An Exciting Day for the Judicial Branch

Domestic Policy, Family Issues, Grand Schemes and Government, Rights Reason & Religion, RML — By on May 27, 2009 at 5:10 am

This morning dawned with the Obama administration’s announcement of his nominee for Justice Souter’s replacement.  The well-managed leaks from the West Wing made sure Sonia Sotomayor’s name was already familiar in the press, but commentators have found plenty to discuss on air anyway.  It seems the old partisan battlelines are being drawn, though as some have said (including our very own Dr. John Mark Reynolds), the GOP would be wise to save its limited political capital for another fight.  There will be plenty of those!

Judge Sotomayor is a brilliant choice for Obama’s first nominee to the Supreme Court.  Though many on the Right will try to paint her as a radical liberal loose constructionist, her record shows Sotomayor is an experienced, methodical judge who painstakingly examines the intricacies of the law.  While she enthusiastically advocates an interpretation of the law that promotes equality in cases of race and gender discrimination, her ruling from the bench has demonstrated her work as a jurist who considers each case on its own terms.  She has frequently left idealism aside in order to reach a decision that accurately applies the principles of the law.

A lot will be said about comments Judge Sotomayor made at a 2005 panel discussion at Duke University Law School, which have been circulating on YouTube ever since her name was mentioned in a pool of likely candidates for nomination:

All of the legal defense funds out there, they’re looking for people with court-of-appeals experience, because it is – court of appeals is where policy is made.  I know this is on tape, and I should never say that, because we don’t make law, I know. [The audience laughs.] OK, I know, I know. I’m not promoting it, I’m not advocating it, I’m, you know. Um. OK.

It lacks eloquence, as off-the-cuff remarks often do, and seems to advocate unbridled judicial power.  The trouble with using this statement to prove Sotomayor is a radical revisionist who legislates from the bench is twofold.  First, her record simply doesn’t show that’s the case.  Second, it’s just a little civics 101.  Someone, usually the White House, proposes policy.  Congress enacts legislation to put that policy in action.  The Executive Branch, usually the bureaucracy, executes that policy.  But in the policymaking process, the courts determine what the law says.  That interpretation determines what the policy looks like in practice.  Instead of fearing a radical jurist, we should be delighted that a nominee to the Supreme Court recognizes that power and, so far, has cautiously exercised that power.  Let’s hope for a quick confirmation full of excellent debate over constitutional interpretation!

Of course, the more exciting judicial news of the day came around 10am Pacific time from the California Supreme Court.  In a six-to-one majority, the Court upheld the voter-approved ballot initiative to ban gay marriage, Proposition 8.  Immediately upon receiving the news, scores of protestors crowded the streets of San Francisco and other California cities, railing against the blow to human rights and calling the justices all manner of names.

Regardless of where you stand on gay marriage, however, you have to accept the legality of the situation.  The California Supreme Court wasn’t asked to rule on gay marriage at all.  In fact, its previous ruling on the subject, In re Marriage Cases in June of 2008, overturned voter initiative Proposition 22, a 2000 ballot initiative that defined marriage as the union of a man and a woman.  Likewise, the 2008 ruling precipitated Proposition 8, which amended California’s constitution to prevent same-sex marriage.  The question before the Court for today’s decision was simply whether or not the Constitution had been legally amended by voter initiative.  Was it an amendment, which the California constitution allows voters to determine in general election, or was it a revision, which is a legislative matter?

The question came to whether or not Proposition 8 was presented to voters in the right form, and whether or not it substantially changes the constitution’s equal protection provisions.  The Court decided today not for or against gay marriage, but that the authors of Prop 8 had done their homework while drafting the amendment.  Unfortunately, it was not in the Court’s jurisdiction to decide whether or not it’s idiotic to allow 50.1% of voters to substantially amend the state’s constitution.

Gay marriage proponents vow tonight that the fight isn’t over.  For now, in California, it seems it may be.  Much more substantial changes need to be made to the method of constitutional amendment, or a small percentage of the electorate must be convinced to overturn the amendment in the next election for anything to change.  After all, Prop 8 passed by a margin that was hardly decisive.  But even then, the fight won’t end here.  Ultimately, gay marriage is a federal issue, and must be decided by the Supreme Court.  It is the ‘full faith and credit’ clause, not any lingering moral code set forth by the Framers that pushes the argument into the Supreme Court’s jurisdiction.  And, it seems with the recent action on the issue in Iowa, Washington D.C., New York, and elsewhere, we won’t be able to ignore the federal battle for much longer.  The state initiatives are just a prelude to the moral conversation we must have on the issue.  Its outcome will determine who we are. ‘



  • ucfengr

    It seems the old partisan battlelines are being drawn, though as some have said (including our very own Dr. John Mark Reynolds), the GOP would be wise to save its limited political capital for another fight.

    Capital is only useful if it is put to work. I would be interested in finding out where you think the GOP should be investing their “limited political capital” if not here. Congressional elections are only 18 months away, and the GOP is going to have a tough time if they aren’t able to draw a distinction between themselves and Obama. This seems as good a place as any to start making that distinction.

  • http://friendfeed.com/cyclingroo Lorin Olsen

    Here is a good piece that should provoke much discussion amongst the evangelical community. While the talking head community on the right is unanimously aligned against Sotomayor’s nomination to SCOTUS, there are other voices on the right that should be carefully considered. At this time, I am disinclined to support Sotomayor. However, I am praying for her, Justice Souter and SCOTUS.

    This comment was originally posted on FriendFeed

  • evelynbakerlang

    ucfengr,

    I’m not sure if it’s in the GOP’s best interest to begin defining itself by opposing a competent, moderately liberal judge in her appointment to the Court. (Though as a liberal, I do admit I would like to see the GOP spin its wheels a little bit and lose momentum it might have for fighting policy I want to see enacted by Congress) It seems to me that Sotomayor is hardly a nightmare for conservatism on the Court, and if the GOP wants to regain control of Congress in 2010, political capital would be more wisely spent on issues like health care or national security, not alienating Hispanic voters by opposing the first Latina Supreme Court justice for purely partisan reasons.

