Sunday, June 21, 2015

Same sex marriage, Tolerance, MYOB, Get Off My Lawn & the Constitution

As we grind towards a SCOTUS decision on same sex marriage, various socially conservative folks and organizations are suffering from an epidemic of pants-wetting and chest-beating.

In introduction, I'd point to the ever instructive tale "And Then There Were None" authored by Eric Frank Russell in 1951 that introduced the term MYOB (Mind Your Own Business) to the language and, to a significant extent, the philosophical landscape.

As with many things, MYOB is a multi-edged sword, as I'll explore later. Hang on tight...this may be a rough ride.


Until quite recently (on a historic scale), government more or less ignored the notion of who got married to whom. After the Civil War a variety of anti-miscgenation (no interracial marriage) statutes popped up, and in the early twentieth century heyday of eugenics the whole marriage license thing (i.e., "folks are too stupid to decide who to marry on their own! Government MUST STEP IN!") popped up.

However, beyond ensuring that participants in a marriage are competent and consenting adults entering into a civil contract of their own free will government has no legitimate role in deciding who can and cannot get married and its sole legitimate service is as a civil registrar and default adjudicator of disputed dissolutions.

Civil marriage, essentially a rather convoluted contract between two competent and consenting adults1, is a legal construct defining the obligations, privileges and responsibilities of those engaged in it (who gets the kids, what happens to property, survivorship, tax and legal rights, etc) and is somehow recorded in an official manner.

Some argue that even the default agreements defined by civil marriage should be dropped in favor of individually negotiated contracts of union, thus further lessening state involvement. See Alabama for recent efforts in this area.

The ethical argument is that civil marriage should be available to all competent and consenting adults, in such configurations as such adults believe will ensure their happiness - with neither subsidy nor penalty imposed by the state.

Religious marriage is an entirely different kettle of fish - a private institution whose activities, within exceptionally broad parameters, are protected by the provisions of the First Amendment. When little matters (say, human sacrifice or the use of peyote as sacraments) do come up for legal debate, they are held up against the harshest form of constitutional examination - "strict analysis" wherein the state actor (usually the folks saying "No. Human sacrifice is NOT ok." or "Peyote is bad, m'kay?") have to sell the judges (or SCOTUS) on the notion that not only is there some kind of compelling state interest, but that the state solution to that "interest" is  the least possible infringement on the right in question (here, freedom of religion).

Religious marriage can be considered either a second layer on the wedding cake, or a second sheet cake set parallel on the table to the first. Churches have performed marriages not recognized by the state, Churches have performed marriages not recognized by other churches, and the states have sanctioned marriages not recognized by various churches.

All well and good.

Each faith, within those very broad limits, gets to do its own marriage thing - but that marriage thing, by itself, bears no legal weight. This is also all well and good. Just because a particular faith doesn't like it if a Jew and a Catholic get hitched, or two muslim dudes (or dudettes) tie the knot, or when a Wiccan and a Buddhist of indeterminate gender get married to each other - doesn't mean that those things shouldn't happen - just that a particular faith cannot be compelled to honor or celebrate such unions.

Under such a relatively minor shift from our historic paradigm, everyone - more or less - wins.

Also under the shield of First Amendment protections is the right of people to make statements either celebrating or denigrating either a specific marriage ("YAY!" v. "Jason and Maria - the syphilitic leper marries the sociopathic nymphomaniac, we can but hope they do not reproduce") or a group of marriages as an entire class ("Same Sex Marriage is Bad!", "Inter-racial Marriage is bad," or even "Marriage as a broad general concept is bad!") - and then have those who disagree vigorously respond with criticism and unkind words.

II. You MYOB, too.

MYOB is a game everyone can play. Just be cause you marry someone that - for religious, practical or many other possible reasons - I consider exceptionally bad for either you or for society (or both), doesn't mean I get to do anything more than kvetch about it (and I should probably hold my tongue and let you discover your errors on your own). As long as everybody playing the marriage game is consenting, competent and adult - it's none of my business. (Note that offspring and policy regarding same should be considered a separate argument). 

