Strengthening Constitutional Self-Government

No Left Turns

An Interview with Mitt

Here’s an NRO interview with Romney.
Kathryn Lopez was not particularly hard on the governor. But his answers still seem quite thoughtful, especially on Iraq and the whole ROE mentality. And he’s very clear (more clear than most of our politicians) that marriage and abortion are issues for the people--not activist judges--to decide, and that defending "traditional marriage" need not imply animosity toward gays or a violation of rights. He waffled a bit on the "evolution of his views" issue, but not that much.

Discussions - 15 Comments

One cannot help but think of Stephen Douglas’ popular soverignty when hearing "the people should decide the issue." Either it is wrong or right. It gay marriage is morally acceptable (taking into account the social complexities), then the people ought not have the power to forbid it, and if wrong, they should not have the power to allow it.

Furthermore, the people of one State deciding to allow it might decide it for the entire nation. I know little about the subject, but it would seem the Constitution’s privileges and immunities clause would have to allow it. To say it does not, is to say that some States could refuse to recognize marriages based on the different ages of consent.

Allowing the people to decide is simply a cop out when a politician does not want to take a stand on an issue.

What is most irritating, is that in many states, the people have voted on the "issue" of marriage, and in some states, more than once. How many times will "the people" have to vote? Until the minority gets what they want?

Why are people discouraged voters? Because the "activist judges" say that their majority vote is "illegal" or "unconstitutional," and deem the rights of the few to be greater than the rights of the many. I am sick to death of being told that my vote counts, only to have a judge tell me I’m "insensitive" or "politically incorrect."

On SS: Why isn’t it the case that the Const. allows the people in each state to make pretty much any marriage laws they want? Utah was denied polygamy by Congress as a condition for being admitted to the union. By surely the states already existed could vote in polygamy if they wanted (or, of course, not).

Peter:

It is my very limited understanding that the privileges and immunities clause in the Constitution requires States to respect other States’ conferal of certain rights. For example, why should Ohio treat a Delaware Corporation as a Corporation in Ohio? Or why should Colorado allow people with Nebraska Driver’s Licenses to drive on its roads? I believe the same argument could be made for marriage. If New York says couple A is married, then do they get divorced or annuled as soon as they move into Ohio? If that is what happens, how would their martial property be divided? Furthermore, are they unmarried while in Ohio?

I imagine there are cases where this could be important. One easy example is spousal privilege (not having to testify against a spouse). If married in New York, but not in Ohio, and a trial in Ohio, then does it apply? Or say couple does not have a will, so if spouse #1 dies it either goes to his spouse or to his brother. If he died in Ohio who would it go to?

I think the point that has to be recognized, is that American is too much a single nation, with its citizens frequently traveling to different portions of it, for different laws to be able to coexist. If it could not work with slavery it will not work for marriage.

I was incorrect about the part of the Constitution that might apply to marriages. It is NOT the privleges and immunities clause, rather it is the full faith and credit clause. I am sure there is some case law concerning the full faith and credit clause, for anyone who would like to look it up.

I cannot give you specific cases off the top of my head, but there is a judge-made doctrine called the "public policy exception" to the Full Faith and Credit clause that permits a state to refuse to give effect to contracts or judgments from other states that run counter to an express public policy of the forum state. This was fully developed in the context of inter-racial marriage, so presumably the precedent would be extended to gay marriage. The states might be required to take account of the marriages in certain strange conflict of laws situations as a matter of due process (e.g., if a same-sex spouse emptied the jointly-owned bank account and fled from Mass. to Texas to try and evade his responsibilities under the marriage contract). However, no state would ever be required to fully grant the rights and benefits that come with marriage if its public policy (as expressed by its statutes and Constitution) says it does not treat gay people as equal citizens.

I think that gays have every right to be married. Gays have every right to be married because everyone has a right to enter into consensual agreements, provided those consensual agreements do not invade upon the rights of others. I also think that Dr. Lawler and most americans today have this issue completly backwards. Defending "traditional marrige" is more or less an act of animosity towards gays...but notice that this is exactly what supposedly needs to be covered up or disguised... screw that... as soon as I have to conver up my prejudices against homosexuality the rights of others(in this case fags) has started to invade my sphere. I find it revolting that the defenders of traditional marriage wouldn’t want it to be clear that they morally oppose homosexuality. I say legalize gay marriage but allow people to preserve and retain the right not to tolerate it. In my world you shouldn’t have to wish gays a Merry Christmas just because you wish a non-gay Merry Christmas. I think you should be free to tell a gay person that you find the lifestyle they lead to be revolting...I think churches should be free to exclude gays.