    But, as I said, if the GOP wants to do that, it will only give Democrats in Congress more sway with voters.

  • ucfengr

    I’m not sure if it’s in the GOP’s best interest to begin defining itself by opposing a competent, moderately liberal judge in her appointment to the Court. (Though as a liberal, I do admit I would like to see the GOP spin its wheels a little bit and lose momentum it might have for fighting policy I want to see enacted by Congress)

    I don’t accept your premise of Sotomayor’s competence or moderation. Also, since you admit to wanting to see the GOP “spin its wheels”, I question whether following your advice would be in the best interest
    of the GOP or conservatives.

    not alienating Hispanic voters by opposing the first Latina Supreme Court justice for purely partisan reasons.

    It always amazes me how liberals can launch horribly racist (and sexist) attacks at Condi Rice, Clarence Thomas, and Michael Steele for “purely partisan reasons” and suffer no repercussions from black voters, but the slightest criticism for conservatives causes (insert current politically correct name for favored race/sex here) to run for the Democrat hills. I am not sure I accept this premise either.

  • smmtheory

    I’m not sure if it’s in the GOP’s best interest to begin defining itself by opposing a competent, moderately liberal judge in her appointment to the Court.

    It’s like the old Jedi mind-trick Luke, as in – “these are not the droids you’re looking for” – only the master is not Obi-Wan Kenobi.

  • ucfengr

    Someone, usually the White House, proposes policy. Congress enacts legislation to put that policy in action. The Executive Branch, usually the bureaucracy, executes that policy. But in the policymaking process, the courts determine what the law says.

    No, the courts are supposed to determine whether the law is in compliance with the Constitution, not to determine what the law says. Congress writes laws, not judges. This is nonsense.

  • smmtheory

    the Court upheld the voter-approved ballot initiative to ban gay marriage, Proposition 8.

    This is untrue as well. Proposition 8 was an affirmation that marriage is between one man and one woman, not to ban people from marriage because they think they are gay.

  • OlderAndWisecracker

    She is simply not that well qualified – the author of this article is drinking the Obama koolaide. She has been overturn on 60% of appeals to her judgments. Her performance is mediocre at best. Certainly not the “best of the best” we need for the Supreme court. She is more along the lines of Harriet Myers under Bush – a political nominee, not one of the best legal minds. A white male with her thing performance credentials would never have been nominated.

  • OlderAndWisecracker

    thing => thin. forgive the typo.

  • OlderAndWisecracker

    Let look at one example that decimates your suppositions and assumptions about Sotomayor; this is a case that demonstrates her hard prejudices toward liberal causes is the case of Frank Ricci.

    He is the fireman who sued because he took a promotional test, he and others, and was denied the promotion simply because of his race (in spite of scoring higher on the test). A case that came to the second circuit court, and Judge Sotomayor summarily dismissed it.

    It tells us a lot about her judicial philosophy. Consider that Judge Jose Contrera (A Clinton appointee) on her court was upset by her dismissal of this. ALso consider that she was not willing to recognize the serious constitutional issues.

    Those tell us that she really is a believer in the racial spoils system.

    She is a person who said in a speech that she would hope that a wise Latina woman would come to better conclusions as a judge than a white male.

    Imagine if you heard someone say the reverse. He would be run out of town as a racist and a sexist.

    Sotomayor is bad, a wrong choice, and not the “moderately liberal” you seem to be unjustifiably painter her to be.

    Do some more investigation, beyond reading Democrat Party propaganda and Obama press releases.

  • evelynbakerlang

    Oh, but guys, the Democratic koolaid is just so much more tasty than the Republican koolaid!

    In seriousness, however, I’m interested to hear some arguments against Sotomayor’s record. I agree with you, OlderandWiserCracker, that the firefighter case is odd. In fact, I’ve yet to read anyone (including the NYT) who doesn’t find it odd. I eagerly await her clarification of that decision during the confirmation hearings.

    However, two things come to mind concerning it:
    1. It seems in this case, if Sotomayor’s statements can be trusted, that she ruled against her ‘empathy’ with the firefighters who appealed the suit. It seems this is a case in which she felt the law’s interpretation superceded her personal feelings for the litigants, which if true, is encouraging for someone who will likely become the next member of SCOTUS.
    2. It’s a very odd decision considering the rest of her record. If her judicial record was a string of such decisions, then I think you could make the argument that it’s evidence of an agenda-driven judge. The fact that it sticks out like a sore thumb from the rest of her decisions is what intrigues me about it. Do you have another case in mind that better exemplifies her radicalism?

    As for incompetence – do we measure competence by never having a decision overturned in higher court? I am unaware of such a standard.

    And just to mop up – on Prop 8, smmtheory, I’m afraid you’re just playing a semantics game. Prop 8 supporters would, of course, say the proposition “affirms” marriage as between a man and a woman. In reality, however, it ended the legality of gay marriage in the state, effectively placing a ban on a practice that had been legitimized by the California Supreme Court. I’m not trying to take a side by saying Prop 8 banned gay marriage, I’m just trying to speak accurately.

    ucfengr,

    I was trying to keep my post short since I was tackling two issues at once – I’d be happy to explain how ‘the courts decide what the law says’ refers to judicial review in a further article if you like. I just reverted to the colloquial terms in order to be succinct.

  • smmtheory

    I’m just trying to speak accurately.

    No, you are not trying to speak accurately. The full text of Proposition 8 is – “Only marriage between a man and a woman is valid and recognized in California.” Nowhere in that text is prohibition based upon sexual preference or orientation mentioned. The Proposition treats everybody the same with respect to qualification to marriage. The title (which was an intentionally designed political obfuscation of the issue) was changed from the original by an opponent of the Proposition. I can only surmise that the intention was to play upon feelings and an attempt to generate opposition by inducing guilt in those people inclined to vote for it. It still passed 52.3 percent for to 47.7 percent against even given the manipulation. A 10 percent greater margin for than against is NOT as statistically insignificant as you make it out to be.

