The last two times I fisked, I was attacking solo acts.  This time, I get a triumvirate, as the three most liberal women in the United States Senate, Barbara Boxer, Patty Murray, and Jeanne Shaheen, have joined together to write an opinion piece for the Wall Street Journal, justifying ObamaCare’s intrusion into the realm of religion.  I cannot resist the fisk.

It was a historic victory for women’s health when the Obama administration changed the law to require private health plans to provide preventive services including breast exams, HIV screening and contraception for free. This new policy will help millions of women get the affordable care they need.

[This is simply ideology blah-blah.  Women get free stuff.  Men don't.  It hardly seems fair to me.]

Now, sadly, there is an aggressive and misleading campaign to deny this benefit to women. It is being waged in the name of religious liberty. But the real forces behind it are the same ones that sought to shut down the federal government last year over funding for women’s health care. They are the same forces that just tried to pressure the Susan G. Komen Foundation into cutting off funding to Planned Parenthood for breast-cancer screenings. Once again, they are trying to force their politics on women’s personal health-care decisions.

[The above is an impressively misleading paragraph, conflating core constitutional rights with marketplace pressures.  The ObamaCare fight is a war of religious liberty, insofar as the Obama administration, contrary to the limitation that the First Amendment imposes upon the federal government, is trying to force religious organizations to engage in practices that directly contradict core doctrinal matters.  The other fight arose from the fact that a privately funded charity wanted to stop providing money to an organization that (a) is being investigated for corruption; (b) receives massive amounts of federal dollars; (c) is one of the largest abortion providers in the country; and (d) does almost no "breast-cancer screenings" but, instead, simply refers women to other providers.  Having the facts kind of makes a mockery out the triumvirate's claim that those opposed to the ObamaCare mandate "are trying to force their politics on women's personal health-care decisions."]

We are very glad that the president has stood up to these forces while protecting religious freedom on all sides. His administration should be commended, not criticized.

[There's that new-speak again -- the president "protects" religious freedom by imposing doctrinal mandates on religious organizations.]

Contraception was included as a required preventive service on the recommendation of the independent, nonprofit Institute of Medicine and other medical experts because it is essential to the health of women and families. Access to birth control is directly linked to declines in maternal and infant mortality, can reduce the risk of ovarian cancer, and is linked to overall good health outcomes. Nationwide, 1.5 million women use contraceptives only as treatment for serious medical conditions. Most importantly, broadening access to birth control will help reduce the number of unintended pregnancies and abortions, a goal we all should share.

[Been here, done that.  This is the big lie at the heart of the Obama administration's attack on traditional religious institutions.  These harpies constantly conflate the availability of birth control with funding for birth control.  They are not the same.  Women in America can get birth control.  The government can fund organizations -- indeed, it already does with the monies that go to Planned Parenthood -- that provide all these birth control options.  Forcing religious organizations to pay for birth control, sterilization and abortifacients, however, both exceeds the government's power and contravenes the limitations the Bill of Rights imposes on government.  This is not about whether women should have birth control; it's about with the government can force churches to pay for it.]

Proper family planning through birth control results in healthier mothers and children, which benefits all of us. It saves us money too: The National Business Group on Health—a nonprofit whose members are primarily Fortune 500 companies and large public-sector employers—estimated that it costs 15% to 17% more for employers to exclude birth-control coverage, both because other medical costs rise and because of lost productivity.

[See above.  Apples and oranges.  Even accepting as true every single statement in the above paragraph, that still doesn't give the administration the right or power to force churches to fund birth control, sterilization and abortifacients.]

Contraception is not a controversial issue for the vast majority of Americans. Some 99% of women in the U.S. who are or have been sexually active at some point in their lives have used birth control, including 98% of Catholic women, according to the Guttmacher Institute. A recent survey by Hart Research shows 71% of American voters, including 77% of Catholic women voters, supported this provision broadening access to birth control.

[Ditto.]

Consistent with other federal policies, churches and other groups dedicated to teaching religious doctrine are exempted from providing this coverage under a “conscience clause.” But the law does include institutions that have historic religious ties but also have a broader mission, such as hospitals and universities. That’s also consistent with federal policy—and with laws that already exist in many states.

[Boot strapping argument here.  The second sentence assumes that the law is allowed to include institutions that aren't dedicated solely to religious activity, and staffed solely by core religious employees, and then says that, because the law includes them, therefore the inclusion is consistent with federal policy.  And, as did Sebelius, these gals wrongly look to state law, as if the states' acts give the federal government powers denied it under the Constitution.]

Those now attacking the new health-coverage requirement claim it is an assault on religious liberty, but the opposite is true. Religious freedom means that Catholic women who want to follow their church’s doctrine can do so, avoiding the use of contraception in any form. But the millions of American women who choose to use contraception should not be forced to follow religious doctrine, whether Catholic or non-Catholic.

[Nothing now prevents church employees from buying and using contraception.  They've been able to do so freely, in all 50 states, since the Griswold case in 1965.  What does exist now is a Big Rule saying that the government cannot force religious organizations to engage in acts that violate doctrine.  The First Amendment is explicit:  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."  Right now, there are no laws prohibiting Catholic women from doing whatever the heck they please regarding their health care and contraceptive choices.  The only difference now is that never before has the federal government had the temerity to make laws, rules, and regulations that directly implicate an establishment of religion, prohibiting it from freely exercising its faith.]

Catholic hospitals and charities are woven into the fabric of our broader society. They serve the public, receive government funds, and get special tax benefits. We have a long history of asking these institutions to play by the same rules as all our other public institutions.

[Rhetorical sleight of hand.  When it comes to playing by workplace rules, the previous rules didn't attack doctrine.  This here is a different type of rule.]

So let’s remember who this controversy is really about—the women of America. Already too many women struggle to pay for birth control. According to the Hart Research survey cited above, more than one-third of women have reported having difficulty affording birth control. It can cost $600 a year for prescription contraceptives. That’s a lot of money for a mother working as a medical technician in a Catholic hospital, or a teacher in a private religious school.

[And we're right back to the cost-shifting argument.  See my discussion, above.]

Improving access to birth control is good health policy and good economic policy. It will mean healthier women, healthier children and healthier families. It will save money for businesses and consumers. We should hold to the promise we made women and provide this access broadly. Our nation will be better for it.

[Ditto.]

I was going to wrap this up by saying I’ve seldom seen a more ignorant and dishonest piece of advocacy writing. I’ve decided, though, that it’s not ignorant. These gals know what they’re doing and what game they are playing. This is simply dishonest.  It is, however, a fine piece of writing coming from acolytes of the Constitutional law professor who now discovers, seemly for the first time in his intellectual life, that the Founders wisely wanted to limit a nascent dictator’s power:

[T]his week Barack Obama proved himself once again the perfect epigone of Woodrow Wilson—the first president to criticize the Constitution and the principles of the American Founding—with his remarks to NBC’s Matt Lauer that one reason he hasn’t succeeded in fulfilling his campaign promises to transform the world is that “it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes.”  It turns out?  He’s just discovering this now?  (Well, one thing that “turns out” is that the only constitutional law Obama actually taught at the University of Chicago was the equal protection clause.  Apparently he skipped over that whole “separation of powers” stuff.)

When I first saw the headline — “A $2.5 Million Libel Judgment Brings The Question : Are  Bloggers Journalists?” — I have to admit that I felt a bit queasy.  When I write something snide about President Obama, Harry Reid, Nancy Pelosi, or any of the other prominent Democrats I routinely criticize at this site, am I exposing myself to massive liability?  Well, probably not, because they’re public figures and we have enormous latitude to criticize them.  But what about a post I might write criticizing, not a political figure, but a local businessman.  Can he sue me . . . and win?

