Gay Marriage in New Jersey

Just after New Jersey’s legislature passed a law legalizing gay marriage, Gov. Chris Christie followed through on his promise to reject the bill by quickly vetoing it and renewing his call for a ballot question to decide the issue. In returning the bill to the Legislature, Christie reaffirmed his view that voters should decide whether to change the definition of marriage in New Jersey. "I am adhering to what I've said since this bill was first introduced – an issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide," Christie said in a statement; "I continue to encourage the Legislature to trust the people of New Jersey and seek their input by allowing our citizens to vote on a question that represents a profoundly significant societal change. This is the only path to amend our State Constitution and the best way to resolve the issue of same-sex marriage in our state.”[1] Why stop at issues requiring a constitutional amendment? Although technical legislation requires representatives to wade through and discern specific ramifications pro and con, broad policy questions could also be subject to binding referendums. That is to say, representatives could be seen as doing only what the electorate cannot viably do.

Whether enacted by a legislature or by direct democracy, a law that takes basic rights away from a minority such as gays could be illegitimate even though passed democratically. Democrats in the New Jersey legislature argued “that same-sex marriage is a matter of civil rights, and that civil rights should not be subject to referendum.”[2] In other words, there are limits even to direct democracy, and the courts have a legitimate role in interpreting whether individual rights have been inordinately oppressed by the will of the majority.

In terms of legitimacy, passing gay marriage by referendum is the most legitimate, and without any need for the courts to step in to look at the matter of individual rights. Next legitimate would be such a law passed by a legislature. Again, the judiciary would not need to look at whether a minority is being tyrannized by a majority. Where a referendum or legislature passes a law or constitutional amendment forbidding gay marriage, as in 30 of the American republics at the time of Christie’s action, the democratic rights of a majority are pitted against the civil rights of a minority. Courts could look at existing constitutional articles to assess whether an amendment is constitutional. However, it is conceivable that such articles could be changed such that an amendment that refuses the right of a minority could not be touched by a court.

To take another example, all of the federal and state constitutional articles that prohibit slavery could be repealed and a new amendment making the practice legal would make it constitutional. No court could touch it because courts are limited to interpreting constitutions. In the case of gay marriage, the current equal protection language could be used to declare a federal amendment barring gay marriage unconstitutional. What if the due process language were changed by amendment and an anti-marriage amendment added? The U.S. Supreme Court could be forced to defend the new amendment if nothing else in the U.S. constitution could render the addition unconstitutional. Where the amendment is to a state constitution, planks from the federal constitution could be used, as was the case in California on Proposition 8 a week or two before the New Jersey legislature passed gay marriage.

From this, we can take away the following points:

1. On matters of broad policy, in which ideological judgment is more salient than technical knowledge, direct democracy is more legitimate than representative democracy. Such policy need not be limited to matters requiring constitutional amendment. Invading Iraq and extending the federal debt ceiling are two cases in point.

2. The majority acting to protect minority rights by legislative means or a referendum is the best case scenario in a republic because no constitutional interpretation by judges is necessary. 

3. Where legislation or a referendum bars a minority from exercising a right, the legitimacy of majority rule is pitted against that of individual rights. Accordingly, the judiciary has a legitimate interpretive role as such matters must be judged.

1. Angela Santi, “New Jersey Gay Marriage Bill Vetoed By Chris Christie,” The Huffington Post, February 17, 2012. 
2. Kate Zernike, “Gay Marriage, Passed, Awaits Veto by Christie,” The New York Times, February 17, 2012.

U.S. Senator Rand Paul on Civil Rights and the BP Explosion

U.S. Sen. Rand Paul (R-KY), was the Tea Party candidate who challenged the Republican establishment to win the party’s Senate nomination in Kentucky on May 18, 2010. A day later, he publicly criticized a plank of the Civil Rights Act of 1964. Specifically, he said in an interview with Rachel Maddow on MSNBC television that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business. He had raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio. Asked by Maddow if a private business had the right to refuse to serve black people, Mr. Paul replied, “Yes.” In so answering, the new senator failed or refused to distinguish private property that is open to the public from private property, such as a person's home, that is not. 