  • evelynbakerlang

    Smmtheory,

    If a practice (such as gay marriage) is legal, and then a judicial or legislative action makes it illegal and effectively puts a stop to that practice, the action banned the practice. Just like Prohibition banned the sale of alcohol in the early 20th century, Prop 8 banned gay marriage (which had, until its date of implementation, been a legal action). It’s not a moral judgment, it’s a statement of fact.

    You’re right that there is emotional power in the word ‘banned’, and you’re right that gay marriage proponents have been making full use of that emotional power. However, trying to play a semantics game with the lingo (insisting Prop 8 didn’t ban anything) is a bit too dishonest for me. I know it’s the game, but I don’t like to play it.

    Would it be better if we said “made gay marriage illegal” instead of “banned gay marriage”? Or is that still too emotionally-loaded?

  • ucfengr

    I’d be happy to explain how ‘the courts decide what the law says’ refers to judicial review in a further article if you like.

    So, what you are arguing is that the courts are a “super legislature”, in essence saying that they can say the law says what they want it to say regardless of what the law says or what the legislature intended. In practice, this may be true, but it is not what the founders intended when they were setting up our government and I am surprised that anybody who is not a judge would think it is a positive thing.

    If a practice (such as gay marriage) is legal,

    Gay marriage is legal. There is no law preventing gays from marrying. Noel Coward, for example, was by all accounts happily married even though he was gay. What is not legal is same-sex marriage (and sibling marriage, and parent-child marriage, and…..)

  • ucfengr

    I’d be happy to explain how ‘the courts decide what the law says’ refers to judicial review in a further article if you like.

    If, as you say, “the courts decide what the law says”, what legal argument could you offer against some future court ruling the 13th amendment doesn’t prohibit slavery or the 21st amendment didn’t repeal the 18th?

  • evelynbakerlang

    ucfengr,

    Now I know you’re just playing a semantics game. You know what I mean by ‘gay marriage’, and it’s really not worth dancing around. We should be having a substantive conversation if we want to come to the truth, not pretending to be talking heads making talking points on 24 hour infotainment stations.

    As for the courts deciding what the law says, apparently I need to break it down further than referring to judicial review.

    The courts’ job when it comes to legislative interpretation is to try cases in which the application of the law is in question, determine its constitutionality, and determine whether or not it has been properly applied.

    By constitutionality, I mean measuring it against the US Constitution and determining whether or not it is within the boundaries set for government action in that founding document.

    By proper application, I mean that in examining a specific instance, the courts may decide whether or not any action taken in the name of the specific law holds to the legislative intent of the law in harmony with constitutional principles and boundaries.

    This investigation by the courts is how we define more specifically what the law is in practice and whether or not it is properly applied according to constitutional principles… which is a long-winded way of saying ‘what the law says.’

    But if it was just that choice of words that you object to, feel free to ignore them.

  • smmtheory

    Evelyn,
    I seriously doubt you are really interested in having a substantive conversation. The only thing you have done so far is pooh-pooh our arguments as semantic games instead of addressing the substance of the arguments.

    In 2000, Californians voted 61.2 percent to 38.8 percent in favor of Proposition 22 which stated – Only marriage between a man and a woman is valid or recognized in California. That law stood for 8 years before the mayor of San Francisco illegally started issuing marriage licenses to men and women who had no intention of following the law but instead intended on pretending their relationships were marriage. Point out, if you can, what it was about that law that was unconstitutional.

  • evelynbakerlang

    ucfengr,

    I’m really not trying to play a semantic game – I’m simply trying to have a conversation about the recent California Supreme Court decision concerning Prop 8. I assure you, I have no agenda in beginning the conversation. On the contrary, I’m still seeking the truth in this matter.

    As far as constitutionality is concerned, the state supreme court ruled that Prop 22 was unconstitutional (based on its conflict with the California constitution’s equal protection provisions), and I quite agree with the court’s decision. It also ruled that Prop 8 was a legitimate constitutional amendment, and I quite agree with that ruling as well.

    Where I think the rubber meets the road is on the issue of gay marriage (or do you want to call it same-sex marriage? Is there truly a difference as the terms are understood both legally and colloquially?). First, is same-sex marriage constitutional? Is its prohibition constitutional? (explicitly, the US Constitution is silent on the issue, after all – which really only matters in relation to the full faith and credit clause) Second, is it moral? And third, is it permissible, if biblically immoral, to allow it (as we allow freedom of religious expression, for instance) in a secular society?

    Those are difficult questions to which I do not pretend to have an answer, but I think we must all find those answers in the near future if the issue of same-sex marriage is going to be resolved on a federal level. And I think the church must choose very wisely when it comes to political action on this side. Our decision as representatives of Christ will affect many souls, and it’s not an easy decision to make.

  • smmtheory

    (based on its conflict with the California constitution’s equal protection provisions)

    Except that you can’t explain any better than the California Supreme Court did with it’s tortured and waterboarded logic why that law did not protect all citizens equally. They declared unconstitutional a law that was valid using invalid reasoning and you agree with that. Why?

    And I think the church must choose very wisely when it comes to political action on this side. Our decision as representatives of Christ will affect many souls, and it’s not an easy decision to make.

    If the church is smart it will back the same position that Christ held, that marriage is only between a man and a woman. If you desire representing Christ, that is the only decision you can come to.

  • Alex

    I love how all the democrats think that conservatives should save their political capital. What are we suppossed to save it for? It’s not like the democrats are going to change their plans on health care because we haven’t argued with them for a few weeks.