The answer, it seems to me, is that Mr. Businessman is just as likely to win against blogger as he would have been if, in the old days, I sent nasty letters to the editor, distributed flyers or otherwise widely and impugned his character.  If my statements are true, I win.  If they’re false, I lose.  I would have been at risk in the old days and I’m still at risk in the new if I choose to shout out lies from an electronic rooftop.

So why is the $2.5 million dollar libel judgment an issue?  Because the blogger in question sought to protect herself by claiming that she was a journalist, not a blogger.  She therefore contended that Shield Laws allowed her to hide her sources while successfully protesting her innocence in a defamation lawsuit.  When the judge said she wasn’t a journalist, bloggers got nervous.  After all, we bloggers consider ourselves a “new media,” providing information that the old media, usually for political reasons, often leaves on the cutting room or newsroom floor.  What’s unnerving is that, if we’re not journalists, even when we scrupulously present facts, we’re still at risk of litigation, something that has a very chilling effect even on the most honest writer.

As is so often true with legal cases, though, the details should be comforting — and this is true despite the fact that I think the judge committed a definitional error that must be redressed.  This case, though, is not going to be the one that makes correcting that legal error easy, because the facts really militate against the blogger.  By any standard, Crystal Cox, the defendant against whom the district court judge imposed the $2.5 million libel judgment, was not making any effort to conduct herself according to journalistic norms.  Instead, Cox was the journalistic equivalent of a vexatious litigant.

For those of you who have missed out on the joys of a vexatious litigant (“VL”), a VL is someone who uses the court system to dominate and harass enemies.  These people are often lawyers, and they will file in pro per suits (meaning that they represent themselves) against anyone who crosses their radar.  Since litigation is expensive, a perfectly innocent person might find himself targeted by a plaintiff who has dozens of cases going simultaneously, and who files hundreds of costly motions in each case.  The unwitting defendant can either settle immediately, even though he knows he’s being subject to judicial blackmail, or he must spend the money to answer the case and respond to all the discovery and motions.

While the judge in any given case may impose sanctions against the plaintiff, that’s an uneven remedy.  Eventually, though, if the plaintiff acquires a reputation around the courthouse, a judge can defang him by declaring him a “vexatious litigant” who can proceed in the Court system only with judicial permission.  Although it’s a draconian remedy because we are loath to deny people access to the civil court system, it’s still a necessary thing to do when someone uses the system, not as an instrument of justice, but as a tool for economic blackmail, humiliation and harassment.  As I noted, though, it’s a last remedy, not a first remedy, and a lot of people get badly burned before it goes into effect.

From everything I’ve read about Crystal Cox, her website, titled “www.ObsidianFinanceSucks.com,” was a one woman vendetta against a corporate Bankruptcy trustee and an individual employee, filled with hundreds of posts savagely attacking both of them.  Her claims against them, usually presented in the form of hyperbolic questions, rather than factual statements, accused them of fraud, illegal activity, theft, and just about everything else short of stealing lollipops from babies and using goats for impure purposes.  As the judge made clear in decisions written in both July and August, one would be hard put to classify Cox’s content as objective journalism.

Because Cox’s posts were so over-the-top, the judge concluded fairly easily that they couldn’t possibly be construed as anything other than pure opinion, which is protected under the First Amendment.  He was therefore inclined to dismiss the case against her.  One of her posts, however, had a gloss of journalistic objectivity and, more importantly, showed up at a site where it wasn’t published under the “ObsidianFinanceSucks” heading and where it wasn’t surrounded by dozens of other posts demonstrating that Cox has a monomania that leaves even her “objective” writing highly suspect.  It was in this context that the judge decided Cox wasn’t a journalist, and that her nasty post constituted good, old-fashioned defamation, akin to handing out a flyer in a shopping mall.

Where I differ with Judge Hernandez, although I think he made the correct decision regarding Cox, is in his effort to define objective journalism so as to deny Cox constitutional protection for her statements.  As far as I can tell, his definition puts most of our major media on notice that it’s at risk:

Cox tried to invoke the Shield Law, which allows journalists to protect confidential sources, but Judge Marco Hernandez ruled Cox was not a journalist and therefore not entitled to the protections. He wrote, “there is no evidence of any education in journalism, any credentials or proof of any affiliation with any recognized news entity or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

While the New York Times, the WaPo, MSNBC and other traditional media sites can undoubtedly claim that their writers hold university credentials, it’s becoming increasingly questionable whether they subscribe to such traditional “journalistic standards . . . as editing, fact-checking or disclosures of conflicts of interest.”  Indeed, one of the things internet bloggers excel at doing is catching the MSM when it fails to follow those journalistic ethics (and one does wonder whether the MSM’s disdain for these basic requirements is something individual writers learn at those credentialed schools).

Given that the MSM so frequently falls very far short of what the judge considers to be ethical minimums, being affiliated with these “recognized news entities” in no way assures the reader that he can rely on the truth of the matter asserted in any given news report.  A reputable blog spot, one that rigorously edits, fact-checks and discloses, should qualify as journalism, and be entitled to all First Amendment protections, without having to pay lip-service to establishment conventions (journalism school, major media affiliation) that, in fact, do not provide any assurance that the content is honest, credible, complete or unbiased.

Since Cox strikes me as a monomaniac with a bee in her butt, I’m somewhat surprised that Eugene Volokh, who is one of the most reputable, insightful legal bloggers and new media journalists out there, is getting involved in this particular case:

Crystal Cox did not respond to our emails and phone calls seeking comment. It appears, however, she plans to continue to fight. She represented herself in the defamation suit, but now has legal help from UCLA Law School and blogger Eugene Volokh. He has taken the case pro bono in hopes of getting the decision reversed. Volokh has written about the First Amendment’s protection of the press, arguing it’s not solely intended for the media as an institution, but anyone doing the work of journalism.

Volokh is right as a matter of law, of course.   Judge Hernandez is simply wrong to define journalism to include only people who have trained in establishment schools and who write for establishment (i.e., Leftist) media, a bright line that would astonish and offend the Founders.

Based on what I’ve been able to glean from Judge Hernandez’s opinions, however, both of which quote extensively from some of the hundreds of posts Cox wrote for “www.ObsidianFinanceSucks.com”, Cox is the wrong defendant to use as a standard for expanding the definition of journalism to include citizen journalists writing at blogs.  Cox’s writing isn’t coherent, factual reporting, with full disclosure.  Instead, it’s a malevolent stew of opinion and hostility.  She’s a vexatious blogger, and a common law defamer, not a legitimate journalist.  Indeed, she’s a perfect example of bad facts making for bad law.  I’m just worried that, if Volokh pursues this, this bad law will be enshrined at an appellate level, rather than merely at the district court level.

11B40 asked a good question, which is why I’m so focused on McQueary, when it was Sandusky who committed the crime.  It’s because I have no fellow feeling with Sandusky who, if the allegations are true, is a perverted monster.  I therefore don’t need to analyze my behavior or parenting decisions with regard to his conduct.  McQueary, however, is Everyman.  Each of us could be in his shoes.

McQueary’s response to a horrible, unexpected situation wasn’t perverse or illegal.  Instead, it was just the lowest common denominator of acceptable behavior that an ordinary human could commit.  I have within me the capacity to do exactly what he did — but I want to be better than that.  That’s why I’m also hammering away at columnists who explain what he did, not just to offer explanations, but also to excuse his conduct.  Like them, like all of us, I could be McQueary, but I don’t want to be McQueary.