In citing the rights inherent in private property, Mr. Paul, an eye surgeon, was refusing to recognize the “publicness” in a business being open to the public, as distinct from someone’s house, which is not open to the public. In other words, Mr. Paul was ignoring the qualification to private property that comes into play as soon as said property is opened to the public.  Such property is quasi-public precisely because it is open to the public.  Hence, society, through its government, has a right to dictate the obligations going with that element of publicness.  Mr. Paul would have been on firmer ground had he limited his statement to private clubs, such as country clubs, which do not receive public money and are not open to the public.  However, even here, if people associate in a way that hurts others by intentionally excluding them, there might be an argument in favor of subjecting them to the Act, though such an argument seems weaker than those for freedom of association and on private property not open to the public.

Rand Paul also said on ABC TV that President Barack Obama’s criticism of BP in the wake of the Gulf oil debacle sounds “really un-American.”  Paul said that the president’s response is part of the “blame game” that’s played in the United States. The game, he argued, leads to the thinking that tragic incidents are “always someone’s fault” when sometimes accidents just happen. Sen. Paul was ignoring that BP overrode Transocean in directing its employees not to use “mud” to maintain pressure in the well as cement “corks” were being inserted.  Also, managers at BP claimed to have the technology to stop any leak or spill when no such technology existed. In short, the managers at BP put the Gulf at risk in order to cut corners so as to earn more profit (as if $2 billion a month was not sufficient).  Rather than go after the mentality of shirking amid a “more, more, more” mentality wherein nothing is ever enough, Paul went after the representative of the victim–society as a whole.  That is to say, he added insult to injury by going after the victim rather than the culprit.  In so doing, he ignored key elements of the culpability.

Listening to the candidate on the Maddow show on MSNBC, I was more concerned by the way he chose to evade questions than by his failure to take “being open to the public” into account in his view on civil rights law. At one point, Rachel Maddow asked him, “yes or no,”  on whether he would exclude private businesses from the Civil Rights law.  He replied that he was against the violence that took place in the 1960s in association with Walgreen’s lunch-counters. Beyond not answering the question, Mr. Paul seemed to be continuing with what he wanted to say–ignoring the question entirely as a mere interruption to be dismissed. I noticed a few times that after Maddow did indeed interrupt him, he simply picked up with what he had been saying.  Could his ignoring the questions be related to his ignoring the “open to the public” qualification and the risky shirking of BP?  In other words, might it be that Mr. Paul simply does not see what is inconvenient to his world view?  If so, I contend that this character trait is far more alarming than even his evasions and his over-simplified view on private property and the oil spill.  If you have ever tried repeatedly to tell someone something only to have your statement ignored as the other person continues on with what he or she was saying, you know what I mean. Sadly, I suspect that Rand Paul didn't notice it. This character flaw is by no means limited to him. Nor is this an invitation for partisan aspersions on the Republican Party.

Rather, I suspect that not answering questions--even asking one's own instead of given any answer to a question outstanding--is a growing attitude in modern America. I have witnessed it myself in emailing people I don't know on matters involving an actual or potential commercial transation. Does the computer come with Office 2007? Reply: When you would like to come by to look at it?  But what about Office 2007?  Or take apartment hunting:  Are utilities included in the rent? Reply: Call me to make an appointment to see the unit. Nietzsche would have a field day with such a mentality that vaunts itself as superior by "virtue" of its own assumed dominance. The basis of Rand Paul's non-answer, in other words, could have been an attempt to dominate beyond his place on Maddow's show. In other words, his non-answers could have been refusals rooted in a will to power that was biting off more than it could chew on someone else's show.

In terms of having a will to power based on strength, many of the stations or offices in modern society that we view as being entitled to dominate are in fact weak.  Nietzsche points to the modern moralist's thou shalt not as an attempt by the weak to dominate beyond their innate weak constitution. He also points to the attempts of the modern manager to dominate in such terms (and the priest as well). In watching various personalities giving non-answers while being interviewed on television, I find myself wondering if they know they are doing it. If they do, they are indeed rascals; if they do not, their stygian pathology is much deeper than I am equipped to investigate. Perhaps the modern illness is malignant narcissism to such an extent in a personality that the delimited perspective eclipses even awareness of what oneself is doing.

Sources: 

1. The Rachel Maddow Show. http://www.msnbc.msn.com/id/37273085/ns/politics-decision_2010/

2. Adam Nagourney and Carl Hulse, "Tea Party Pick Causes Uproar on Civil Rights," The New York Times, May 20, 2010.