    I also think that it is foolish to worry about upsetting a minority group etc. Liberal hispanics are going to vote democrat whether conservatives speak up or not. And, ultimately, I think most conservative hispanics will look past race politics and support conservatives based on issues. Liberals act like conservative hispanics are brain damaged or something. If we make logical arguments and propose sound policy we will earn the support of hispanics.

    We need to stand up for ourselves. Yes, we might alienate someone, probably aliens, but if we do our jobs right we will also gain votes. The votes everyone is afraid of losing were never going to be ours, whether we put up or shut up.

  • http://kevinjmiller.blogspot.com/ Kevin

    Unfortunately Evelyn I have to strongly disagree with your opinion of Ms. Sotomayor. My investigations of her records and actions have shown me that she is not suited for the Supreme Court by temperament, intellect or judicial competence. She has a reputation as a bully on the bench, her opinions are often poorly reasoned and written, and she ignores settled law to advance her own liberal agenda. Just say no to identity politics.

  • ucfengr

    the state supreme court ruled that Prop 22 was unconstitutional (based on its conflict with the California constitution’s equal protection provisions), and I quite agree with the court’s decision.

    Then, on what basis could the court rule that prohibiting sibling marriage is constitutional? If two people of the same sex can get married, why can’t sisters get married? And if sisters can get married (and there’s really no reason why they can’t if we use your reasoning), on what basis could you prohibit marriage between a brother and a sister? People on your side of the issue foolishly believe that you can open Pandora’s Box a little and just let out the things you want to, but it doesn’t work that way. Once you say that the right to marry whom you want is a constitutional right, then there is no legal basis for opposing marriage between any two, or even group of people. If you want to talk about dancing around an issue, this is where your side is doing some serious jitterbugging.

  • Evelyn Baker Lang

    Sorry for the delay in responding; last week was the end of the school year with all its madness, and a close friend had a baby on Friday night, so I’ve been busy!

    smmtheory,

    I quite agree that the church needs to adopt a stance toward gay marriage that is solidly and authentically biblical – and it’s quite difficult to read the Bible in its historical context and still wrangle justification for gay marriage in it. The decision before the church is not a moral judgment on gay marriage – Scripture makes that – but rather how to communicate that truth publicly. Is it a political issue? If so, how should it be addressed? We don’t want to turn people away from Christ because we didn’t think it through and, as St. Paul advocates, “become all things to all men.”

    Alex,

    Like I said earlier, after the last disastrous 8 years, I’m happy to watch the GOP flounder around for awhile wasting its energy on futile fights, except that I think our system of government works best when both parties are at their height, fighting for ideological rather than zero-sum reasons. Fighting Sotomayor isn’t a smart political decision, and winning the fight and keeping her off the bench will only inspire the Obama administration to play more to its base and nominate someone far more liberal. And that’s just guessing that with an overwhelming majority in Congress, the Democrats could somehow manage to lose the confirmation fight, which is highly unlikely. I just think there are more important things for the GOP to focus on, to keep both parties, and our country, strong.

    Kevin,

    I fail to see how any of those examples (1) set Sotomayor significantly apart from other justices who’ve sat the bench in the past (and some who sit there now!) (2) prove her incompetence (though they should, if true, raise some questions about the glowing praise she’s received – though that may just be politics) or (3) in any way have anything to do with identity politics. I fear you’re regurgitating talking points rather than making an argument. If you have a good reason to see her as a proponent of identity politics, supported by evidence from her decisions on the bench over the course of her career, please present it!

    ucfengr,

    I’m surprised you know what side of the issue I’m on while I’m still debating it myself. Would you please tell me why I chose the side I did? I’m curious. :)

    In seriousness, though, my comment about Prop 22 had nothing to do with the morality of gay marriage. I just remarked that the California Supreme Court was right to conclude that the proposition was in conflict with the state constitution. Likewise, the Court was correct to conclude that Prop 8 legally amended the state constitution. Neither statement has anything to do with gay marriage itself, merely the constitutionality of two different propositions.

    Perhaps if we pretended that the issue at stake was owning puppies, we could discuss this issue more intelligently. It seems that anytime it involves sex, we lose our ability to discuss the legal issues surrounding an proposed law or court case.

  • http://kevinjmiller.blogspot.com/ Kevin

    Evelyn writes: I fail to see how any of those examples: (1) set Sotomayor significantly apart from other justices who’ve sat the bench in the past (and some who sit there now!)The “bully on the bench” was one of the key points used against Robert Bork by the liberal left. It’s not one I’ve seen used since then. Now that that one of their own is on the nomination block this question is being studiously ignored.
    (2) prove her incompetence (though they should, if true, raise some questions about the glowing praise she’s received – though that may just be politics)I consider it highly likely to be incompetence for an appeals court judge to rule in direct conflict with a recent Supreme Court ruling, particularly when the position exposed by the lower court judge was explicitly invalidated in the higher court ruling
    or (3) in any way have anything to do with identity politics.The pass she is being given, as evidenced by the “glowing praise” she is receiving from many quarters, on these issues and others is IMNSHO directly related to her racial and social identity. That’s called identity politics.

  • Evelyn Baker Lang

    Kevin,

    I think #2 is your strongest argument. #1 and #3 really only criticize the methods Sotomayor’s supporters are using, and don’t say anything about Sotomayor’s actual qualifications or actions, just on how they’re being spun.

    #2 does present some concern, which is why I think it should be investigated. I’m interested to hear Sotomayor’s explanation of that ruling as well as the recent one concerning the firemen. I’m not sure it alone (or the fireman decision, which really has yet to be explained at all) presents an incompetent judge. It could, but it seems like we’re rushing to that conclusion, and those who are arguing for it are the ones who haven’t read the official decision or her specific arguments.

  • Alex

    Evelyn,

    You’ll be happy to know that I don’t really like either party at the moment. However, aside from social issues, what is the Obama administration doing that the Bush administration didn’t do? Honestly, I’m having trouble thinking of any issues other than climate change legislation. This is a serious question.