Perhaps my obsession with this is also because I’m a parent in a morally challenging world, attempting to give my children moral lessons.  That hit home yesterday. As I hadn’t quite made it back to the house when my 12-year-old son got home from school, he called me, his voice trembling with unshed tears. “Mom, I have to tell you this. I need to confess. There was this old guy handing out little pocket Bibles at school [actually, next to the school, on non-school land]. Then, on the school bus home, one of the kids had candy and I wanted the candy and the kid said he’d give me the candy if I ripped up the Bible — and I did. Another boy threw a bunch of Bibles out the window.  I’m so sorry. I know what I did was wrong and I just had to tell you.”

When I got home, my son was still very upset, partially because he knew he’d done something wrong (both destroying a book and destroying a religious symbol) and partially because he was worried about getting expelled from school.  Without actually meaning to, I made him even more upset.  On my way back home after his call, I’d already called a friend whom I knew was taking her kids to a non-denominational youth night at the local church. I figured it would be good for my son immediately to go to a place where the book of God matters. When I mentioned I’d told her, he completely broke down, sobbing hysterically. “How could you? She won’t respect me any more.” (And I can’t tell you how glad I am to know that he realized that what he did would impair his standing in the eyes of the community.)

It got worse for my little guy when I opened my email and discovered an email from a friend and neighbor who didn’t know that my son had confessed, telling me about what happened and adding that several of the children on the bus were quite upset. “Oh, no! None of the parents will respect me anymore. This is horrible. I wasn’t thinking. I didn’t mean to destroy God’s property.” More sobbing. My son wrote our neighbor an abject apology for having committed an offensive act, and she sent a gracious reply.

I wasn’t pleased with what my son did, but I wasn’t angry at him.  It seemed to me that he was angry enough at himself.  He knew that he’d done an irresponsible and offensive act, although he did so foolishly and entirely without malice.  He also felt very keenly that what he had done might diminish him in the eyes of people he respects and whose respect he desires.

Indeed, I was quite pleased that he was upset and able to identify his own wrongdoing, rather than arrogant and dismissive.  He could have gone the other route:  “It’s just a book, and people who believe in it are stupid, and I should be able to rip up a book if I want, etc.”  That he didn’t, that he immediately realized he’d made a mistake, was a comforting reminder that my son is a fundamentally good person, who is simply a long way from maturity.  He is not, thank goodness, a punk or a sociopath.  A good (not angry or accusatory) talk about decency and respect, a total media blackout for two days, and a rather pleasant evening for him at a church youth group (he wants to go back) were, to my mind, entirely sufficient responses.

What was really interesting — and here we’re back at my whole obsession with McQueary and a society that passes the back and practices moral relativism — was the response from a liberal friend of mine.  Rather than acknowledging that my son had done something wrong, his ire was all focused on the old man who had handed out Bibles.

“That’s illegal.”  ”

No, it’s not.  He wasn’t on school property, and he wasn’t handing out anything that is illegal or that is prohibited to minors, such as drugs, alcohol, cigarettes or pornography.”

“Well, it ought to be illegal.  You can’t just hand out Bibles to people.”

“Um, actually, a little thing called the First Amendment says you can.”

He was shocked.

My friend’s next challenge was that handing out a Bible to school children was entrapment.

“That man was trying to entrap children.  He knew that most of them would throw it away and that boys would play with it.  There’s no difference between shredding it and throwing it in the garbage can.”

My friend was unconvinced when I pointed out that (a) the fact that many children on the bus were upset shows that treating a Bible with disrespect is not a natural or appropriate act and (b) that there is a difference between respectfully disposing of an unwanted item and deliberately destroying it in public view.  Intention matters.  And it was because intention matters that I was upset with my son for what he did, but I was neither angry nor perturbed.  His intentions weren’t blasphemous.  He just wanted candy.

Because issues such as this pop up in one form or another quite often when you have parents, you can see why I think long and hard about the messages we send our kids when it comes to right and wrong, and about responsibility to individuals and to society at large.

What do you all think, whether about my parenting decisions, about my McQueary tie-in, about societal messages, or anything else this post might have brought to mind?

If you’re old enough to have lived through the 1970s, you recognize my post title:  Gilda Radner’s famous character Roseanne Roseannadanna would let loose with a foolish tirade, and then wrap it up by saying “It’s always something — if it ain’t one thing, it’s another.”  Someone needs to resurrect that character, or at least that catch-phrase, to appreciate fully what’s going on right now with the Koran burning.

Everyone I know thinks that that Pastor Terry Jones is an insensitive, ill-mannered, publicity-seeking lout for having burned the Koran.  That he did so is un-American, not because it is illegal, but because it runs counter to deep American values that find repugnant the thought of book-burning, especially burning religious books, and that embrace a pluralism that shows respect for different religions.  Ordinary Americans, not crude attention seekers such as Jones, understand that America is blessed with a huge population of peace-loving, law-abiding Muslims, and that it’s a rude, mean-spirited slap in the face to treat their holy book so badly.  Can I make it any plainer that I am disgusted with what Jones did?

Sadly, however, significant numbers of Americans, all (almost all?) liberal (including Lindsay Graham, who is RINO through and through) think that what Jones did requires government intervention, in the form of federal laws banning Koran burning, or religious book burning, or all book burning, or Islam insulting, or whatever the liberal thinks will work to placate the Muslims so that they don’t riot and murder innocent UN workers.  (And while, God knows, I hold no brief for the UN, to invade a UN compound and murder workers in cold blood is the slaughter of the innocents.)

Those who are willing to pass such laws fail to understand two things.  First, one of the things that makes America uniquely American is the reverence we hold for free speech, even ugly free speech.  While we draw the line at two types of free speech — pedophilia and direct incitement to violence, a la “go out and lynch the person right now” — we otherwise believe that free speech can only benefit us.  Ugly, mean speech should be countered by smart speech, compelling speech, apologetic speech (if necessary), persuasive speech, etc.

If we allow the government to ban ugly speech, we suddenly find ourselves in a situation that sees the government determining what’s ugly.  I can tell you with certainty that, during the first two years of the Obama administration, he and Congress, working together, would happily have banned all anti-Obama speech on the ground that it was racist hate speech.  It’s a slippery slope and a censoring government will always slide you down to the midden at the bottom of the hill as quickly as possible.

Second, the other thing that the pro-censorship crowd utterly fails to understand is that banning Koran burning or book burning or smack talk about Islam is only the beginning.  Those who haven’t been paying attention don’t appreciate that this is the religion of perpetual outrage.  “It’s always something — if it ain’t one thing, it’s another.”

If we ban Koran burning, the agitators amongst the Muslims will riot about pigs on tissue boxes, something that excited much outrage in England a few years ago.  If we ban pigs on tissue boxes, they’ll start killing over abstract ice cream logos that, if held at a certain angle and viewed with one eye half closed, could possibly be understood to be Arabic script for Allah, something that also happened in England.  If we ban ice cream labels, they’ll agitate wildly over people entering Muslim-driven cabs with alcohol bottles or seeing eye dogs, as Muslims did in St. Paul, Minnesota.  If we ban alcohol and dogs in cabs, the jihadists and their useful idiots will storm embassies because of cartoons, which is what happened all over the world over some Danish cartoons (pictures that were skillfully augmented by exceptionally vicious anti-Mohamed cartoons that an Imam drew when he didn’t get the proper reaction to the original cartoons).  And of course, if we ban cartoons people have already drawn, the Islamists will hunt down people who merely suggest drawing cartoons, as happened to poor Molly Norris, who had to go into permanent hiding for her suggestion.

If you pay a blackmailer, he won’t go away.  He’ll come back for more.  “It’s always something — if it ain’t one thing, it’s another.”  Those who wish to drain the American bank account by chipping away at Constitutional freedoms will discover themselves bankrupt, burqaed and muzzled.  The radical Islamists will not be grateful for our sacrifice, they will be delighted by our obeisance, and they will push and demand more and more and more.  Further, because they know we haven’t got the stomach for the fight, each demand will be accompanied by bloodshed, along the lines of the Mafioso who slices off an ear or a finger, or blows away a knee cap, to make his point.

