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The Unruly on the Ruling

August 5, 2010

Here is a nice anecdote from the best anecdote teller Jay Nordlinger:

For years, I interviewed young applicants for jobs at National Review, and it was my habit to ask them how they became conservative. More than a few said — sometimes blushing — “I listened to Rush Limbaugh.” And some of them went on to say, “Behind my parents’ back.” For about 20 years, Rush Limbaugh has been one of the most subversive forces in America. Those who like subversion rarely give him credit for that.

Only rarely the French Cowboy has the opportunity to listen to the Rush Limbaugh Show. Today, however, was one of those rare occasions and I heard him comment the Californian federal judge’s decision on Proposition 8. Monsieur Limbaugh’s final line was that — and I need to quote from memory here — “Judge Walker’s ruling says that the institution of marriage is nothing but homophobia.” And this, in the French Cowboy’s opinion, sums up the ruling very well.

Limbaugh also criticised the undemocratic nature of the ruling and how it fits into a pattern of cases in which the people’s wish was overrun by the Obama administration and other believers in the rule of the enlightened over the ignorant masses. About in that context, quoting from Federalist Paper No 45 by Madison, Rush pointed out how far we have come from the original design of the US:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

John Yoo’s comment on the California ruling taps on the question of federalism as well. Monsieur Yoo’s argument in favour of stronger state rights is that there will be experimenting and comparing among states to find out what truly works best — a thought that the French Cowboy strongly agrees with.

Yoo’s main point, though, is that it’s problematic that the ruling has been based on a number of social science studies presented by the litigating party. According to Yoo (and the French Cowboy), social sciences aren’t really that reliable. Furthermore, you have to wonder what kind of a door has been opened with this:

If gay marriage goes by the wayside because it is hard to measure a ban’s effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Finally, Yoo suggests that Judge Walker only accepted the “science” argument in this case because it fit his intended ruling. Walker wouldn’t deem it appropriate to strike down economic policies like the stimulus bills, though, where hard numbers clearly show that the law failed to achieve the promised effects.

Clearly, Judge Walker didn’t see what a precedence he’s set. If we were to reverse all laws that cannot be found to have a good rationale, ma foi!, we’d soon be back to a level of government much more resembling that of the early beginnings of the United States than today’s. That would be much to the delight of Rush Limbaugh and many others, but certainly not what Judge Walker wanted to start.

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