    I was annoyed when the bush administration ran up the deficit and expanded government control. But it was somewhat understandable given the war and some of the security issues we have. I was really pissed when they started pushing the tarp program and all the other anti-capitalist BS that was suppossed to save companies. Imagine my surprise when liberals, who whined for eight years, came in and expanded the bailouts, forced states to take gov. money, bought majority shares of private businesses, fired CEO’s, and continued the wars. It looks like the Bush administration on steroids.

    I’m sick of both parties. The only good thing is that I don’t live in California anymore. At least I got my tax return on time. The sad part is I’ll probably end up paying taxes to bailout that a** backwards state gov.

  • http://kevinjmiller.blogspot.com/ Kevin

    Evelyn; Just to be clear “#1″, “#2″ and “#3″ came from the numbering in your first response, not my original post.

    The first matches up, and I grant it is not the most compelling argument, but it still is fundamentally about Ms. Sotomayor, not her supporters. Yes, they are hypocritically ignoring this question, but she is the one who is considered a bully on the bench by those in her field.

    “#2″ is the core of my issue with her. It actually encompasses two of my original objections, with the “Maloney v. Cuomo” case being a specific example where she really does not appear to be particularly competent. The second URL I listed described, but unfortunately did not specifically identify, other examples of her her less-than-stellar judicial work. This issue, including the apparent existence of multiple examples, is in my opinion sufficient in and of itself to disqualify her from the Supreme Court.

    The firefighter case is one that has also been mentioned in this vein, but frankly that one is not very compelling to me. I do disagree with her ruling, but it does appear to be in the gray area and it does not appear to be taking a position that was recently explicitly rejected by the superior court.

    I’ll also grant the “identity politics” was a throw-away line that says more about her proponents than her. However, it is worth noting that she was the one who said the “wise Latina woman” line, and she does not appear to be objecting in any way to her race and social upbringing being used to push her onto the Supreme Court.

  • smmtheory

    I quite agree that the church needs to adopt a stance toward gay marriage that is solidly and authentically biblical – and it’s quite difficult to read the Bible in its historical context and still wrangle justification for gay marriage in it. The decision before the church is not a moral judgment on gay marriage – Scripture makes that – but rather how to communicate that truth publicly. Is it a political issue? If so, how should it be addressed? We don’t want to turn people away from Christ because we didn’t think it through and, as St. Paul advocates, “become all things to all men.”

    Are you deliberately trying to be so contradictory of yourself? I almost get the impression that you are not sure of the moral implications of recognizing homogamous relationships as marriage despite Jesus’ teaching on it… that you are not sure boldly telling the truth is the correct thing to do… that you do not believe that we are called to be prophets to the ages… and most confusing of all, it seems as if you may believe that taking a political stand against calling homogamous relationships marriage is somehow being all things to all people.

    Perhaps if you could clarify why you think proposition 22 did not protect everyone equally you might come closer to discovering where you really stand.

  • Evelyn Baker Lang

    Kevin,

    I think we can agree that there are some decisions from Sotomayor’s career that are curious at best, disturbing at worst. I just want a solid examination rather than a cursory dismissal before deciding she’s disqualified for office (such as your second link with its vague implications). In any case, I think we’ll both be paying close attention to the confirmation hearings.

    Alex,

    I’m with you – I’ve been disappointed with some Obama administration actions (specifically the “national security” stuff and education so far). However, I think we’re seeing a lot of change from environmental policy, as you noted, and foreign policy (mostly in tone, but that’s going to make a huge difference with both allies and enemies), and hopefully, we’ll see it soon with health care reform. I think a lot of what we’re seeing is a team of people who thought ‘idiots! we could totally do that better!’, then walked into the job and went ‘oh, this is going to be hard to change. Oh, that’s why y’all did it that way…’ There will be a lot of that for awhile, especially if disgruntled Democrats in Congress has anything to do with it.

    smmtheory,

    I’m not being contradictory. I think you might be projecting beliefs that you disagree with on me, and then are surprised when I don’t espouse them. :)

    In any case, I firmly believe it is the duty of the Christian to preach God’s truth to the world. But I don’t see supporting Prop 8 as necessarily the only way, or even the best way, to speak truth about homosexuality. I think an argument could be made that a Christian in a democracy has a duty to use political power in order to preserve the morality of society on pragmatic grounds that societies that follow God’s rules seem to do better than those that don’t, but that’s not the same thing. It’s perfectly compatible with biblical Christianity to oppose gay marriage from Scriptural grounds and yet not oppose Prop 8 (I’m not sure if you can support it, but that’s where I’m still working that through).

    The fact is, we live in a pluralistic society in America that was designed to be pluralistic. The government isn’t the church. When the question is whether or not the church can sanction gay marriage, that answer is clear: a resounding no. But does it necessarily follow that a Christian must also use a secular government to prevent the legality of such an institution in order to follow Scripture? If we follow that logic to its end, it turns into legislating morality, which cannot be done (not unless we want to go back to the old covenant, of course).

    I understand this is a big argument, much bigger than the issue of gay marriage, but I want you to understand that I’m not advocating moral relativism (which you seem determined to prove). The church has clear guidance for its actions on this matter. The state, however, is not the church. What muddies the waters in this argument is what the role of the Christian is as a political agent in a secular state. Is gay marriage the kind of sin, like murder, that must be closely guarded through legislation? Or is it, like adultery (which is equally damaging to the soul as a sexual sin), something that is best left to the church to preach against, and not something the state can uphold morally?

  • ex-preacher

    From the AP:

    - – - – -

    Former Vice President Dick Cheney said Monday he supports gays being able to marry but believes states, not the federal government, should make the decision.

    “I think, you know, freedom means freedom for everyone,” Cheney said in a speech at the National Press Club. “I think people ought to be free to enter into any kind of union they wish, any kind of arrangement they wish.”

    Cheney, who has a gay daughter, said marriage has always been a state issue.

