Same sex marriage and condoms on bananas

If the massive outrage I overheard on talk radio yesterday is any indication, yesterday's California Supreme Court decision legalizing gay marriage is the ultimate affront to democracy, and the final triumph of judicial tyranny run amok.

Daniel Blatt (a supporter of same sex marriage, btw) admits to being "troubled by the decision," as am I, and he explains why in an excellent PJM piece.

Not that I'm advocating rule by judicial fiat (or even same sex marriage), but it seems to me that much of popular reaction arises more from the culturally inflammatory, easily-understood nature of the issue than it is with judicial tyranny in general.

As issues of importance to the average person go, gay marriage strikes me as not terribly likely to reach out and touch most people. Unless you believe in the social contamination theory, which (correct me if I'm wrong) takes the communitarian view that marriage is much more than something for individual couples to contend with, as it is a social institution that can be "destroyed" once it allows itself to become "polluted" by gay couples. I've never been convinced that the average straight couple will be affected much, but I may be wrong.

While any reaction against judicial tyranny is generally a good thing from the perspective of those who fear out-of-control governments, I think this will be more likely to lead to the passage of a constitutional marriage amendment than to a serious drive to end judicial tyranny. In that respect, I am reminded of the way certain parent groups devote huge amounts of time attacking condoms on bananas instead of targeting the larger problem of the overall failure of schools fail to teach (of which the condom demonstrations are a symptom).

Much is said about unaccountable tyrants in judicial robes, and I don't like the idea of arbitrary rule by an unelected few any more than anyone else.

However, I will say this about tyranny by judges. At least the judiciary is in theory part of the constitutional system. (You know, one branch of the government and all that?) Judges have to at least operate publicly, and when they go too far, when their decisions are too notorious, the people who appointed them can ultimately fail to be reelected, and in California the judges themselves can be removed. So they're not completely unaccountable, nor are they completely unconstitutional.

What terrifies me much more than rule by an unaccountable, unelected judiciary is rule by an unaccountable, unelected bureaucracy.

Yes, there's that word again. Bureaucracy. For some reason it looks and sounds numbingly boring. When we think of bureaucracy and bureaucrats, our eyes glaze over. This faceless, largely invisible, almost eunuchoid ruling class just doesn't instill fear and loathing in people's hearts as it should. "Bureaucracy" is not a powerful word associated with tyranny, and it does not bring to mind the sinister men in black robes, even though the latter are in fact more publicly accountable.

Maybe I should have been worrying about gay marriage, but last night I tried to make sense of a bill called S.2191 -- America's Climate Security Act of 2007.

Trust me, it is a nightmare of government regulatory madness. Bipartisan sponsorship, naturally, so neither party has to face the wrath of ordinary little people when their gasoline prices double. Hopefully, they'll still be so busy duking it out over gay marriage that they won't notice the emergence of a new ruling class with far more power over their daily lives.

Even though it's a gruesomely cumbersome piece of legislation designed to regulate "greenhouse gases," S. 2191 does not specify what standards are to be set or what constitutes a violation of the law. This is all left up to "the Administrator."


(a) In General- Not later than 90 days after the end of a calendar year, the owner or operator of a covered facility shall submit to the Administrator an emission allowance, an offset allowance awarded pursuant to subtitle D of title II, or an international allowance or credit obtained in compliance with regulations promulgated under section 2502, for each carbon dioxide equivalent of greenhouse gas that--

(1) was emitted by that facility during the preceding year;

(2) will, assuming no capture and permanent geological sequestration of that gas, be emitted from the use of any petroleum- or coal-based transportation fuel that was produced or imported at that facility during the preceding year; and

(3) will, assuming no capture and destruction or permanent geological sequestration of that gas, be emitted from any nonfuel chemical that was produced or imported at that facility during the preceding year.

(b) Retirement of Allowances- Immediately upon receipt of an emission allowance under subsection (a), the Administrator shall retire the emission allowance.

(c) Determination of Compliance- Not later than July 1 of each year, the Administrator shall determine whether the owners and operators of all covered facilities are in full compliance with subsection (a) for the preceding year.

In other words, regulating greenhouse gases is too complicated for the legislature, so they're just abrogating their legislative responsibilities and assigning them to a soon-to-be-vaster-than-ever bureaucracy, which is charged with being the lawmaker, the prosecutor, and not merely the judiciary, but judge, jury and executioner. (But isn't such tyranny unconstitutional? Hah! Don't expect the Supreme Court to ever dare abrogate rule by the bureaucratic class! Why, they'd immediately find themselves accused of "judicial tyranny," by the bureacratic classes who claim they're there to "save" us.)

Who elects these people? No one. They are nameless, faceless, and as replaceable as pistons. And the legislation empowering them is not only unreadable, it probably won't be read by the legislators who will pass it.

But two men on the altar? Marriage redefined? Anyone can understand that. It's as easy to conceptualize as a condom on a banana.

No wonder ordinary people react.

The cynic in me suspects that's the whole idea.

posted by Eric on 05.16.08 at 09:07 AM


It seems that the method is "get the the masses focused
on something controversial but of little importance, then
pass the bill that will effect the daily life of all " or Divide and conquer

Hugh Scheie   ·  May 16, 2008 10:15 AM

You nailed it, Hugh. Thanks for stopping by!

Eric Scheie   ·  May 16, 2008 10:24 AM

So get the government out of the marriage business altogether. Define civil union contracts for government purposes and apply them to all couples (and, sure, threesomes) of whatever gender. Let churches and individuals define "marriage" for themselves.

And before someone starts frothing -- children can't enter into contracts. Neither can animals. Neither can blenders.

Fritz   ·  May 16, 2008 11:58 AM

The government should get the hell out of marriage. If two people wish to get married, then go and find a church that will marry them. The Episcopalian church ought to be pleased to marry any couple.

John   ·  May 16, 2008 1:43 PM

Doesn't any one care about sending jobs to China and India?

M. Simon   ·  May 17, 2008 12:54 AM

I do, and I think you're ascribing way too much competence on governmental officials to say that they are capable of this type of misdirection. Global warmening is an issue that most people don't feel they have the background to understand the issue, so they defer to the "experts" and the media, with predictable results. As more and more data accumulate that the whole thing is a farce, more people will feel confident in their own judgment of the issue.

Gay marriage, however, is an issue that almost everyone can feel confident in expressing an opinion on, given that the reaction is just as you described, emotional and visceral. Nearly everyone wants to be married, or at least in a simulacrum of marriage, so they are themselves experts in this field.

Chris   ·  May 18, 2008 9:13 AM

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