How California made the Wrong Choice the Right Way

NB: Since writing this, I might have even changed my mind. By the logic I put forward here, Loving vs. Virginia - the case which allowed an interracial marriage to take place, despite segregation - should have also been decided in the legislature, not the courts. By that logic, interracial marriage might still be illegal today! Not good!

As readers of Militant Ginger will know, I'm totally in support of same-sex marriage and was intensely disappointed when the California electorate shot down that liberty with their vile amendment to the State Constitution 'Proposition 8.'

However, when the California Supreme Court decided to uphold the amendment during appeal, I felt they made the right decision.

Don't get me wrong - I haven't changed my belief that same-sex couples should have the same right to marriage as heterosexuals. I just feel that this is an issue that's far too important to be decided in the courts.

Proposition 8 was ratified by referendum - the people of California were allowed to personally decide the issue, instead of leaving it up to the state legislature.

52.24% of them voted to redefine marriage as 'between a man and a woman,' obliterating the right same-sex couples previously had to enter into committed marriages themselves.

Sure, the fact that this issue was decided by referendum is incredibly disappointing. California's supposed to be a liberal state and has often led the way in progressive politics. These ballot results exposed underlying conservatism and religious zealotry in what many of us had previous considered 'safe territory.'

But the fact is, the vote was cast and the decision was made.

That it was the wrong decision is not up for debate - but, nevertheless, that's how democracy works. In the words of Thomas Jefferson: "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

When the appeal reached the California Supreme Court, it stopped being about right or wrong and became about democracy and the law - and if the judges had upheld the appeal, it would have thrown everything the issue stands for into disarray.

"Put simply, the appeal complaint is that it's just too easy to amend the California Constitution through the referendum process," wrote Justice George, explaining the Court's decision. "But it is not a proper function of this court to curtail the Democratic process; we are constitutionally bound to uphold it."

7 million people voted to redefine the institution of marriage. Despite questions about the morality of that decision, or whether or not it contradicted the US Constitution, you simply can't ignore the fact that 52.24% of voters said 'this is what we want.'

Conservative pundits like Mark Levin often throw around the term 'legislating from the bench,' but if the seven Supreme Court justices had upheld the appeal, overruling the Constitutional amendment, 'legislating from the bench' would have been exactly what supporters of Prop 8 would have accused them of doing.

To them, it would have been a clear demonstration that those seven voices were more important than their seven million. Any faith in the democratic process would have disappeared forever - 'Prop 8' detractors had already seen their freedoms stolen by the ballot box, now the proposition supporters themselves would see their voices overruled by the courts.

Supporters of Prop 8 would never have accepted a Supreme Court decision to allow gay marriage. They'd have fought against it and won, as same-sex marriages would only continue until they manufactured another court ruling splintering that liberty once again.

The sad fact is; the only sustainable route to securing same-sex marriage is through the legislature. It has to be a freedom secured through democratic methods, otherwise it will never mean as much as the 'gay marriage' laws passed in Massachusetts, Connecticut, Maine and Vermont.

I'm not arguing that same-sex couples deserve the right to marry. I'm open-minded to comparisons between the struggle for gay rights and the civil rights movement. During the battle against segregation and racism, the majority of voters didn't always make what we know today to be the 'right' decision. The same applies today.

But, nevertheless, we have to uphold the democratic process, otherwise it's meaningless.

The good news: In 2010, the gay rights movement will have same-sex marriage back on the ballot - and this time, they'll win that fight. Last time around, less than 5% of votes separated the gay rights movement from victory. I'm confident that they can win those voters over this time.

When that happens - when a majority of Californians take a stand and support the freedom of same-sex marriage - then it'll be a long overdue, permanent victory. One that religious zealots and conservatives can't take away.

Men in Black: How the Supreme Court Is Destroying America

With Justice David Souter's decision to step down from the United State's Supreme Court, speculation is rife as to whom Obama will pick as a replacement.

But, more importantly, it's an opportunity to reexamine the role of one of America's most venerable, yet controversial institutions.

The Supreme Court is exactly that - the ultimate court in the nation. Their role is in interpreting the Constitution - deciding whether laws or rulings violate the fundamental freedoms set down by the nation's founding fathers.