    “And I think that’s the way it ought to be handled today, that is, on a state-by-state basis. Different states will make different decisions. But I don’t have any problem with that. I think people ought to get a shot at that,” he said.

  • smmtheory

    but I want you to understand that I’m not advocating moral relativism (which you seem determined to prove)

    You seem to be carrying my water for me. Tell me how Proposition 22 did not protect everybody equally. All it said was – Only marriage between a man and a woman is valid or recognized in California. While you’re at it, tell me how that is a moral statement on homosexual relations. Why do you insist on allowing gay politics to turn marriage into a referendum on homosexual relations?

  • Evelyn Baker Lang

    smmtheory,

    In the Court’s estimation, Prop 22 didn’t adhere to the California State Constitution’s equal protection provisions, which upheld the rights of people to marry despite race, creed, or sexual orientation. If you’re arguing that gay people still had the right to marry under Prop 22, provided they wanted to marry someone of the opposite sex, you’re just playing a semantics game. That’s not freedom of choice anymore than telling an African-American living in Mississippi 40 years ago that he could marry anyone he chose provided that person was also African-American preserved the rights of interracial marriage. The analogy is imperfect, but legally, the situation was the same before the recent decision on Prop 8.

    My reference to legislating morality was in reference to the reason behind Prop 22, not its text. How was Prop 22 not enacted in order to impose biblical morality on a secular population?

    The problem with this discussion, smmtheory, is that we’re doing what American society does: we’re using one word, marriage, to describe two completely different things. On the one hand, biblical marriage is a sacrament, an institution ordained by God with Him as the center of the relationship. On the other, legal marriage is a legal institution used for purposes of determining taxation, inheritance, and next of kin rights. Biblical marriage is recognized by the state, but it is by no means the only union of two individuals recognized by it. Perhaps we should have two different words to describe the two institutions to avoid confusion. Actually, that would help the national debate quite a lot.

    In any case, when I talk about gay marriage, I’m referring to legal marriage. It is not and cannot be biblical marriage. But we have different questions to ask of legal marriage, especially when it comes to our duty as Christians in the political arena.

  • http://kevinjmiller.blogspot.com/ Kevin

    I think we can agree that there are some decisions from Sotomayor’s career that are curious at best, disturbing at worst. I think you’re being generous. To me those cases show a disturbing trend bending and ignoring the law in the pursuit of liberal judicial activism. I just want a solid examination rather than a cursory dismissal before deciding she’s disqualified for office (such as your second link with its vague implications). In any case, I think we’ll both be paying close attention to the confirmation hearings I get the sense your default position is she that belongs on the Supreme Court and her opponents have to prove otherwise. In your opinion what would it take for you to say she does not belong?

    My initial position was neutral. Now it is that she does not belong there unless she can provide credible alternative explanations. NBL IMNSHO.

    As far as this being a cursory dismissal one needs to remember that Senator Obama did just that to Roberts and Alito. If I had the opportunity to do so right now I would likely vote against her on political and ideological grounds alone.

  • ucfengr

    In seriousness, though, my comment about Prop 22 had nothing to do with the morality of gay marriage.

    In all seriousness, where, in any of my comments did I reference the morality of “gay marriage”? What I did question was if marriage is a civil right, on what basis can you deny marriage to any group currently prohibited from marriage? A point you seem reluctant to address.

  • http://kevinjmiller.blogspot.com/ Kevin

    p.s. This article contains a pretty comprehensive and to me an unbiased summary of her more notable rulings. The picture is becoming clearer, and it’s not one I think becoming of a potential SCOTUS justice.

  • smmtheory

    On the one hand, biblical marriage is a sacrament, an institution ordained by God with Him as the center of the relationship. On the other, legal marriage is a legal institution used for purposes of determining taxation, inheritance, and next of kin rights. Biblical marriage is recognized by the state, but it is by no means the only union of two individuals recognized by it. Perhaps we should have two different words to describe the two institutions to avoid confusion.

    And you have nerve to accuse me of playing semantic games. You even go to the length of stipulating the difference between the homogamous relationship and non-homogamous relationship by the ‘gay’ qualifier. If that is not a sure sign that the two types of relationships should not be referred to the same way, I don’t know what is! And to top it off, you are pontificating that the problem with the discussion is the conflation of meanings between the secular and non-secular usage of words while at the same time conflating the secular meaning with a non-marital relationship.

  • Evelyn Baker Lang

    ucfengr,

    I must have misunderstood you earlier, than. You asked me how Prop 22 was a moral statement, and I was just reminding you that I never said it was – I said the issue of gay marriage is, but that my comments on the propositions were merely on the legality of those propositions. Sorry if I misunderstood what you were asking.

    smmtheory,

    You don’t believe there’s a difference between marriage sanctioned by the church and entered into by two believers and, for instance, common law marriage? Or a civil ceremony at a courthouse? While I agree that any sexual relationship binds people together (as St. Paul tells us), I think there’s a difference between the covenant of marriage and the state’s legal recognition of a civil partnership. I don’t know about you, but I’m not willing to give the state the power to define a sacrament, so I’d like to see some distinction between state-sanctioned marriage and marriage legitimized by the church. Our government recognizes both, but that doesn’t make them the same thing – and perhaps this is the core of the argument about the legal status of gay marriage.

    Note, I’m not making an argument for or against the morality of gay marriage – just wondering how the secular state of a pluralist society should respond. It may be that it’s best for the state to ban it, or it may be best for the state to allow it. I’ve yet to see convincing arguments on either side of the issue in this thread, however.

  • smmtheory

    but I’m not willing to give the state the power to define a sacrament

    I keep waiting for you to post a correction on this since it is a literal impossibility. Or are you going to try playing that whole secular-v-nonsecular semantic game with the definition of sacrament?

    It may be that it’s best for the state to ban it, or it may be best for the state to allow it. I’ve yet to see convincing arguments on either side of the issue in this thread, however.

