Saturday, February 15, 2014

Equal means equal. And All means all.

              If you listen in the quiet chill air of a frigid February you may hear the explosions of intolerant heads across the country.

The United States District Court of the Eastern District OF Virginia overturned the Virginia Constitutional Amendment forbidding same sex marriage and forbidding the recognition  the same from other States. The usual right wing vitriol spewed forth on cue. As additional fodder the fact that Virginia's newly elected Attorney General, seeing the case as a loser decided to not fight the suit.

One thing to remember Attorney's General, like City, County and District Attorneys across America can decide not to prosecute a case. That is an executive decision on allocation of resources and the case's merits. No responsible prosecutor wants to try a weak case of dubious constitutional standing.

Naturally AG Mark Herring (a newly elected Democratic AG) took flack as being lawless like the President did over DOMA by not sinking money and personnel into defending theVirginia Amendment which likely would not withstand constitutional scrutiny.

Tony Perkins of The Family Research Council was furious at Herring. He declared the AG had not carried out his duty to vigorously defend the indefensible.  According to Perkins, Herring was required to uphold the laws and Constitution of Virginia. Perkins makes sure he mentions the Amendment garnered 57% of the vote in 2006 when it was passed.

This is always brought up wherever these Amendments are under siege. If being popular majority views were grounds to stop challenges, then there would still be slavery in the old South. The things about rights are they are rights,.They are not something subject to the whim of a vote. Perkins also says that this was not just a law,it was a Constitutional amendment.

Where to start, Tony? Sure it was an amendment to a STATE constitution. The Federal Constitution and law is supreme when in conflict with State or local law. Also, when a State joins the Union, the Constitution of that State is examined to ensure it is in accordance with the Federal Constitution.

Perkins also attacks Judge Arena L. Wright Allen who handed down the decision. Since the decision is something he disagrees with, Perkins hammered her as "Arrogant" and an "activist Judge". The usual tirade when the right loses a big one. SCOTUS' decision re; Citizens United, which scrapped more than a Century of precedent was just fine.

"It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters. Our nation’s judicial system has been infected by activist judges, which threaten the stability of our nation and the rule of law."  * from Politicus*
Once more. Where to start?

A judge who rules against your views in not necessarily substituting personal views or ideas for law. Once more being passed by a legislature and having a majority vote does not exclude a law from being found lacking as to it's constitutionality.If anything judicial review enhances stability and rule of law.

Contrary to what Perkins believes Judge Wright Allen used what appears to be solid reasoning based on accepted views of the portions of the US Constitution she cites. Perkins continues to act as if the tyranny of the Majority is a good thing and somehow enshrined in American law.

James Madison one of the authors of The Federalist papers (written to explain why a strong Federal Government was better than what existed) and the Constitution was concerned by the issues presented by simple majority. To avoid the tyranny of the masses Madison and company created checks and balances to the simple whim of the majority which could undo what had been fought for. He knew in a Republic that balancing the rule of a majority against the rights of a minority was a dangerous tightrope that needed navigated carefully.

As usual Perkins rewrites history to his view so as to make it easy to use as a cudgel.

When the framers of the Constitution wanted to be vague, they would be. When they wanted precision they were precise. Perkins seems to see ALL as a simple rhetorical flourish that really meant conservative white fundamentalist Christians. Everybody else were the dregs of humanity and not worthy of the same rights accorded to others.

Perkins and his allies suggest Judge Allen Wright got to be an attorney and judge without understanding the Constitution. They contend by striking down discrimination based on sexual orientation the country will lose and be overtaken by inequality. Huh?

He continues by sliding further off the rails. It seems that same sex marriage sends the message that children are worse off in a same sex family. It will result in contempt for law and the courts. It undermines States right to discriminate. It also ignores The Constitution is based on the Old Testament.

Of course this decision is also called a social experiment conjuring images of the Commies and Nazis. Also the fact this Judge was appointed by President validates decision this as social engineering and validates all conspiracy theories.

This case was rightly decided on the Fourteenth Amendment. Equal Protection and Due Process. If, Virginia recognizes marriages performed in other States and Countries as valid, they must also recognize legal same sex marriages. The State can not show an overwhelming need not to and may not pick and choose what to recognize.. Equal is equal.

Judge Wright Allen imposed a stay pending appeals which of course are going to happen. Flog that dead horse.

No comments:

Post a Comment