In recent years, however, the Supreme Court has been the target of sustained criticism - most notably from conservatives, who complain that liberal judges have used their positions to 'legislate from the bench' on notable issues.

This is actually a valid criticism - although accusations of bias go both ways. Conservative justices like Samuel Alito and John Roberts can just as easily be accused of making decisions based on their right-wing proclivities rather than the law.

Men in Black: How the Supreme Court Is Destroying America is an in-depth analysis of the criticisms leveled at the Supreme Court, written by Reagan-administration staffer (and conservative talk-show host) Mark Levin.

While Mark Levin is an insufferable blowhard when he's behind a microphone, he does possess two things that other right-wing hacks, like Glenn Beck and Bill O'Reilly, don't - a law degree and a brain.

In 'Men in Black,' Levin accurately points out the Supreme Court's fatal flaw - that a seat on the bench has become a political position, rather than a legal one.

Each of the nine justices on the Supreme Court have their own ideas - which influence how they interpret the law.

Recently, important issues (surrounding gun control and the war on terror, for example) have been decided on 5/4 splits - with almost all of the judges ruling along 'party lines', rather than legality.

This, Mark Levin sneers, makes them guilty of deciding what the law should be, instead of what it is. It effectively takes the power of the people, as represented by their senators and congressmen, and usurps it in favor of nine unelected, unaccountable individuals each with their own political axe to grind.

The failing of Mark Levin's book, however, is that he ends up being just as subjective in his rulings as the judges he's dismissed as 'radicals in robes.'

For instance, Levin attacks the 1944 Supreme Court ruling which upheld the detainment of Japanese detainees (Korematsu v. United States) during World War II - arguing that the ruling was unconstitutional and wrong (which it was - President H. W. Bush ended up paying $1.2 billion in reparations to those Japanese detainees.)

However, he later argued against the 2008 ruling in Boumediene v. Bush (which gave Guantanamo Bay detainees habeus corpus.) Surely that's nothing short of hypocritical - denying one prisoner liberty, while defending that of another.

In the end, it's this enthusiasm for contradictory arguments which undermine the effectiveness of Levin's case. While he nails several Supreme Court rulings (like how affirmative action violates the 14th amendment's promise of 'equal protection') he's less convincing on other topics - delivering somewhat blithe arguments that he emboldens with colorful allusions to 'tyranny' and 'judicial activism.'

At the end of the day, though, Mark Levin makes a convincing point, even if he doesn't offer a viable solution. The Supreme Court has violated its mandate on several occasions and looks like it'll continue to do so in the future.

With Obama's strength in the congress and senate, whoever he picks to replace Souter will no doubt lean similarly towards the left (ironic, as Souter was originally given his position by Bush Snr.)

And while a liberal new justice might mean more Supreme Court decisions I agree with, it doesn't necessarily mean they'll be the right ones.

I'm not entirely sure Mark Levin would agree with me, but I wish we lived in an America in which Aristotle's legal mandate was strictly adhered to:

The Law is Reason, Free from Passion.

Men in Black: How the Supreme Court Is Destroying America by Mark Levin is available from Amazon for $16.95.

256 pages, ISBN-13: 978-1596980099

Guns and Glory

The term 'landmark ruling' is bantered about quite freely by both the left and right.

In reality, it should be reserved for Supreme Court decisions like the one today - in which a 5 to 4 majority defended the 2nd Amendment of the US Constitution. They said it clearly grants Americans the right to own and keep guns in their home for self defence.

Unbelievably, it was the first time in America's 200 year history that the Supreme Court had to decide on this hot issue - which divides right and left as sharply as issues like abortion.

Despite my clear dislike of guns - as I wrote about here - I have to admit that I'm happy with this decision. Why? Because it's clearly the correct interpretation of the Constitution.

The issue arose when a security guard, Dick Anthony Heller, was refused permission to keep a handgun in his Washington D.C. home. The District of Colombia has had a blanket ban on private gun ownership since 1976 - citing the sensible argument that suburbanites don't need weapons.