To those who say “But they’ll kill our troops,” I have one more thing to say:  What the hell do you think the Islamists have already been doing to our troops for the past eight years?  Everything the troops have been fighting and dying for goes away if we unilaterally surrender our Constitution and bow to our new sharia overlords.

“It’s always something — if it ain’t one thing, it’s another.”

UPDATE:  This post perfectly illustrates the one-way street nature of sharia and its adherents.

Two of my absolute favorite political writers, Peter Wehner and Jennifer Rubin, have chastised O’Donnell for her recently reported constitutional error.  I think that, perhaps, they’re being unfair.  It’s clear from reading the news reports that the Constitutional portion of the debate was intended to be a pile-up on O’Donnell:

Also during the debate, O’Donnell stumbled when asked whether or not she would repeal the 14th, 16th, or 17th Amendments if elected.

“The 17th Amendment I would not repeal,” she said, before asking the questioner to define the 14th and 16th amendments, adding: “I’m sorry, I didn’t bring my Constitution with me.”

The 16th Amendment allows Congress to raise taxes without apportioning them among the states or tying the taxation to Census results. The 14th Amendment grants citizenship to everyone born in the United States. The 17th Amendment established direct election by popular vote of two U.S. Senators to each state.

I’m a lawyer and, beyond the 1st ten Amendments, plus the 13th and 14th, I too would have trouble nailing any given Amendment’s substance just by numerical reference.  Knowing the Constitution and “speaking the code” are two different things.

As for O’Donnell’s alleged ignorance about the 1st Amendment, I wouldn’t be too hasty.  I haven’t heard the audio from the debate, so I don’t know how exactly it played out.  I’m inherently suspicious of the media’s spin on it, though, simply because I know that they want to paint her as an uneducated hick, unsuited to higher office.  The context was that Coons was pushing the Leftist view, which is that the 1st Amendment essentially outlaws religion in any aspect of public life, leaving it to exist only within the four walls of the Church (or synagogue or temple) or the home.

Coon’s view, although the media heartily approves, is manifestly wrong.  The First Amendment’s carefully phrased language was intended to keep the federal government from establishing a state church, akin to the Church of England that had so recently controlled the colonies.  For those who didn’t worship at its altar, the Church of England still required taxpayer funding and it seriously restricted access to politics, employment and education.  The Founders wanted to ensure that American citizens wouldn’t never be forced to worship in a centralized government faith — or, worse, be penalized for refusing to so worship.  This is a far cry from outlawing faith entirely, which is where Coons is going.

Further, that same carefully phrased language was intended to ensure that local governments could, if they so desired, establish a faith:  “Congress shall make no law respecting an establishment of religion….”  (Emphasis mine.)  That emphasized phrasing makes it plain that other governing bodies can make laws respecting establishment of religion.  And indeed, at the time the Founders enacted the Bill of Rights, several of the States did have official churches.

If you doubt this, contrast the 1st Amendment’s language with that in the 2nd Amendment.  There, the Founders made plain that no governing entity, whether federal, state or civic, could pass any law limiting arms:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The 2nd Amendment is one example of passive voice being a good thing.

O’Donnell clearly understands the way in which the 1st Amendment was intended to work — and it’s entirely possible that, in the context of the debate, she was still laboring over these substantive  ideas when Coons, conversationally, threw out his constitutional quotation.  That would explain O’Donnell’s confusion.  Context is everything and, until I hear what happened there, I reserve the right to question the MSM’s reporting.

Even if the MSM is correct, though, that O’Donnell didn’t remember the precise phrasing in the 1st Amendment, the situation between the two candidates, Coons and O’Donnell, is still unequal.  When it comes to the 1st Amendment, Coons knows what it says, but doesn’t get what it means; O’Donnell gets what it means, but doesn’t know what it says.  And given a choice between the two, I’d always take the one who understands the Constitution, rather than the one who parrots it mindlessly and twists it to Marxist ends.

UPDATE:  Neo-neocon caught the same fallacies in both Coons’ and the MSMs’ approach to the First Amendment.  And I should have known Rush would get there first.

UPDATE II:  O’Donnell expounds upon her accurate understanding of the 1st Amendment.

I got a very hysterical form letter from Americans United for Separation of Church and State.  What’s impressive about it is that Barry Lynn, the Executive Director who purportedly authored this fevered screed, is totally uninformed about the nature of America’s Constitutional mandates regarding religion.  Here’s what the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Boiled down to its essence, the First Amendment says that government in American may not control people’s religious worship.

By stating this principle, the Founding Fathers sought to distinguish themselves from the European tradition that saw government actively interfering in people’s religious practices.  On the one hand, European governments dictated which religion citizens should worship and often controlled the doctrinal substance of that state approved religion.  On the other hand, these same governments brought harsh civil penalties to bear on those who refused to comply with state religious mandates.  The easiest example to point to, of course, is England, which was the situation against which the Founders were reacting.  Not only were the State and the Church of England inextricably intertwined (with the monarch as head of the church), but England in the late 18th Century still had multiple laws on its books barring people who were not C of E from serving in the government or even obtaining a higher education.

Although Leftists deny it, Thomas Jefferson was imply reiterating the principles in the First Amendment when he coined the phrase “separation of church and state” (a phrase found nowhere in the Constitution itself).  Although Progressives like to forget this fact, Jefferson was a very religious man, although he was sufficiently private in his worship that he avoided incorporating it into public ceremony, as Washington and Adams had done.

In late 1801, while still President, Jefferson received a letter from the Danbury Baptist Association complaining that, as a religious minority in Connecticut, the state was treating their religious rights as privileges from the legislature, rather than immutable rights inherent in all citizens.  Jefferson’s reply makes it plain that the Legislature can neither grant nor deny religious rights, since it is not the responsibility of the American government to interfere in church function and doctrine (emphasis mine):

To messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem & approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful & zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more & more pleasing.

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem.

(signed) Thomas Jefferson
Jan.1.1802.

It is manifestly clear from perusing both the Bill of Rights and Jefferson’s own letter that none of the Founders intended that religious people must be barred from civil participation.  They can bring their values to bear in the civic arena, even if those values are religiously inspired.  What they cannot do is hijack the government so that the government uses its coercive powers to force people to worship a specific faith, to interfere with a religion’s doctrine, or to punish or ostracize people for practicing a faith that the government does not sanction.

These subtleties — the difference between government controlled religion, which is bad, and a religious people whose religion informs their conduct, which is constitutionally neutral — completely eludes the anti-religious Left.  They want people who enter government to check their religion at the door.  They are incapable of understanding that the complete absence of religion is a religion in and of itself, with faith in government and its bureaucracy being substituted in place of faith in God and his morality.

During the 1980s, religious people called this Leftist faith “Secular Humanism.”  As a thoughtless, knee-jerk Leftist myself during those years, I actually appreciated the label (“Hah!  I’m a Humanist”), but rejected the Religious Right’s contention that Secular Humanism is itself a religion.  To the Left, something can be a religion if the word “God” (or, if you’re polytheistic, “Gods”) is involved.  None of us on the Left understood (or, at least, the thoughtless amongst us refused to understand) that Secular Humanism is a religion because it is a comprehensive belief system.  The only difference between Secular Humanism and traditional “religion” is that, in place of an omnipotent deity, secular humanists worship an omnipotent government that rejects traditional Judeo-Christian moral and social values.

It is this Secular Humanist faith that explains the letter I received today, parts of which I reproduce below, along with my interlineations in red:

Do you know how the Religious Right is now targeting your neighborhood, and every town and city in America?

By joining local school boards and local communities . . . winning local elections . . . and creating local precedents with NATIONWIDE consequences . . .