    Probably because you are not entertaining the possibility that ucfengr or I may be right in our arguments. Marriage laws arose long before the necessity for determining taxation, inheritance, or next-of-kin issues, yet you put forth the fallacious assertion that those were the over-arching purposes of the state’s recognition of marriage. As long as you maintain such bass-ackward non-sensical constructs as the basis for your reasoning, your reasoning will continue to be faulty. So pick a side and argue for or against perverting the definition of marriage to include the non-marital homogamous pairing.

  • Evelyn Baker Lang

    smmtheory,

    I’m having trouble understanding both your hostility and your position on marriage as it exists as a legal institution. Would you mind explaining your position, and why you don’t see a difference between the sacrament of marriage and the existence of plain ol’ heterosexual marriage? What is required for a union to be sacramental, in your view? Is it merely that the two people involved be members of the opposite sex, or is there something more to it than that?

    To (hopefully) help the discussion: I’m assuming that there is a difference between a marriage between two Christians united by faith in Christ and a marriage between two non-believers or members of another religion. The Bible seems to teach very clearly that marriage as a Christian sacrament is unique from other forms, though it also affirms the validity and spiritual importance of mixed-faith marriages (such as when St. Paul exhorts Christian women not to abandon their pagan husbands but rather to use their positions as wives to bring the Gospel to them).

    Do we share this belief, or do you have a more broad definition of the sacrament of marriage than that? I’m genuinely confused about your position at this point, and I suspect we may not be disagreeing in principle, but rather in both of our ambiguous use of terms during the discussion. Let’s disambiguate so we can see what we mean.

  • ucfengr

    You asked me how Prop 22 was a moral statement,

    I did? I can’t find where I did that, nor do I recall doing so; would you cite the relevant comment please?

    but that my comments on the propositions were merely on the legality of those propositions.

    My comments on the “gay marriage” debate have been focused on trying to find out how, if marriage is a civil right, any group can be denied that right. If 2-men or 2-women getting married is the exercise of a civil right, why wouldn’t the marriage of 2 brothers or 2 sisters be (I can envision perfectly legitimate reasons for them wanting to do so)? And, if 2 sisters or 2 brothers can get married, why not a brother and a sister? I do understand your reluctance to engage in this debate, to do so would expose the faultiness of your reasoning and force you to think about the consequences of your position, something liberals tend not to like to do. Results don’t matter, only intentions.

  • Evelyn Baker Lang

    ucfengr,

    1. Like I said, I must have misread you on the whole moral issue of Prop 22. And again, I apologize.

    2. The question of marriage being a civil right is an interesting one. Generally, it seems marriage is a civil right (given Court decisions concerning interracial marriage). If that’s so (and we can debate that), there are still restrictions (such as marriage of siblings, or marriage of a adults to minors) and these restrictions are in place to protect society from harmful consequences of relationships (genetic issues in the case of the former, prevention of exploitation in the case of the latter).

    I’m not sure you have to argue that marriage is a civil right in order to argue against gay marriage. Either gay marriage falls into the first category (like interracial marriage) and is a right that should be protected, or it falls into the second category and is a union that is harmful to society and should be banned.

    So what harmful effects does gay marriage have on society?

    (Despite your clear hostility, I’m just trying to understand your argument. I’m not trying to avoid anything or make a point – I really want to know what you think about this.)

  • ucfengr

    there are still restrictions (such as marriage of siblings, or marriage of a adults to minors) and these restrictions are in place to protect society from harmful consequences of relationships (genetic issues in the case of the former,

    Since genetic issues really don’t apply to a “same-sex-sibling” marriage, on what basis would you oppose it?

    prevention of exploitation in the case of the latter).

    I can envision circumstances where it might be advantageous for a parent and an adult child to marry. Given two adults, on what basis would you oppose such a union? And please, let’s leave the genetic argument aside; when you accept “same-sex” marriage, you really separate child-bearing and marriage, so it’s really not relevant. Marriage becomes a vehicle for the acquisition of various legal rights and government benefits, not one for raising the next generation.

    I’m not sure you have to argue that marriage is a civil right in order to argue against gay marriage.

    I’m not arguing that it is a civil right, you seem to be the one arguing that is an equal protection issue, especially by referencing Loving v Va., which is arguing that marriage is a civil right.

    Despite your clear hostility,

    I wasn’t aware the engaging in debate was a hostile act. If you don’t want to debate the issues you write about, I would suggest not opening your posts for comment, or not posting at all.

  • smmtheory

    I’m having trouble understanding both your hostility and your position on marriage as it exists as a legal institution.

    What hostility? You’ll have to explain what you are reading into what I’m saying before I can explain your misunderstanding.

    Would you mind explaining your position, and why you don’t see a difference between the sacrament of marriage and the existence of plain ol’ heterosexual marriage?

    First of all, marriage is by nature heterosexual. Marriage always will be even though the state might allow certain people to pervert their definition of it. Calling a man/wife relationship a plain ol’ heterosexual marriage is superfluous. Calling a man/man relationship or woman/woman relationship a homosexual marriage is using contradictory terminology, thus the drive to pervert the definition of marriage. The only logical conclusion of this impetus to redefine marriage will mean that people like me (who do not recognize and will never recognize the same-sex union as marriage) must needs be prosecuted for hate speech if not some out-right hate crime.

    I’m assuming that there is a difference between a marriage between two Christians united by faith in Christ and a marriage between two non-believers or members of another religion.

    And I think it is a hasty judgment to assume that only marriage between Christians can be sacramental. You also appear to be quite hung up on the whole separation of church and state gobbledy-gook as if you think God wouldn’t deign to have an opinion on the laws of the state, especially if they end up as a perversion of his laws.

  • Evelyn Baker Lang

    smmtheory,

    How do you define ‘sacramental’?

  • http://cinemarshall.com Nate Marshall

    And I think it is a hasty judgment to assume that only marriage between Christians can be sacramental.

    Seriously? I think that there is a rather specific definition of what a Sacrament is.