Which is true - and I fundamentally agree with that principle. However, the Constitution of the United States wasn't written with Washington suburbanites in mind. It was written with the memory of the Revolutionary War fresh in everybody's memory - and the knowledge that the revolutionary army was often made up of farmers and plantation owners bringing their own muskets to the battlefield.

The fact that these private citizens owned guns was the sole reason they were able to fight back against British occupation - and that cemented the importance of private gun ownership in the common American psychology.

But private gun ownership in America was important long after the revolutionary war.

Private citizens with rifles and pistols fought off Mexicans at the Alamo. People defended their plantations and homes against Confederates or Union soldiers during the American Civil War.

In the lawless wild west, a shotgun and pistols were essential to defend your homestead from Indians or desperadoes - or to deter shenanigans in a saloon-room game of poker.

Even during the 20th century, private gun ownership has played it's part. During the days of 'lynchings,' more than a few African American families were saved when 'Pop' scared off the mob with the business end of a twelve gauge.

When corrupt local lawmen wouldn't help, it was the 2nd Amendment (or, at least, the principle of it) which provided the most desperate last line of defence.

So while it's all too easy, in our smug suburban existence, to forget the important role the 2nd Amendment has played in American history, we should make an effort not to.

Yes, it's true. Living in the commuter belt of New York city, I know I don't need a gun. In fact, I'm more worried about my neighbours 'packing heat' than what might occur if we left our homes 'defenceless.'

I've said it once and I'll say it again - a Louisville Slugger is probably the most effective form of home defence out there.

But the issue up for discussion was THE LAW.

Aristotle told us: The law is reason free from passion.

Therefore, as much as I hate guns - passionately, in fact - the only reasonable interpretation of the 2nd Amendment is the one decided on today by the Supreme Court.

Gitmo Detainees to have access to American Courts

Reverse_Vampyr has written an angry post railing against the Supreme Court's decision to give the 270 remaining detainees in Guantanamo Bay access to US Courts so they can challenge their detainment.

I totally disagree with him - this is LONG overdue. Terrorists or not, the idea of holding men indefinitely, without any charges being brought against them, is quite simply disgusting.

It is repellent to everything the American nation and constitution stand for. Just look at the Bill of Rights, which declares that nobody can be 'deprived of life, liberty, or property, without due process of law' and demands the 'the right to a speedy and public trial, by an impartial jury.'

The standard Conservative argument is that these detainees are not American citizens and aren't on American soil - and therefore aren't protected by the US Constitution. That's just an offensively twisted defence. America stands for something - freedom and liberty and justice.

If American troops and American tax payer's money is going to be used to operate a detention facility, it must do so under the umbrella of American laws and ideals. Semantics and spin doctoring aside, Guantanamo Bay is effectively US soil. Therefore, the rules of American society should hold authority there.

The other argument Conservatives make is that 'these detainees are terrorists!'

Well, that's not entirely true. It took two years for him to be released, but one of the 'terrorists' was a 13 year old boy who was released back to his 'country of origin' with no charges being brought against him. He wasn't a terrorist. Logically, not all of the other detainees are, either.

It should be straightforward enough to find out. Hold a trial! Present evidence! Charge these men with something - it doesn't even need to be that convincing. At least abide by the rule of law. Don't just lock them up for half a decade.

That sort of behaviour's more in keeping with the dictatorships America opposes - certainly not appropriate for 'The Land of the Free.'

The fact is, George Bush has gone on television hundreds of times touting the American way of the life and American values. It's entirely hypocritical to claim our society is inherently better than those we oppose when we behave in a manner just as despicable as theirs.

'Homeland security' is one thing - we want our families and nation to be safe. But if that safety comes at the expense of surrendering the basic 'inalienable rights' our forefathers fought and died for, perhaps this nation's not really worth keeping secure.

By holding ourselves to higher moral and legal standards than our enemies, we make ourselves more vulnerable - but I believe that vulnerability is worth living with, to defend something much more important. The founding principles of the American nation.

In the words of Justice Anthony Kennedy: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Once again, I leave the final word to The Great America, Thomas Jefferson:

"The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." Thomas Jefferson to A. H. Rowan, 1798

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Thomas Jefferson to Thomas Paine, 1789.