Dear Friend,

They want to hit you right where you live.

The Religious Right has hijacked Christianity and claims to speak for all people of faith . . . and its leaders and activists want to force their ultraconservative agenda on you and your community.  [You'll notice that Americans United does not argue, because it can't, that religious Christians are trying to enforce their faith on Americans, which would be unconstitutional.  Instead, it just makes it sound utterly evil that religious people want to get involved in local politics to advance their values, something that the Founders generally and Jefferson specifically would appreciate.]

The goal of the movement’s members is nothing less than to shatter the wall of separation between church and state . . . and force you to live a “moral” life.

Their morals!  [Again, this statement ignores the fact that our government is set up so that all citizens, including religious citizens, are welcome to get into politics to advance their values, including their "moral" values.  They just can't use politics as a means of forcing you into their church, something even the hysterics at Americans United cannot say is the case.]

And if they can’t get into your public schools with creationism . . . if they can’t get into your pharmacy to deny patients and their doctors the right to make medical decisions . . . if they can’t use the power of their pulpits to choose your political representatives . . .  [If they can't do all that, then they'll leave more room for the Leftists to get into your public schools with endless scare tactics and indoctrination regarding anthropogenic climate change, pro-illegal alien propaganda, pornographic sex education, and identity politics and anti-marriage activism.]  UPDATE:  Per Atlas Shrugged, we now know that Lynn’s particular brand of non-deity center religion is being actively foisted onto American students.

. . . Then they’ll zero in on friendlier, more willing targets to get the political clout and legal precedents they need . . . which then may have nationwide ramifications.

FROM THE BOTTOM UP, THE RELIGIOUS RIGHT IS WORKING TO CHANGE NATIONAL AND LOCAL POLICIES

[I've deleted the bit in Barry Lynn identifies himself, his career and his organization.]

Throughout those years, we’ve seen what happens when religious extremists like Pat Robertson and James Dobson get their way:

* A tax-funded “faith-based” initiative that forces citizens like you and me to pick up the tab for the Religious Right’s ideology-based social agenda.  [I have no idea what Lynn is talking about here.  As I detailed above, as a tax payer and a parent, I'm currently paying for my children to learn about increasing discredited AGW, the virtues of illegal immigration, radical sex education, anti-marriage values, victim-based identity politics, etc., all of which are part of the Leftist religious canon.  After all that kind of intellectual garbage, just how bad can the Religious Right's "ideology-based social agenda be?]

* “Marriage amendments” that turn out anti-gay voters and swing elections.  [This is a perfect example of Lynn's confusion about the different between a state religion, and religious people speaking up within a state.  The religious right did not seek to force people into a religious viewpoint about marriage in California.  That is, no one said, when we pass this law, you'll all have to become Mormons.  But people who are religious and take seriously the fact that Western religions limit marriage to a man and a woman certainly did get out and vote.  What's really ironic about Lynn's sentence here is that it was Obama's presence in the election that was the "swing" factor, since the same blacks who made their way to the polls so they could vote for him, also happen to come from religious backgrounds that created in them values antithetical to gay marriage.]

* Houses of worship endorsing political candidates, violating their tax-exempt status.  [If I remember my election history correctly, the Democratic candidates were barely able to peel themselves out of Leftist houses of worship, and had Leftist religious people crawling all over them.  I'm unaware of any celebrated case in which the IRS went after any church, Left or Right, for encouraging its voters values in such a way that the voters learned towards one candidate or another.  Churches are allowed to teach values -- and in heated elections, those values may steer voters in one direction or another.  This is not the same as endorsing a candidate.]

* More restrictions on reproductive choices chipping away at the right of access to contraceptives and services that citizens have worked so hard to win since the 1960s.  [I don't need to make my argument here again about the difference between religious people using the government to force all people to Catholicism or Baptism, so that they forswear abortion, something that hasn't happened and won't happen, and the fact that people of faith are disturbed by the number of abortions performed annually, and who seek to change the laws to change that situation.  What I do find interesting, however, is the way in which Lynn's sentence makes it sound as if religious people aren't "citizens."  "Citizens" work for abortion; religious people are scary zombies who block citizens from their Progressive-guaranteed rights.  That kind of phrasing highlights the way in which the Left is incapable of acknowledging that religious people are citizens and that the Constitution clearly allows them to use government to advance their values, although not to advance their specific faith.]

I’ll stop here.  Believe it or not, there are three more single-spaced hysterical pages with this types of ignorant, mean-spirited demagoguery.

Long-time readers know that I don’t even really have a dog in this fight, as I am a non-religious Jew.  I am, however, intellectually honest, and it disgusts me to see the Left try to use our Constitution and the deeply religious Thomas Jefferson as vehicles by which they shut religious people out of politics and civic discourse.

Cross-posted at Right Wing News

All of us have been worried that the Obama Administration, working in tandem with a wildly Democratic Congress, wants to clamp down on freedom of speech.  Heck, in true Orwellian fashion, the House of Representatives has already taken myriad terms off the table for fear that they might be used against their Fearless (albeit whiny) Leader.  We also know that Obama’s new “Diversity Chief” at the FCC, Mark Lloyd, is bound and determined to shut down conservative radio.  The Democratic administration’s cry of “racist” when it comes to any opposition to Obama’s policies is also meant to shut down speech by shaming the speakers.  Still, we have a First Amendment and, ‘though it’s getting battered and bloody, it’s hanging in there and protecting us for the time being.

Things are not so good in other places, and I’m not talking about North Korea, Cuba or Venezuela.  We all watched last year as Mark Steyn, Ezra Levant and Kathy Shaidle were attacked by the Canadian government for having the temerity to offend Muslim sensibilities.  In Canada, for goodness sakes!  We tend to think that our country is an awful lot like theirs (only less tidy), but it turns out that there are fundamental differences in the two countries when it comes to a citizen’s relationship to the state, and the control the state has over its citizens.  The same holds true for England.  We look to England as the mother country, the one that gave us ideas about constitutions and freedom and equal rights at the law, etc., but we forget how far we’ve outstripped England when it comes to those principles — an outstripping that finds its source in our unique American Bill of Rights.

Well, today’s British news served to remind me, once again, how very different a country is when it has a constitutionally enshrined right to free speech from one that doesn’t.  In England, two Christian hotel owners are being prosecuted by the government (this is not just a civil suit between citizens) for having “offended” a Muslim woman when they stated the historically and factually accurate truths that Muhammad was a war lord (and proud of it) and that Islamic dress does not serve women well (emphasis mine):

A Christian couple have been charged with a criminal offence after taking part in what they regarded as a reasonable discussion about religion with guests at their hotel.

Ben and Sharon Vogelenzang were arrested after a Muslim woman complained to police that she had been offended by their comments.

They have been charged under public order laws with using ‘threatening, abusive or insulting words’ that were ‘religiously aggravated’.

The couple, whose trial has been set for December, face a fine of up to £5,000 and a criminal record if they are convicted.

Although the facts are disputed, it is thought that during the conversation the couple were challenged over their Christian beliefs.

It is understood that they suggested that Mohammed, the founder of Islam, was a warlord and that traditional Muslim dress for women was a form of bondage.

They deny, however, that their comments were threatening and argue that they had every right to defend and explain their beliefs.

In other words, in England, even to have a fact-based discussion that offends Muslims can turn you into a criminal.  And I do mean fact-based.  The Koran is one proud boast after another regarding Mohammed’s martial prowess.  To the extent the Koran constitutes both a religious source book and the sole historical record about the man, he was indeed a warlord — and, as it happens, a religious leader too.  Further, I don’t know about you (and it’s very un-PC of me to say so), but Ibelieve reasonable minds could consider the burqa a form of bondage:

It’s becoming clear that, of all the dangerous things coming out of the Obama White House — the criminal ACORN associations, the cozying up to the worst actors in the world while alienating our friends, the attempt to socialize our economy, etc. — the single most dangerous thing may prove to be the one that’s slipping under the radar, and that’s the assault on the crown jewel of our Bill of Rights:  Freedom of Speech.