As it is we are approaching a point where we want to make toleration dominant over and above Liberty. This is not a good place to be. Individuals should be free within the largest sphere possible to make and follow through upon moral and aesthetic considerations. Who wants to live in a society where we preserve traditional marriage but in exchange are forced into thinking that we must morally equivocate all lifestyles? This worship of tolerance is an inversion of true Liberty. Liberty should allow the homosexual the right to marry because this is an action properly within his sphere as an individual. Likewise for whatever moral reason I please, or for no moral reason at all...I should be free to harbor prejudices against homosexuals...provided these do not spill over into violent actions against them. Instead under the regime of tolerance...we are more and more told that we must not habor animosity or a negative moral judgement towards gays. Screw this! I am telling you that it is your right to dislike homosexuals...just as it is the right of the homosexual to get married. I think that it is imperative for the law to recognize as broad as possible of a scope for individual liberty, to include for the homosexual the right to marriage...and for the rest of us the ability to view this with scorn and repulsion.

Currently we are approaching the reverse... the gay loses his the right to make a consensual decision concerning the choice of a marriage partner, which is properly within his individual sphere of liberty...and in exchange the rest of us have our individual sphere infringed upon by the intelligensia telling us what the proper thoughts are...screw that...what thoughts are proper belong precisely within our individual sphere, because they depend upon our own lights, the moral judgements that are properly ours...the gay has no right to my moral sanction or acceptance or even friendliness...but legally he shouldn’t need it because my individual sphere should not overlap his. I support both prejudice and moral condecension against homosexuals but also gay marriage on the grounds that liberty requires that both be allowed to exist.

I am especially disgusted by churches which should properly be condeming the act of homosexuality as a sin, because biblically it is a sin...instead cowtow to the temple of political correctness and bend itself into a pretzel to preach toleration. We are all done a great diservice by having what should belong to us most properly as individuals...namely moral judgement and the freedom to carry it out, compromised in a strange and pragmatic way by equivocations and political lip-service. When a church is afraid to honestly represent its moral teaching...we are in grave danger. What is really under attack in the issue of gay marriage is Freedom. On the one hand opponents of the homosexual lifestyle are being forced into toleration...and this is a violation of the freedom of thought, and when it flows over into being welcoming towards homosexuals into a violation of freedom that should properly be allowed to follow from that freedom of thought. On the other hand homosexuals are being violated by too narrow of a construction concerning what can follow from freedom of thought/judgement/prefference.

I support gay marriage but I equally support your right to believe and even to evangelize that homosexuality is an abomination. If some baptist church somewhere wants to make posters saying that fags will burn in hell and wants to preach this from the pulpit...then by all means they should be free to do so(they should be free to do so...because freedom of thought is inviolate) If some gay man in San Fransico wants to spend the rest of his life with some other gay man or gay woman...this is his right and he should be free to do so(also because freedom of thought is inviolate). I should also note that Churches should be completly free not to marry or accept as members those who are homosexuals and living in sin...but this should go without saying.

Daniel:

Thank you for telling me more about this area. Do you know why the Defense of Marriage Act (DOMA) was passed if your public policty exception exists? Congress just wanted to make extra sure?

From my standpoint, I find gay marriage very interesting from a tax law perspective. Tax law has always relied on State law in determining whether someone is married, yet Congress passed DOMA and now there is tax law for straight married people and different tax law for gay married people (in Mass.). This can result in paying A LOT more taxes because any healthy benefits or other goodies are only tax free to the extent they are given to a spouse (or dependent, yet Congress has closed the dependent exception for married gay people as well, see sec. 151 or 152). This difference in TaX Law/State law definition of marriage may allow smart tax advisors to manipulate tax results. Like if a straight couple gets annulled there are usually bad tax consequences, but these will not attach to gay couples who get annulled since they were never married for tax law purposes. I am sure veyr smart people have already weighed how the Mass. law interacts with federal tax law.