California Supreme Court gives Thumbs Up to Gay Marriage

The California Supreme Court has overturned a state law banning gay marriage, declaring that it violates the state constitution.

But despite that fact, conservative groups in California are pushing to amend the state's constitution to add a clause: "Only marriage between a man and a woman is valid or recognized in California."

My question is: Why?

I mean, seriously... Why bother? Why is it so important to conservative idiots like the National Organization for Marriage to ban same-sex couples from committing to a life-long relationship?

You don't have to like it. You don't even have to condone it. But this is America and one of the most fundamental rights is that of 'life, liberty and the pursuit of happiness.'

The US Supreme court even recognized that: "Under our Constitution, the freedom to marry, or not marry, resides with the individual and cannot be infringed by the State."

Two people of the same-sex getting married does not affect me in the slightest. It doesn't have any impact on my life whatsoever. Since nobody's life is altered in any way by the right of same-sex couples to get married, why should anybody have to right to oppose it?

By supporting gay marriage, I'm not advocating homosexuality or what conservatives laughingly refer to as 'the homosexual agenda.' All I'm doing is supporting an American's personal freedom. The right to make their own decisions.

I find it hypocritical that so many conservatives vote Republican - the party that's meant to protect Americans from the government interfering in their personal choices.

Conservatives demand the right to bear arms and the right to practice whatever retarded religion they want. Yet when somebody else demands their rights, like two consensual adults deciding to have a committed relationship, the conservatives want to the government to stick their oar in.

What these idiots don't realise is that they're weakening their own positions. After they've empowered the government to decide who can and can't get married, they'll find themselves in a much more vulnerable position when it comes to defending their own rights.

Second amendment gun-nuts and fundamentalist religious loonies really ought to be reaching out to the gay community instead of attacking it. They're both actually fighting the same battle. The conservatives are just too stupid to realise it.

Abortion shouldn't be a political issue...

Over on CK's blog, he's gearing up for a month-long debate on an issue about which he feels very strongly. Abortion.

Totally unlike England, where the topic is wisely avoided, American politicians stake their political territory with their attitudes towards abortion.

No other social topic polorises the American people. CK himself admits that Democratic "financial and social policies would fly with most of the Christian right, but their stance on abortion forces them to vote predominately Republican."

It's a very thorny topic - so I thought I'd throw my two cents in.

When it comes to abortion, I have two positions.

1. I do think abortion is wrong.
2. I don't think abortion should be banned.

These two statements might seem to be contradictory, but they're not. You don't have to agree with or condone abortion to realise that it's a problem that won't be solved by some utterly ill-considered blanket ban.

A federal ban on abortion - which is what I'd imagine hard core conservatives like CK are calling for - is an utterly unrealistic, unconstitutional and downright stupid idea. And I'll tell you why.

Why Abortion is Wrong

When it comes to the morality of abortion, CK and I are on the same page.

It's really quite simple. When sperm and egg combine and create a viable zygote, a woman is considered 'pregnant.' That zygote soon becomes an embryo, a multicellular diploid eukaryote, which ideally imbeds itself in the endometrial lining of a woman's uterus.

Unless something's wrong with it (25% of all pregnancies end before 13 weeks) or an accident happens, that bundle of cells will grow into a fetus and then be born as a baby. To all intents and purposes, new life begins at the moment of conception.

An abortion terminates that pregnancy - and snuffs out that potential new life before it even has a chance to begin. While the pro-choice advocates try to shuffle around the cold hard reality of it, it's really as simple as that. An abortion stops a beating heart.

Advances in science mean a premature baby can be kept alive earlier and earlier now. On the other end of the spectrum, scientists can create embryos and grow them in test tubes and could, theoretically, produce babies entirely independently of a human womb. So you can't really gloss over what abortion actually is.

Now I have a robust attitude towards life and death, growing up on a farm and being a firm advocate of meat-eating and huntin' and fishin' and all the animal-slaughtering resultant therein. However, I also believe that if you're grown up enough to let your eggs and your sperm get within touching distance of each other, you're grown up enough to deal with the consequences.

I personally consider the 'pro-choice' decision to be no decision at all.

Why an Abortion Ban is wrong...

