Saturday bonus, 1/17/15

Indiana University Law Professor Steve Sanders attempts to rebut the Sixth Circuit same-sex marriage opinion, and a Ninth Circuit dissent, both of which denied that state “mini-DOMAs” were motivated by animus.

These “Mini-DOMAs” were the 31 state constitutional bans on same-sex marriage enacted when the push began to be perceived as a genuine threat in addition to being absurd and oxymoronic.

Because amending state constitutions requires a popular vote in most states, friends of same-sex marriage can mine essentially the entire Nexis news database for evidence of animus against gays during referenda run-ups. Though affecting disinterested scholarship, Sanders is cherry-picking that record as a SSM advocate, and the picking is, I admit, easy.

One of the great frustrations I’ve felt for some 25 years of my own waxing and waning involvement in the “gay rights” debates has been the tone-deafness of people who have reached (so far as I can tell through the miasma) the same conclusions I’ve reached. Their frequent reflexive resort to “bible-thumping” of a sort that’s jarring in our political order is worse than useless; it struck me as counterproductive even at the time, and now that digital cherry picking is passed off as constitutional law, it’s even more counterproductive.

It is their own petard, by which they are hoist. Rational allies alongside in the trenches are just collateral damage. But why should their toxic-smelling rationales outweigh my rationales, or (to kick it up a notch) the tour de force of Robert P. George, Ryan Anderson and Sherif Girgis?

I guaranty that you’ll find plenty of hysterical condemnations of George and company’s sober position, evincing lots of animus against tradition by the pro-SSM side. Start with Piers Morgan and Suze Orman. Sure, they’re pandering to the kinds of idiots who watch, well, Piers Morgan and Suze Orman, but why is their pandering privileged, while that of pompadoured backwoods preachers isn’t?

I doubt that you’ll find any constitutional referendum on any topic where one side had no toxic spokesmen – and I’m unconvinced that it would tell us anything about the merits of the referendum if you could.

I’m 32+ years out of the legal academy, but I am strongly inclined to view “animus” analysis as nothing but the way plutocrats get to overturn the will of the people in favor of their own elite wills – and to congratulate themselves in the process. If what the law says and does is permissible, I don’t give a rat’s ass about whether some supporter, somewhere, spewed garbage in support.

* * * * *

“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.