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There is a disappointing tendency for gay marriage supporters to sometimes use the clever sneer as a substitute for rebuttal. Dale Carpenter, who is usually gracious and measured, does a little sneering at Maggie Gallagher today. In a post called A Day in the Life of Ivana Denisovitch- Gallagher, he first quotes Maggie Gallagher’s piece in the San Francisco Chronicle:

If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.

Those in power will call it tolerance, they will call it pluralism, but in truth same-sex marriage is a government takeover of an institution the government did not make, cannot in justice redefine, and ought to respect and protect as essential to the common good.

To which he replies:

 I can see it now, this post–Perry world, a land of:

hunger and frostbite, the lonely, disregarded deaths, the sadism and exploitation, the mothers snatched on the street without so much as a final goodbye to their families, the orphaned children dying of cold and starvation and neglect, the fear and mistrust felt between those who were randomly spared and those who were almost as randomly seized.

Be of good cheer, though, for it will only be almost this bad.

I can understand his pique; from his standpoint Perry was a move towards making an oppressed minority freer. But the point Gallagher is making is correct. Judges are attempting to overthrow the carefully considered will of the people. To use judicial power to destroy the expressed will of the people is an awesome thing. So it must be used with the utmost care and discretion. Judicial power should be used that way, under certain rare circumstances, where the public has clearly lost its head.

But that is not the case here. The judicial decision in Perry is specious at best; no real defense was put up in the case, and virtually everything every gay activists claimed was taken by the naive judge as Gospel. The Judge’s due  process and  equal protection arguments are weak;  that fact is widely acknowledged. He lists as “facts” things which are merely predictions; he lists as “facts” the opinions of a highly politicized academic community that is careful to expunge all free-thinkers from their midst.

No matter what the judge claims, Proposition 8 was not some massive paroxysm of hartred against gays. It was a measured attempt to insure that the most important of our institutions is not reduced to rubble. He claimed he could find no rational reason whatsoever for the passage of Prop 8. But one was staring him in the face the whole time; he just pretended not to see it.

The matter is a simple one: gay marriage changes the nature of marriage. Under Perry, it is based on affective matters entirely. Under the rationale of Perry, there is no good reason why polygamists should be kept from marrying. After all, all the elements are there – caring, nurturing people, all in love with each other, wishing to form a household and bring up kids. And, as a result of Perry, any other permutation of “marriage” must be allowed – anybody who loves anybody will be allowed to get married.

In short, gay marriage completely destroys marriage and replaces it with something new, something where love is the only measure. And since love can occur between sisters, brothers, cousins, polygamous gatherings – whatever – then those arrangements are constitutionally just as valuable as gay marriages. And must be allowed. There is no articulable principle in Judge Walker’s opinion that would limit marriage to 2 people at a time. Only his tenuous, and purposeful use of the word “couples”. And that little thread is not enough to stop anything.

And as an aside, heterosexual college boys ( or girls) will get married in order to get various economic benefits , or to be able to share that married students-only housing. All over the country, marriage will now be gamed by people seeking health benefits, or some government benefit. It will all be a laugh; a lark; a grand put-on. Hah, Hah, Hah, Jerry and Bill pretended to get married so they could get X, Y, or Z. It will become a hilarious trend.

And Gallagher is right. The power of government will come down on parents and will in fact attempt to force all sorts of thought control – style measures. It will insist that children be educated in a manner parents do not agree with. This government takeover of what is moral and what is not, and what should be taught and what shouldn’t is profoundly corrosive. It results in a reduction of freedom. It results in a reduction of democracy, since public issues are now being determined by a single judge.

And of course this is not even good constitutionalism, for the Perry decision, quite frankly, is a farce. What kind of judge takes evidence from activists on one side of a highly charged political debate and declares one side to be completely right, and the other to be not only wrong, but vicious, irrational,  and unconstitutional? The  injudicious nature of the judge’s opinion is pitiable.

Yes. Perry is a farce, I am afraid. It pretends to be a grand summation of the “facts” of the gay marriage debate. It is nothing of the sort. It is cheap politicking, nothing more, dressed up in the guise of weighty scholarship and deliberation. But it is the antithesis of scholarship. It is the antithesis of judicial deliberation.

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