Despite that being my personal take on the abortion issue, I am strongly opposed to the Republican demand for a federal ban on abortions - or giving individual states the right to ban the procedure. There are several reasons for this.

An Abortion Ban won't End Abortion

Remember prohibition, anyone?

The abortionist is probably the world's second oldest profession - probably stemming from a need generated by the first! Throughout recorded history there have always been abortions and doubtless, there always will be in the future.

From medicine women giving herbs and tinctures to induce miscarriage, to midwives with coat-hangers doing a side business 'helping' careless girls - the history of abortion is pretty much as long as the history of civilisation.

Abortion has only been legal for the last half century - yet it was a flourishing business in America long before then. Frank Sinatra's mother, Dolly, used to perform abortions in pre-war Hoboken.

The simple fact is, as long as there is a demand for abortions, there will be people willing to supply them - legally or illegally. Last year, there were 1.2 million abortions performed in the United States alone. Conservatives who imagine a ban will end them overnight are delusional.

At least legal abortions are performed by licenced physicians in clean, clinical conditions. A woman visiting an abortion clinic is offered counseling to ensure she's fully aware of the ramifications of the decision she's making. As it is presently, woman having abortions are at least offered a safe environment in which to do so.

If conservatives successfully overturn Roe vs. Wade - the Supreme Court ruling that declared abortion a constitutionally protected right - the abortion industry would simply go underground.

1.2 million women every single year seek abortions. The vast majority of them would continue to do so even if abortion was made illegal. They only difference is, they'd have them performed by unlicenced physicians, in unsanitary conditions - without any form of accountability.

History has shown that illegally performed abortions have a very high rate of infection, injury and death. If conservatives overturned the ban on abortions, they wouldn't save the lives of 'all' the babies. They'd just add a large number of young women to the death toll.

This is the number one reason why a ban on abortion is stupid. You don't have to like abortion - but you do have to accept the reality of the situation.

It's the conservatives' fault...

Abortion 'friendly' England is famed for it's high rate of teenage pregnancy. However, it's interesting to note that the real figures for unplanned teenage pregnancy are actually much higher in the United States - more than double.

Head down south to Texas and that percentage rate shoots up to be more than three times the figure in England - almost sixty girls out of a thousand wind up pregnant. Statistically, that means a higher percentage girls are having abortions in Texas too.

And why? Well, ironically, it's the fault of the same people calling for an abortion ban! Conservative policies are often to blame for unplanned pregnancies in the first place!

Take, for example, sex education. In modern society - with depictions of sexually active teenagers all over the television and movie screens - it's an accepted fact that youngsters are going to sexually experiment.

Yet abortion-hating conservatives also demand that teenagers are given 'abstinence only' sexual education. They're not told about contraceptives, sexually transmitted diseases or condoms. Instead, the conservatives believe teenagers should simply be instructed to 'keep it in their pants' until the day they walk down the aisle.

Yet mountains of research has proven beyond any shadow of a doubt that abstinence only sexual education does not work. Kids are just as likely to be sexually active after receiving abstinence only sexual education as kids who were taught about the 'bells and whistles' of responsible sex.

The only difference is that 'abstinence only' kids don't use protection.

How conservatives could ever imagine that abstinence only sexual education works is beyond me. The only thing I do understand is that this policy directly contributes to unplanned pregnancies.

Conservatives are a driving force behind the demand for abortions.

I'll tell you what to do, but I sure ain't helping...

Another way in which conservative policies directly contribute to the number of abortions performed in America regards their attitudes towards welfare.

In England, 17% of all pregnancies are terminated. In the United States, that figure is 22%. Why is the figure so much higher in America, where 50% of the population is supposedly against abortion?

The answer is easy - and directly linked to the number one reason why women have abortions. "I can't support a baby right now."

Britain's 'nanny state' policies reward single teenage mothers. Having a baby means a council house, welfare cheque and child support. For many teenage girls in lower class parts of the country, having a baby is seen as career choice. Women are 'set for life' if they knock out a couple of sprogs by age 20.

It's not an admirable policy - but it explains why more women in Britain are willing to follow their pregnancy through than in America.