III. Not everyone does it your way, nor should they have to...

Look. There are a bunch of different ways to do the marriage/family thing out there. So long as you start with competent and consenting adults - from a "does the .gov need to get involved" point of view, as a default you and yours should be allowed to go to hell in your own special and personalized way.

IV. Legal thoughts from a lay person

1) Yes. There are exceptions, with some states and nations permitting substantially sub-adult marriages. There are fights about "what's an adult?" and "what does competent mean???" and the ever popular "what's consent?" You'd think all these questions would be well settled, but no - even in the United States there are significantly different definitions for each of these terms.

2) Isn't marriage, and regulation of it a state level issue? Yes, yes it is. But two factors come into play - "Full faith and credit" and the broader requirement that states act within the bounds of the U.S. and their state constitutions. And off we go to Federal court....

What would you propose?

Get the state entirely out of the marriage business and limit their role to that of licensing and regulating private contract registrars (not unlike domain registrars), and beyond that dealing with the bad actors inherent to any situations where you have large numbers of humans interacting.

A few thoughts on the special snowflakes....or "Are folks engaged in long arm open carry the particularly badly behaved drag queens of 2A?"

So. Tell me how a bunch of drag queens showing up at a Catholic church and mid-service throwing a major hissy advances the cause of LGBT rights?

Or how would that same group of semi-theoretical drag queens, showing up at someones house, kicking in th
eir door, and starting to do a full-out drag show in the middle of the living room of a very startled resident improve LGBT relations with the broader community and protect and restore LGBT civil rights?

Finally, how would our same bunch of drag queens - now riding rental elephants complete with golden howdahs - crashing the local St. Paddy's day parade as a surprise participant improve LGBT rights/causes/etc?

In the first two cases, well before we would even have the discussion "well, how does this advance the cause and why was it a very bad idea?" we'd likely be having a lovely discussion of trespass on private property and breaking and entry...only then to discuss "gee, tell me again how this was such a great idea??" as the matter came up for hostile discussion the subsequent year in Olympia.

Any of the above would be counterproductive for the LGBT community (to put it mildly) and would merit (and likely receive) scathing criticism from that community.

Something roughly equivalent, less the elephants & drag queens & golden howdahs, resulted in a Supreme Court decision ( making clear that not only does a group have a right to associate freely - but that it has the right to refuse to associate.

This, perhaps, was not the intent of the LGBT activists - to score a SCOTUS decision effectively sanctioning their exclusion. This might, perhaps, be a lesson for those in the 2A community.

In other words, a group holding a private event (we'll get back to that shortly) has the right to insist on only admitting those it likes, that display "proper attire" (whatever said group might think such is) or persons that bring boxes of really good belgian chocolate. It may also, barring other provisions of law, ban from their event any person or class of persons the organizers feel either offensive or somehow compromise the First Amendment protected message of the organizers.

You will note the above uses "group" - not "LGBT" group. This is a game everyone can play, and was originally used to deny the right of a bunch of the LGBT Irish folk the right to march or participate in the Boston St. Paddy's parade - a private event.

Now, to our next question - WhAT IS A PRIVATE EVENT!!!!???

Now is a good time to grab an adult beverage and hang on tight.

A private event is some kind of event not sponsored or substantially organized by any governmental organization or paid for with government funds that has not been (for the most part, it gets a bit gray here) publicized as a public event.

As long as said event is held on private property and doesn't somehow violate other law(human sacrifice, as an extreme example, is considered poor form no matter where or at what kind of event you propose to do it at), participatory restrictions are pretty much fair game (consult your attorney for the few and odd exceptions).

A public event is *not* a private event. It happens when an event is announced as a public event or, in most cases, is a government sponsored thing (This comment applies ONLY to WA, and recognizes MANY exceptions). A public event or activity sponsored by a private body is still able to engage in some of the same restrictive practices that a private event may lawfully enact, but not all. IANAL - it's easier to "just not go there" and refrain from discriminating.