My son came home from public school the other day complaining that one of his teachers used a history lesson as an opportunity to launch into a short speech about how Obama was going to bring peace to the world.  (Which is true, if you accept that, as Charles Krauthammar points out, Obama is going to go one better than the Romans.  While they made a desert on someone else’s soil and called it piece, Obama seems intent on turning America itself into the peaceful desert.)  I very politely complained about this manifest breach of propriety on the part of a public school teacher.  The administration received my complaint equally politely.  I don’t know if the school did anything, but I do know that the teacher is still there — which is okay, since his infraction (the first that I know of) deserved only a warning.

I mention this bland little episode to contrast it with the experience of two students who made the mistake at a public college of sitting in a teacher’s private office and offering a prayer for her good health.  Please understand here that it was not the school that was imposing religion on students.  Nor were the students proselytizing in a public forum.  Still, what they did sent the administration at the College of Alameda over the edge:

The students, Kandy Kyriacou and Ojoma Omaga, said college officials at first told them they were being suspended for “disruptive behavior,” then held disciplinary hearings and sent them letters warning that they would be punished if they prayed in a teacher’s office again.

[snip]

The case dates from the fall of 2007, when Kyriacou and Omaga were studying fashion design and merchandising at the two-year college and took breaks from class to pray with each other and other students on a balcony, according to their suit.

Kyriacou prayed with the teacher, Sharon Bell, at an office Bell shared with other teachers, on two occasions in November and December 2007. The second time, a day when Bell was feeling ill, another teacher entered the office and told Kyriacou, “You can’t be doing that in here,” and the student stopped praying and left, the suit said.

Kyriacou and Omaga received suspension notices 10 days later. Omaga was accused of praying disruptively in class, Illston said, citing testimony at the students’ disciplinary hearings.

Apparently like so many organizations manned by Progressives, the administration believes that the First Amendment ban against government making a law “respecting an establishment of religion” means that government must destroy all forms of religious expression.  This misinterpretation — from educators, yet! — is especially appalling given that the very next clause in the First Amendment makes it very clear that the government cannot interfere with the “free exercise” of religion.

Kyriacou and Omaga have sued, although their demands have been restrained.  Barring a request to be compensated for attorney’s fees, they seek only an “acknowledgment of their rights, an apology and removal of all disciplinary action.”  The local federal, showing much more good sense than I would have expected from a judge sitting in the Ninth Circuit, has ruled that the plaintiffs can proceed with their suit:

In seeking dismissal of the suit, lawyers for the Peralta Community College District argued that the school was entitled to designate faculty offices as “places for teaching and learning and working,” and not for “protests, demonstrations, prayer or other activities” that would be disruptive.

The students countered that they were being punished for the content of their speech, not its disruptiveness.

Illston said the students could try to prove that the school treated religious expression more harshly than other speech.

“If you can’t stand the heat, get out of the kitchen.”  — Harry Truman.

If you can’t stand the heat, get goons to frighten your opponents — and in Missouri, this means rounding up Democratic government prosecutors and officials to threaten people with prosecution for political speech.

This is the second in my series of marriage posts.  My first draft, which was a failure, tried to trace the history of marriage, something that’s much better done by better informed people.  What I realized from that valiant, although pointless and time-wasting effort, is that what I’m really interested in is a religion’s interest in marriage, a state’s interest in marriage, and the intersection between those two in America.  This post may ultimately not end up being any more useful or interesting than my abandoned effort, but it still accurately represents some of the things I believe we need to think about before signing off on gay marriage.

Before I dive into the substance of my post, let me say here what I always say in connection with these gay marriage posts.  I think gay marriage represents a sea change in human relationships.  Since the dawn of time, in all cultures, marriage has involved men and women, and that’s true whether we’re talking polygamy or monogamy.  Even in Greece, a culture people like to point to as one that encouraged homosexual relationships, marriage itself was still strictly a male/female event.  This traditional approach to marriage reflects basic biology, something I explored more here, in my post about the procreative component of marriage.

In other words, what’s being proposed now is something that runs counter to all of human history — and a facet of human history deeply rooted in human biology.  That’s not in and of itself a good reason to issue a categorical “no” to gay marriage.  It is, however, a very good reason not to rush into the subject and definitely not to let judges, who are one of the weakest links analytically, intellectually and emotionally in modern society, to make the decision for us.  This is a topic that requires debate and thoughtful analysis, and I’m doing my bit here, at my blog.  So, back to the post:

Religion and marriage:

As far as I know — and please correct me if I’m wrong — all of the world’s major religions incorporate marriage as a component of faith.  The Catholic Church defines marriage as one of the sacraments.  For the uninitiated (and I count myself among that crowd), Wikipedia has what seems to me to be a nice summary of what the sacraments are:

According to the Catechism, Jesus instituted seven sacraments and entrusted them to the Church.^[46] These are Baptism, Confirmation, the Eucharist, Penance, Anointing of the Sick, Holy Orders and Holy Matrimony. Sacraments are visible rituals which Catholics see as providing God’s grace to all those who receive them with the proper mindset or disposition (ex opere operato).

In other words, marriage, if it is at all possible to achieve that state, is an integral part of the Catholic faith.  Deliberately shunning marriage is, I presume, tantamount, to turning your back on God’s grace. Although I’m shaky on Protestant doctrine when it comes to marriages, I have the sense that, while Protestantism abandoned the terminology of the “sacraments,” it kept the concept, with marriage being an integral expression of religious faith.

Jews too see marriage as an essential act of faith, putting into effect both (1) God’s direct command that his followers are fruitful and multiply, and (2) God’s intention, expressed when he created Eve as Adam’s companion, that men and women form lasting companionable partnerships.

And as we all know Islam also strongly advocates the marital relationship.

A little research reveals that in Hinduism, too, marriage is a sacred religious covenant.  About.com has a brief summary, which I quote from here at length, since it leads to my next point about religion and marriage:

In Hinduism, man and woman represent the two halves of the divine body. There is no question of superiority or inferiority between them. However, it is a scientific fact that the emotional side is more developed in women. This does not mean that intellectually, women are inferior. Hindu history is witness to the super-women, like Gargi, Maitreyi and Sulabha, whose faculty of reasoning was far superior to that of ordinary mortals. But owing to organic differences in their physical and emotional constitutions, women are temperamentally more emotional than men.

[snip]

The idea behind the institution of marriage in Hinduism is to foster, not self-interest, but love for the entire family. Practice of self-restraint is the ideal of marriage in Hinduism. It is the love and duty cultivated for the entire family that prevents the break-ups.

[snip]

The present-day Hindu husbands fail to recognize the sacrifices and lofty ideals of Hindu wives, and thus compel them to follow the worst of the West. During the nuptial ceremony in a Vedic marriage, both the bride and the bridegroom take oath for the practice of self-restraint, to work together for the welfare of the family and to help each other to attain spiritual peace. This lofty ideal of sanctity is a great gift of Hinduism to the world at large.

As you probably noticed, the above description has all sorts of pragmatic reasons for marriage:  self-restraint, companionship, family and the complimentary nature of male and female emotional lives.  Judaism, too, has a focus on marriage that can be seen as very pragmatic, and untied to things spiritual:  children and companionship.  Indeed, I’m willing to bet that, if you go back in time and study the origin of marriage in each of the world’s religion, you’ll see that it’s tied to some practical goal.