Because rightly or wrong, America has a considerably smaller welfare system and the state is not going to be there to support every single mother. An unplanned pregnancy often means a woman simply can't support herself or her new baby - driving women towards having abortions simply because they have no other choice.

And ironically, it's conservative policies that drive this demand for abortions. The Republican's are the party of 'small government' in which Americans are expected to fend for themselves in matters of welfare and healthcare.

Republicans angrily insist that pregnant women carry their pregnancies to term - but then refuse to support them when they do. It's utterly contradictory and hypocritical. The pro-life conservatives cry that 'all life is sacred' as long as it's not their life and they're not expected to pay for it.

I'm not saying it's a good idea - I myself have conservative financial values - but if the conservatives REALLY wanted to reduce the number of women having abortions, they'd be there to offer them support. If a woman is driven to an abortion clinic because she 'can't support a baby,' a true pro-life campaigner would reach into their pocket and pay the rent cheque and grocery bill that this new mother can't.

But, of course, that's not how most conservatives think. They limit their appraisal of abortion to moral condemnation and angry jundgementalism. They never think of the consequences of their actions.

1.2 Million Served...

Zooming out and looking at the big picture, there are some other serious ramifications behind a conservative call for a blanket ban on abortions.

Last year, 1.2 million women had an abortion. Imagine, for a second, the inconceivable notion of 1.2 million women with unplanned pregnancies actually carrying them to term every single year!

Right now, the conservatives are bitching about the hundreds of thousands of illegal immigrants entering the country every year. Imagine what would happen if a group as large as the population of Dallas, Texas turned up in our maternity wards as well?

Constitutional Hypocrisy

Let's not forget the possibly most important reason why a ban on abortion is an idiotic idea. Because the Supreme Court - the highest court of law in the United States - said a ban on abortion is fundamentally unconstitutional.

According to the Supreme Court in Roe vs. Wade, banning abortions violates the Fourteenth Amendment. That ruling means that no state or national legislative body can ban abortions. You don't have to like it, but it's the law.

Conservatives who oppose abortion want to elect a president who will appoint conservative judges to the Supreme Court - and hope that one of them will overrule Roe vs. Wade. There's nothing like bypassing the democratic process when you've got an axe to grind, eh?

Let's not beat around the (George) Bush. It's very clearly established in the Constitution that judges are not supposed to legislate from the benches. Making laws is the job of Congress and the Senate - and those laws must fit within the confines of the Constitution.

If conservatives want to pass a law banning abortions, they're damn well going to have to do it through the legislative, facing the scrutiny of this nation's elected representatives. Screwing around with Supreme Court is unconstitutional and unAmerican.

Conservatives may decry people burning the American flag, but apparently they're more than willing to stomp all over it to get what they want.

Just plain dumb...

And, finally, there's just the very unlikable face of the pro-life conservative movement, who undermine the morality of their argument each and every day with offensive and hypocritical actions.

Life is sacred, say the conservatives. Yet fervant anti-abortionists shoot doctors dead outside abortion clinics. Conservatives still support the death penalty. The right wing only 'Support our Troops' as far as sending them abroad to be shot at by Islamic fundamentalists.

I really don't like being lectured about the sanctity of life by people whose hands are practically dripping with blood.

The Solution

It's not all bad news. There is hope for the conservatives and for a rational, practical campaign to eliminate the need for abortions. Those who are pro-life have to look at the big picture and decide which values are more important to them - and what they're willing to sacrifice to help stamp out the demand for abortions in the United States.

Because banning them won't work - but long term changes might.

There are two main keys to reducing the number of abortions - and hopefully setting a precedent that will see the demand for pregnancy termination practically reduced to zero.

• Adequate sex education for teenagers - so they know how to avoid an unplanned pregnancy if they're sexually active (and two out of three are.)
• Adequate resources for poor mothers - so if a woman finds herself pregnant, she doesn't need to worry about paying for a roof over her head or affording food and medical bills.

The downside, of course, is that conservatives are going to have to put up with higher taxes to pay for this - and they're going to have to get off their blinkered high horse about decent sex education.

Whether or not the average conservative is willing to make that sacrifice is a question I can't answer - but until they're willing to, women will still seek abortions (legally or not.)