In WA, only Governmental bodies (specifically state/county/muni/odd-critters) are completely barred from most forms of discrimination - against gender/orientation/color/ethnicity/religion and, under separate statute, the lawful carry of firearms within the bounds of statue and precedent.

Now, the complex concept - you may believe (and even be correct) that you have the right to do something. That doesn't mean that the "something du jour" is a remotely good idea, isn't counterproductive, and might not look an *awful lot* like a false flag from the hostiles - but you have the *right* to do the "something du jour.*

It doesn't mean you should. It doesn't provide some kind of magic fairy dome immunizing you against criticism, even harsh criticism - particularly from those you claim to be helping who are in fact or believe they have been injured by your "something du jour." And it doesn't mean you have any right at all to demand support from those who you neither consulted, actively derided or simply ignored if it doesn't work out well.

It doesn't even mean that you are sufficiently festive in your "something du jour" that others - who if consulted and/or respected might otherwise have been neutral or even on your side - may not take steps (legislative or otherwise) to neutralize what they see as an active hazard to the well-being and rights of the community du jour (LGBT, 2A, Square Dance Association...fairly universal rule).

When that happens, everyone loses. Years long division that make working together well night impossible are formed, which serve only to ease the work of the hostiles (this is equally true whether we are talking 2A/LGBT/Warthog Breeders Association).

As someone with a wee bit of knowledge and experience of both the LGBT community and the 2A community - the LGBT community is "blessed" with its fair share of do-gooding "we want it all right now or will accept nothing" folks (aka "No Justice, No Peace"), and attention whores. The 2A community is equally blessed, heaven help us.

Neither community really benefits (beyond the "See crazy Uncle Sally over there? The one with the torch and pitchfork? Would you rather work with me or with him?" effect) from the non-consultative "in your face" my way or the highway approach. It can be useful as a last resort, but even then usually carries all kinds of backlash that can end up as a Pyrrhic victory.

The position "because four OC folk were denied access to a small Pride event I shall never again support gay rights for anyone" is a bit beyond the pale. It means you would never be able to work with potential allies, such as Pink Pistols. It means you would have difficulty working with pro-gun Libertarian folks. It is extending ones foot, drawing ones 1911, and opening fire upon the extended appendage. It also fails a fundamental concept of gun safety - target identification.

A far more productive approach might be to simply show up at the proposed site of the 2016 event for a *obscenely early in the morning picnic* with roughly a 100 or so of your best friends, OC'ing or CC'ing pistols, while wearing Pride shirts or Pink Pistols shirts (PP does not discriminate re orientation - if you shoot safely and not at them, they simply don't care)...and simply decline - politely - to vacate as you are present to attend a public event and to celebrate Pride held in a public place. If pushed, retreat to surrounding sidewalks and begin to pamphlet against bigotry.

Getting inside folks heads can neutralize hostiles, befriend fence-sitters, and build relationships that may be useful in pushing common causes forward.

Wednesday, June 17, 2015

Guilt by Association

For some time now, the vast majority of "mass shooters" have been some variant on "progressive Democrat", and for the most part tetched in some fashion.

Does that mean we should round up Democrats folks of a given political/religious/philosophical bent and keep them in camps for the safety of the general public? Or that we should preemptively incarcerate all mentally ill persons?

Of course not - but this is what our anti-gun opponents would wish on lawful gun-owners: collective punishment for the misdeeds of the few.

Doesn't a tiny part of you whisper "What's good for the goose?"

[Alright. Since I wrote this post based on recollections of some articles from a few months back, it appears that the underlying assumption (or at least the provability thereof) that mass shooters skew (D) has been debunked pending further data. Mea Culpa. The fundamental theme, however, that individual bad acts are, in fact, individual and it is wrong to engage in collective punishment or tar an entire demographic with the actions of a few sick or evil persons remains. So there.]