At this point, of course, advocates for changing marriage start to argue that since marriage is a pragmatic means to an end even in the context of religion, religions should be changed to accommodate gay marriage, which is also a means to an end of companionship, family and (through adoption or insemination), children.  This argument is plain wrong, though.

Regardless of the reasons the religions advance for marriage, the fact remains that heterosexual marriage is an integral part of each religion, and is seen as a necessary step for any given religion’s practitioners to take to achieve religious fulfillment or commitment.  A civil society cannot change these fundamental doctrinal facts, no matter how much it is able to rationalize the reasons for the nexus between marriage and faith.  Any given religion’s control over the marriage of its practitioners is sacrosanct and untouchable no matter how much you try to rationalize it away.

The state and marriage:

The modern state encourages marriage.  Why?  Originally, states were inextricably intertwined with religion.  Starting with Constantine, where the ruler went, so went the people.  If religion demanded marriage, well then, dammit, so would the religious state.  That’s not the case anymore, especially in America.  Thanks to the First Amendment, the American government cannot mandate that everyone get married because “X” religion says so, nor can it demand that all who want to get married have to do so under the aegis of “X” religion.

Although there can be no religious element to marriage in American, the state is nevertheless heavily vested in the union of men and women.  This involvement is completely separate from religious unions, although, confusingly, they share the same name:  marriage.  The deal in America is that, if you want to have a solely religious marriage, that’s fine — only you won’t get any of the benefits the state extends to people who simultaneously enter in a civil marriage contract.  What are those benefits?  Here’s a partial list proponents of gay marriage assembled (from an alleged total of 1400 benefits), along with some comments from me, in blue:

• joint parenting; [This is a biological one:  his sperm, her egg.  However, it can be circumvented by having the non-biological parent adopt the child, something that has happened in step-families for centuries]
• joint adoption; [My understand of adoption is that both parents have to be vetted.  I assume there's an extra procedural hurdle to issue the adoption papers for John Smith and John Doe, as opposed to Mrs. and Mr. John and Jane Doe.  However, it certainly hasn't stopped numerous gay couples I know from adopting.  Adoption is always a procedural pain in the neck from the stories I've heard.]
• joint foster care, custody, and visitation (including non-biological parents); [See above.]
• status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent;  [This can be arranged contractually.]
• joint insurance policies for home, auto and health;  [This can be arranged contractually.]
• dissolution and divorce protections such as community property and child support; [This can be arranged contractually.]
• immigration and residency for partners from other countries;  [I'll agree that this is definitely a difference between people married, versus people merely committed to each other.  Marriage would seem to add some credibility to the claim that the non-resident is involved in a true relationship with the American citizen, rather than a sham for immigration purposes.  Given that both our immigration policies and are marital policies are increasingly sham-like themselves, it's hard to believe that this is an insurmountable hurdle.]
• inheritance automatically in the absence of a will; [Write a will.  Most married people I know have written wills anyway, because the "one size fits all" of an intestacy statute is a disaster waiting to happen.]
• joint leases with automatic renewal rights in the event one partner dies or leaves the house or apartment;  [In San Francisco, landlord tenant laws are such that this is not a valid reason to claim marriage as a benefit over non-marriage.  Once you're in an apartment, you've got squatters rights, which is one of the reasons I refused to yield to my husband's importuning that we buy residential properties in SF to rent.  I don't know the law in places that don't protect tenants as much.  Again, though, change the contract.]
• inheritance of jointly-owned real and personal property through the right of survivorship (which avoids the time and expense and taxes in probate); [Properties can be held in joint tenancy by non-married people.  This is again a contractual matter.  You can set up trusts, re-title property, etc.]
• benefits such as annuities, pension plans, Social Security, and Medicare; [I have no idea about this, but suspect that it's true that federal government benefits cannot be amended by contract.]
• spousal exemptions to property tax increases upon the death of one partner who is a co-owner of the home; [I don't know about this -- taxes are a blank slate for me -- but I assume that there are again contractual or commercial steps one can take to circumvent this problem.  I freely concede I may be wrong here.]
• veterans’ discounts on medical care, education, and home loans; joint filing of tax returns;  [Joint filing of tax returns is no privilege, it's a penalty.  I don't know about veteran's benefits but, given that the military won't recognize homosexual relationships, I'm sure it's true.]
• joint filing of customs claims when traveling; [BFD.]
• wrongful death benefits for a surviving partner and children; [If you've adopted the children, I don't believe that they can be deprived of wrongful death benefits.  I don't know about the surviving partner, although I assume that, again, most business and insurance companies have set this up so that a person can be named contractually.]
• bereavement or sick leave to care for a partner or child; [Again, adoption solves the child problem; and I don't know about the partner problem.]
• decision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her; [This can be resolved contractually, if the deceased is an adult.]
• crime victims’ recovery benefits;  [Don't know.]
• loss of consortium tort benefits; [Probably depends on the state in which the consortium tort benefits are claimed.]
• domestic violence protection orders;  [Depends on the state, I guess.  Also, anyone who is the victim if violence can, in theory, get a protective order.  The problem is that, whether you're partnered or not, they don't do much good.  Also, if you're not married, you theoretically have an easier time getting out of the domestic violence situation than someone who is married and whose life, as a matter of law, is deeply entwined with that of the violent partner.  In other words, this sounds redundant.]
• judicial protections and evidentiary immunity [Evidentiary immunity -- no doubt about it.  There is no law saying a gay partner cannot be forced to testify.  I don't know about other judicial protections.]

Clearly, a lot of the automatic benefits — and burdens — bestowed on married couples require some extra work for gay people.  And there are definitely some benefits that won’t go to gay people at all.  None of these details, though, change the fundamental question:  Is it in the state’s interest to make all these benefits automatically available to gay people?  States that have legalized civil unions have said yes, taking away the complaint that the local state government is depriving gays of the same ease of access to government benefits that is granted to straight married couples.  Presumably, the federal government could do the same thing without actually calling it marriage.

But I’ve digressed — again.  Let me restate my question:  Why the heck does a civil state care about marriage to the point where it extends all these benefits?  There are lots of answers.  I’ll start with a few, and leave you to fill in the rest.

One of the primary reasons is convenience, both for the married people and for the state.  Since our culture’s default setting is for heterosexuals to pair up, and since our Judeo-Christian heritage has seen to it that this pairing up falls under the rubric of marriage, it’s infinitely easier if the state treats these pairs as a single entity.  Half the tax returns (even if people are penalized for filing them), half the number of adoption forms, half the this and half the that.  This also allows for huge numbers of presumptions about parenting — who has genetic rights in the children, who can be relied upon to care for the children, who would want his or her estate to go to the children, etc.  The efficiency of treating permanently joined couples as one, and of making certain presumptions about them as a matter of law, is overwhelming.  This benefit — to the state and to married people — would not change if marriage were extended to gay couples.

Intangible societal benefits also flow from marriage, and this is one of those things where the state’s benefit is our benefit too.  As I’ve mentioned in my first post about gay marriage, marriage stabilizes men by focusing their testosterone on the protection of their wives and children and, by extension, on the protection of a stable, coherent society that will provide the maximum benefit to those same wives and children.  Marriage is also beneficial to women since, biologically, they spend a lot of down time being pregnant and caring for children.  A stable marriage ensures that they won’t have to be dependent on themselves, strangers or the state for these basic needs.

Stable married couples also tend to demand stable communities.  To begin with, they want safe, attractive communities for their children.  They also tend to be much, much more sociable.  The moment I had children, I realized I’d joined the largest club in the world.  It was no longer a matter of sporting the right clothes, or walking a dog in the right neighborhood, or having the right hobby in order to find people to talk to.  Everyone who has ever had or wanted a child was an instant acquaintance.  This creates intangible community bonds that are invisible to those who don’t have children.  These bonds, again, encourage a thriving society where everyone, for his or her own benefit, works for the common good.