In point of fact true Toleration and true Liberty are very much related. True Liberty proceeds from the right to think which yield moral judgements, which yields actions proceeding from these...and true toleration is toleration of the right to opposing points of view and also the actions proceeding from these to the extent that these do not impinge upon others. But nowadays toleration means dulling and supressing confrontational points of view, and ensuring a P.C. Consciousness dominates...which is the exact opposite of tolerating an individuals right to form moral judgements by his own lights. Nowadays the motto is: though shalt not judge...toleration shall judge for thee. And toleration and P.C. thought is precisely majority rule/popular sovereignty applied to epistemology. What should I think? Whatever we the people decide you should think! And toleration is whatever the people collectively can tolerate. The people can no more collectively tolerate homosexual marriage than they can collectively tolerate the view that homosexuality is morally wrong. So our collective tolerance dominates. And that is why the culture wars are made into such a big deal because what the culture comes to tolerate defines the limits of liberty instead of vice versa.

Agree with Steve on the Pop. Sov. point. Romney wants the people to decide these and much more because he has never and never will have the guts/balls/principles/backbone/you name it to take a stand.

For Steve Sparks:

From AMJUR CONSTLAW section 982: "Under the public policy exception to the Full Faith and Credit Clause, a foreign law will not be enforced when it would violate a fundamental principle of justice, a relevant conception for good morals, or a deep-rooted tradition of the common weal. Blits v. Renaissance Cruise Lines, Inc., 166 Misc. 2d 497, 633 N.Y.S.2d 933 (Sup. Ct. 1995)." (NB: in the case cited, "foreign" means another state as the dispute was New York v. Florida)

DOMA was simply a political stunt to force Clinton to choose between being perceived as liberal on gay marriage and offending his gay supporters (naturally, he chose to offend his gay supporters because they would never vote for a party that thinks jailing them for 20 years for having sex is a statement of good moral values--See Bush’s defense of the Texas law overturned in Lawrence v. Texas). It is both superfluous and extremely poorly drafted. Never assume that Republican politicians have any serious interest in gay marriage aside from the fact that it energizes "values voters" to vote Republican. There was no actual reason for DOMA aside from crass political calculations.

John:

Your theory of that consensual agreements are fine as long as they do not "invade the rights of others" sounds fine, but is so abstract as to be completely useless. Your argument needs content. Society gives all sorts of special rights to married couples, usually to the detriment of single people, and surely those single people have an interest in how that relationship will be defined.

One very easy example; married people will usually pay less taxes than 2 single people living together, or 2 single people period. Would you consider this an invasion of rights? Assuming the govt must raise x amount of dollars per year, it is clear singles will share a greater tax burden the greater we classify the scope of marriage; this would seem to harm some sort of right.

Define "right" and define "invade". I suppose by "invade" you want some sort of casual connection between the consensual agreement and the harm. Define these two terms and then we can have a discussion, until then you argument is glitter but no substance.

Steve...you are a lawyer, I am more of an outlaw. But how would Justice Kennedy answer you?

In truth I wouldn’t say that I have a vested interest in any of this. I and millions of others are going to countinue to live as we see fit. Gays will be gay and baptists will be baptists. Core beliefs will countinue to dictate action...the law will either aid or hinder this process. And when it hinders it...you will see what is trully operative...You are about to have a nation of outlaws on hand.(this isn’t an idle treat...it is probably already the case.) The fact that you consider tax implications to somehow be foundational just further points to the disconnect between lawyers and the rest of the populace. I can’t even define "right" for you. "Right" will be defined by the particular ontological structure of the individual. Likewise I can’t even define "invade", Invade will be likewise defined by the particular ontological structure the individual holds to be truth. Due to differences in ontological structures/rationality what is a "right" in the broadest sense will come to be recognized as the right to define "right". And "invade" will be defined as an attempt to abrogate this right to individually define right.

If my argument is legally speaking all glitter and no substance...as I am sure it is...then you have just discovered why disrespect for the rule of law occurs.

John:

I just think of taxes because that is what I know best. I know it is not that important, unless it happens to be your money they are taking.

Your argument was everyone has a right to do whatever consensual thing he wants to do as long as it does not impinge on the rights of others. Then you say you cannot define rights. It would seem your argument is not much of a guiding principle. It would probably be more honest for you just to say, people will do whatever feels good for them (physically, emotionally, and morally) and we should not stop it.

It’s 10 pm--and Mitt Romney is still an empty suit.

Then: "I was an independent during the time of Reagan-Bush. I’m not trying to return to Reagan-Bush."

Now: "What a guy! What a guy!", on his "hero", Ronald Reagan.

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