    You also appear to be quite hung up on the whole separation of church and state gobbledy-gook as if you think God wouldn’t deign to have an opinion on the laws of the state, especially if they end up as a perversion of his laws.

    Are you proposing that we are a christian country? Does God do this equally in other countries? I wouldn’t necessarily say that our constitution is His law, and as we are free willed creation I’m not sure that he is working to change our laws. what would the purpose be? To make us better Christians or make it easier to be Christians? neither of those seem to be something we really need. This isn’t a direct attack on us, there has yet to be a christian martyr in the gay marriage battle. (that I know of)

  • smmtheory

    Are you proposing that we are a christian country? Does God do this equally in other countries? I wouldn’t necessarily say that our constitution is His law, and as we are free willed creation I’m not sure that he is working to change our laws. what would the purpose be? To make us better Christians or make it easier to be Christians? neither of those seem to be something we really need. This isn’t a direct attack on us, there has yet to be a christian martyr in the gay marriage battle. (that I know of)

    I am not proposing any designation at all. What I am saying is that God will judge the nation (and there is Biblical evidence for this) and if our laws are a reflection of his and we are a light unto the world then it will go favorably for us. If not, God will use this nation for other purposes, much as he did other nations throughout history. Scoff if you will, but approximately 1 million abortions a year is beginning to take its toll on this nation. Those are the martyrs you overlook.

    Seriously? I think that there is a rather specific definition of what a Sacrament is.

    There are seven Sacraments defined. If the definition is of exclusivity then it would seem to be presumptiously telling God where and where not to get involved.

    God doesn’t exclusively dispense his Grace with Christians. What you two are implying is that not even a marriage between a Jewish man and woman can be sacramental. You seem to be implying that God would want nothing to do with the marriage of any other couple that were not Christian. I cannot support that opinion.

  • http://evangelicaloutpost.com/?fbconnect_action=myhome&userid=20 Evelyn Baker Lang

    smmtheory,

    I’m still a little fuzzy on what you mean when you say ‘a sacrament’. Do you equate a sacrament with God’s approval, and anything non-sacramental is outside that approval?

    Sacraments are a specific means by which God chooses to grant his grace. I think sacramental marriage and non-sacramental marriage can both be pleasing to God (just as non-Christians can do things that are pleasing to God). Of course God wants something to do with a marriage between two Jews, or two Muslims, or two pagans. But that’s different than calling those marriages sacramental.

    I’m not talking about God’s pleasure, I’m asking how you define sacramental, Christian marriage. From there, I’m interested to find why you object to acknowledging that it is distinct from marriages performed in other religions or civil unions performed at the court house. I’m a bit surprised you’d be opposed to differentiating them, actually.

  • smmtheory

    I’m still a little fuzzy on what you mean when you say ‘a sacrament’. Do you equate a sacrament with God’s approval, and anything non-sacramental is outside that approval?

    And I’m beginning to wonder why you are so anxious to change the subject and play the semantic games with sacramental vs non-sacramental marriage. So far you’ve avoided answering Ucfengr’s questions, and dodged a couple of mine as well. This is the last I will say about this. With a man and woman (no matter what creed one or both of them may be, no matter where they might happen to form the marital bond) following God’s natural law with respect to marriage, there is the capacity for a sacramental marriage, a sign of God’s Grace within their relationship. The same is not true of a man and man (or woman and woman) relationship going contrary to God’s natural law and based upon sodomy.

    Now, if you care to explain how Proposition 22 did not protect everybody equally without relying on the tired, twisted, false and lame reasoning of the California Supreme Court, then I will be happy to continue the substantive conversation. Optionally you could go back and answer Ucfengr’s extremely good questions instead.

  • Evelyn Baker Lang

    I’m honestly not trying to play a semantics game. In fact, I’m trying to clarify the conversation by defining the terms we’re using – I’ve asked a number of questions to try to do so, and those have not been answered. The reason I’ve ignored many other questions is because until we agree on the definitions of the basic terms we’re using, it doesn’t matter what anyone says because we’ll be misreading each other’s arguments.

    We got onto the bunny trail of sacramental marriage because we were having trouble discussing marriage in relation to the state. And that definition is vital to this conversation, because the state is not and cannot be the church, and if the state and the church define marriage differently (which, if we’re to hold to Scripture and yet retain our identity as a pluralist, secular society, they must), we need to know what the difference is between those two definitions. Once we do that, we can discuss same-sex unions and their place in the state.

    And once we do that, then we can really get into the interesting questions about how Christians should vote in a pluralist state on this issue to best protect Christian marriage without violating the principles of the Constitution.

    If you don’t want to do that, that’s fine. I understand itching for a good debate. I just don’t really have the time to engage in a pointless debate, and until we define our terms (particularly what we mean by marriage and sacraments), we won’t get anywhere.

    So perhaps we agree to disagree for now, and when we’re ready to enter the debate seriously and both have time, we can dive back in.

  • smmtheory

    Let me remind you Evelyn:

    And just to mop up – on Prop 8, smmtheory, I’m afraid you’re just playing a semantics game. Prop 8 supporters would, of course, say the proposition “affirms” marriage as between a man and a woman.

    I started out trying to set up the definitions, and you called it a semantics game. The semantics game is really about perverting the definition of marriage to include a non-marital arrangement. Who is really playing the semantics game here? Until the advent of moral relativism, marriage had always been defined as husband and wife, not husband and husband or wife and wife. Moral relativism wants to play the semantic game with the definition of marriage, and calls trying to maintain that definition a semantics game.

    As long as you allow the confusion about the ages old definition of marriage as man and wife to continue, you will continue to be side-tracked. The underlying goal of this push to pervert the definition is not rooted in the desire to get married, but in the desire to gain moral equivalence. What is wrong with calling a homosexual partnership a homosexual partnership and writing laws to cover that relationship? It is not as if legislators desire to keep the volume of legislation to a minimum.