us all the embarassment of not having a citation to hand and/or the hassle of finding just the right ones to make your point. On his blog (here's the link again), he gives an exhaustive list of "facts and sources" about the issues surrounding Prop 8.

I got this link from my brother's blog. In his post, he says, "I think that the ability of the court to overturn legislation they believe is unconstitutional is a necessary part of our government to protect the minority from the majority. So while I disagree with the court’s decision to overturn Prop 22, I can’t complain about the process for doing so. It’s not “sneaky” or “underhanded” in any way; it’s the way the government is supposed to work. However, the ability to amend the constitution is the balance to that check, and we have the ability to turn it right back."

I thought that if my brother, who is a smart guy, didn't understand why people are upset about "activist judges legislating from the bench," then there might be others who are confused too. The problem is not that the court overturned a law as unconstitutional -- that is indeed what courts are supposed to do. The problem is that the court said that since they overturned one badly written law expressly forbidding something that has never been allowed, that means that the thing which has never been allowed is now allowed, legal, and encouraged.

That's like saying that when the court overturned the handgun ban in Washington DC, everyone who wanted to could go out and buy a gun that day to keep in their homes. There are still many other laws about guns including waiting periods, licensing regulations, and permits to carry concealed weapons that still have to be followed in the wake of that decision. When a court overturns a law, conditions should return to the status quo before the law was passed, not infer that a law endorsing the opposite has been created out of thin air.

I'm going to make up a case now that has no real bearing on reality in order to make a point. I'm sure that there are problems with the legal matters in my example because of things I don't know about communications law and fraud law. Ignore those, and try to see the larger idea. Imagine that the legislature passed a law forbidding fraud using a cell phone -- fraud is already illegal, and so is committing fraud using a regular phone, but the legislature sees that somebody might say that a cell phone is a different kind of technology, and so not subject to the same rules. They write a law, which a court overturns as unconstitutional because of somethingorother (I told you there would be problems with this example, but hear me out). That does not mean that all fraud using cellphones is now legal and that any con man who wants to protect himself should just go out and get a cellphone, and then he's a law abiding citizen. Fraud is still illegal, not to mention morally wrong.

In another recent case from California. A family of eight children was being "homeschooled" by the mother. In this case, the homeschooling consisted of minimal instruction accompanied by a lot of neglect and abuse. The court said that the parents did not have a constitutional right to homeschool their kids when the mother didn't have a teaching credential, that the legal fiction they were using to enroll their children in a private school they never intended to attend was not sufficient to satisfy the law, and that the welfare concerns of these children trumped any of the other pro-homeschooling options. Parent groups were up in arms over this decision, thinking that these judges were trying to legislate from the bench, but the decision made it clear that they were concerned with this one specific case, the Department of Education did not go out that week and start charging all homeschoolers with truancy, and later court decisions affirmed that in general, homeschooling is a legal option in California. This is the way courts are supposed to work. They are supposed to say, "the law can go so far and no farther," not "this law is bad, so the opposite is now legal."

What the California Supreme Court should have done in the same sex marriage case is what the New Jersey courts did in a similar situation. They found that the state's law forbidding same sex marriage was unconstitutional, but when striking down the law, gave the legislature six months to either write a law that was constitutional, or write one that allowed same sex marriage. It's the legislature's job to write laws, not the court's.

1 comment:

mike said...

> "this law is bad, so the opposite is now legal."

That's not what they did. It's more like the ruling on whether VOIP calls or voice messages are legal to wiretap by way of installing a trojan on your machine. There was this notion of wiretap and the FBI started arguing they could put stuff on your computer because of existing wiretap laws, and the court had to rule whether the old terminology covered the new use case.

Fifty years ago, it was universally understood that marriage meant one man, one woman. Recently, people started using the term to refer to other relationships. The court was asked to rule about whether the old terminology covered the new use case. They ruled that it did, under the current constitution.