Frankly, gays with children can join this club too, and would have these interests too, so the state should be encouraging gays to have children.  The question, of course, is whether marriage is a necessary prerequisite to encourage gays to have children.  I don’t have the answer to that.

Do the above factors include “encouraging traditional values?”  I don’t know.  If by “traditional values” we mean having children and raising them to be useful members of society, defending our country, keeping our communities safe and thriving, etc., the factors I’ve set out above are definitely policies aimed at preserving and encouraging traditional values, whether or not civil marriage is extended to gays.  If we think “encouraging traditional values” must include as one of those values “heterosexual marriage,” we come to a standstill.  In that case, the state cannot simultaneously preserve heterosexual marriage while opening marriage to gays.

At the civil side, it all seems to boil down to what one believes should be the state’s ultimate goals.  If one believes that heterosexual marriage is an ultimate goal, or if one believes that the nature of the gay lifestyle is such that, even extending marriage to gays would not bring them into the “stable society” fold, the debate is over.  There is no societal virtue in having the state recognize gay marriage.  If one believes, however, that gay marriage would increase the state’s ability to impose on its citizens all of the traditional virtues (but for heterosexual marriage, of course), while simultaneously increasing convenience for both the state and its citizens, gay marriage becomes a viable option.

Religious freedom in America versus gay marriage

Again, though, that’s not the end of the analysis.  We continue to have problems because of America’s unique nature, which has seen the law develop so that the courts and the government have the power to prevent private individuals and organizations from depriving fellow citizens of rights.  Even if we agree that the state will not be compromised by allowing gay marriage, we still run the risk of creating a Constitutional Frankstein’s monster.

As we’ve seen already from legions of newspaper stories, both at home and abroad, gays are routinely, and successfully, suing religious individuals and organizations (or bringing administrative proceedings) in an effort to force them to fall in line with state norms about homosexuality, even if those norms are antithetical to religious norms.  Individuals and organizations that don’t want to extend benefits to same sex partners, or who don’t want to arrange adoptions for gay couples, or who don’t want to use their venues to host same sex marriages, or whatever else is being asked of them, are being challenged through the courts and through government bureaucracies.  Their religious convictions are being attacked through state vehicles.

These bureaucratic and judicial attacks would seem to run directly counter to the First Amendment’s first clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The government is prohibiting the free exercise of someone’s religion if it forces that person to lose his livelihood or his home or his business if he won’t engage in acts antithetical to what are still fairly mainstream religious beliefs.

In other words, no matter how one tries, as I did, to make a pro and con list of the religious and civil aspects of marriage, one still runs into a single, possibly insurmountable problem:  For the state, in the form of the federal government, to impose gay marriage throughout American means that Congress will, by definition, have enacted a law prohibiting the free exercise of someone’s religion.  That violates the First Amendment.  The only way not to violate it is to enact a Constitutional amendment, something that might state “Congress may pass a law allowing gay marriage and that will be the exception to the prohibition against Congress passing a law prohibiting the free exercise of religion.”  Absent that change, which is an enormous undertaking, I actually don’t see how the feds can allow gay marriage without violating the existing Constitution.

Of course, given the increasing activism of the Courts and government bureaucracies, and their routine willingness to subordinate religious freedom to the intangible goal of equality of outcome, my question, while academically interesting is probably moot.  I can assure you that, in an Obama Supreme Court, the justices will easily find some intangible right to gay marriage that entirely trumps the First Amendment.

I feel I should state some sort of conclusion here, but I don’t rightly now what my conclusion is.  I can summarize my argument, though:  Most religions do not and cannot be forced by the state to recognize gay marriage.  The state’s more pragamatic interests in marriage probably would not be too greatly compromised by gay marriage.  The state’s vision of society might or might not be comprised by gay marriage, depending on what that vision is.  But all of that may be moot because it appears that, if Congress recognizes gay marriage, which is the ultimate gay demand, it will create a fundamental clash with the First Amendment that will be resolved only by the Supreme Court.  And as the tight victory for the Second Amendment reveals, even the currently composed Supreme Court could go either way.  An Obama Supreme Court will toss religious freedom out the window.

As is always the case, the way this should be resolved is through a Constitutional amendment (which is how the abortion matter should also be addressed), but the activists will never go that route when they think they have the Courts in their pockets.

Your thoughts?

UPDATE: Here are to further points. First, this is an example of what happens in a society when men don’t get the calming influence of marriage and the societal-beneficial investment into a family.

Second, I wanted to point out something I hadn’t made clear in my post, namely the fact that, in America, freedom of worship is not limited to doctrinal practices.  That is, it’s not simply that the government can’t make a law prohibiting church services or banning the reading of the Torah.  In case after case (many involving Jehovah’s witnesses in the 30s through 50s), the Court’s have held that people cannot be forced to engage in day-to-day life practices antithetical to their beliefs.  The most obvious example is the fact that the government has routinely issued conscientious objector status to those who can show that they are true adherents of religions that genuinely have pacificism as a core part of the belief system (such as Quakers).

UPDATE II:  It’s people like this gentleman (and I’m being generous saying, not only “gentleman” but also “people”), who are common fixtures at gay pride parades, who may give some Americans the impression that gays are agitating for marriage for reasons other than merging with societal norms.  That is, perhaps they’re just making a political point:  We want it, not because it leads us to our ultimate goals of societal normalcy, but because we currently don’t have it.

UPDATE III: Scott’s comment and an email from DQ both tell me I need to clarify something. Here goes:

The distinction I have in mind when I make my First Amendment argument is predicated on the differences between “mere” cultural practices and core religious doctrine. Both Scott and DQ are correct that there is nothing to stop the state from issuing civil marriage licenses. No one would contend that, if it did so, though, that law would force religious authorities — rabbis, priests, imams, etc. — to perform gay marriages.  I know that the state would not get involved in church affairs in that way.

The people I’m thinking about are the ordinary citizens whose lives or livelihoods intersect with the marriage business. Examples of this would be the Massachusetts Catholic charity that was put out of business because it felt doctrinally barred from giving children to gay couples. Another example, which happened in England (but could happen here under new laws) is the owner of a fancy reception hall being fined and put out of business because he won’t open his home to gay weddings.

Incidentally, the ban against polygamy (which DQ mentioned in his email to me as an example of the US messing with religious marital principles) was grossly unconstitutional if one believes that, as of the 1860s, Mormonism was, in fact, a true religion. The only way the US gov got away with it was (1) because Mormonism was not an established religion and (2) Utah wanted desperately to move from being a territory to becoming a state.  Islamic polygamy, which is banned under anti-polygamy laws, actually has the same problem, although I don’t know Islam enough to know whether one can argue that polygamy is a cultural practice, not a doctrine.  If the former, it can be banned.  If the latter, it’s questionable whether it can be.

With the major faiths – Christianity, Judaism, Hinduism, Islam, etc. – we take it as given that they’re true religions and not merely convenient fictions for certain behaviors (which is the negative view Americans of the 1860s took of Mormonism). Even when we separate core doctrines, central to the religion itself, from practices rising up around the religion, we see that marriage is a central practice to each religion. Given that marriage is not merely a ritual or habit but is, instead, vital to the religion, the US theoretically should not be able to force religious citizens (as opposed to their priests, rabbis and imams) to participate in gay marriage ceremonies – or, worse, to be punished for refusing to participate.

So, again in theory, not only does not the rabbi not have to perform the ceremony, the Jewish caterer should not be sued for hundreds of thousands of dollars for refusing to provide the food. It’s the latter person who concerns me at a Constitutional level (the caterer), not the former (the rabbi), whom I know the government will leave alone.