IGF CultureWatch

President Barack Obama has now shared with us his view of the Supreme Court’s role, which is to uphold laws that are passed democratically by Congress, and that for the court to overturn such a law would be “unprecedented” and “judicial activism.”

As the Washington Post reports:

President Obama challenged the Supreme Court on Monday to uphold his administration’s sweeping health-care reform legislation, arguing that overturning the law would amount to an “unprecedented, extraordinary step” of judicial activism. …

Obama questioned the authority of the nine-member panel of unelected justices to reverse legislation that was approved by a majority vote in Congress. … “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said during a Rose Garden news conference. “Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

Obama added:

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

In reality, the bill was pushed through the House by Democratic leaders on a narrow vote of 219-212, not winning any Republican support. Even if it were relevant, “strong majority” is not only a lie, it’s a stupid lie.

Of course, he’s being mendacious and hypocritical (evidently, our great Constitutional scholar-in-chief has never heard of Marbury v. Madison, or so you might think). But even so, putting forth this argument will come back to bite “progressives” — such as when the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriage, which actually was passed by Congress with big (and bipartisan) majorities and signed into law by President Clinton, comes before the High Court.

More. David Boaz blogs at Politico:

It’s striking to me how the liberals and Democrats on this panel are bending over backward to defend the president’s strikingly inaccurate statement. … Everyone who observes the Supreme Court – every constitutional law professor, every reader of newspapers – knows that it’s just nonsense to say that it would be “an unprecedented, extraordinary step” to “overturn a law that was passed by a strong majority of a democratically elected Congress.”

More. Conor Friedersdorf writes at The Atlantic:

President Obama’s recent remarks notwithstanding, it isn’t as if the left wants a Supreme Court that consistently respects legislative majorities. The iconic decisions of the Warren Court, Roe vs. Wade, and efforts to extend marriage rights to gays are all premised on the notion that striking down popular laws is sometimes a worthy enterprise. Nor is the left going to champion fidelity to the text of the Constitution as it was understood at the time of the country’s Founding. And as Lawrence v. Texas shows, liberals are comfortable celebrating when longstanding precedents are overturned ….

Except when they’re not.

And from conservative columnist Byron York:

A decision on DOMA, which has not yet arrived at the Supreme Court, lies in the future. But if those arguments come when Barack Obama is president, perhaps DOMA’s defenders will remind the administration of the president’s respect for duly constituted and passed laws.

Furthermore. In the comments, “another steve” responds to criticism of this post from our loyal left-liberal readers:

It’s just nonsense to say the president’s remarks were taken “out of context.” They weren’t very long, you can read them in all the major papers. And many liberals immediately defended them, until the party’s talking points changed.

Finally, from the Washington Post fact checker: “It’s clear that Obama’s ‘unprecedented’ comment was dead wrong, because the Supreme Court’s very purpose is to review laws that are passed by the nation’s democratically elected Congress — regardless of how popular or well-intentioned those laws may be…. “

Via Real Clear Politics.

I think if President Obama came out as gay, he wouldn’t lose the black vote,” a cheerful Van Jones told MSNBC this afternoon. “President Obama is not going to lose the black vote no matter what he does,” he added.

Jones seems to recognize that homophobia is a factor in the black community, but goes on to dismiss its impact (and then, to be fair, he defends marriage equality, which few Republicans would do). Still, the linkage of “coming out as gay” and “no matter what he does,” with all that chortling between Jones and the MSNBC gang, is more than a little unsettling.

David Boaz blogs “Conservatives Shift on Gay Marriage.” Well, OK, it’s mainly about Britain’s Conservative Party, which is leading the charge for same-sex marriage in the U.K. But Boaz notes that, here in the U.S., “Republicans too know that ‘young urbanites’ are overwhelmingly supportive of marriage equality, and they don’t want to lose a whole generation.”

But when (or whether) the GOP can move forward by doing both what’s right (the principle of equal freedom under the law) and politically pragmatic (appealing to the center) in the face of intransigent opposition by the Santorum social right, whose activists still dominate GOP presidential caucuses, remains to be seen.

More. From Politico, Republicans Retreat on Gay Marriage:

Just a few years ago, House Republicans were trying to etch their opposition of gay marriage into the Constitution. Now? They’re almost silent. …

It’s not like the GOP has become a bastion of progressiveness on gay rights, but there has been an evolution in the political approach — and an acknowledgment of a cultural shift in the country.

And the article notes this:

A Wall Street Journal/NBC News poll released earlier this month showed a 9 percent increase in support for gay marriage among Republicans to 31 percent. Support among 18-to-34-year-olds was nearly 70 percent, according to a 2011 Washington Post/ABC News poll.

And so the wind blows.

Jonathan Rauch explains why Rick Santorum’s beliefs on privacy are deeply troubling, to say the least. He writes:

Defending sodomy laws, Santorum didn’t make the usual half-hearted point that the laws were rarely enforced. He came out swinging. Homosexuality is among behaviors that are “outside of traditional heterosexual relationships” and therefore “undermine the basic tenets of our society and the family.” People have no right to engage in such behaviors, even in their own homes.

Rauch then asks,

If the state can’t be trusted to regulate our markets, can it really be trusted to regulate our morals? By way of an answer, return, for a minute, to Houston in 1998. According to “Flagrant Conduct,” a fascinating and important new book by University of Minnesota law professor Dale Carpenter, what really happened in Lawrence’s apartment that night, though shocking, won’t surprise many gay Americans. Lawrence and Garner were not having sex when the cops arrived. …

Two officers freely admitted to Carpenter that their disgust at homosexuality was a factor in the arrest. Nothing new there. Sodomy laws in practice had nothing to do with the enforcement of virtue, and everything to do with the arbitrary use of state power against gays. Before Lawrence, many police departments treated baiting and entrapping homosexuals as a kind of sport.

Back to Santorum, Rauch observes:

He can’t revoke privacy, which the country prizes, and he probably can’t be president. But his ascendance could—and, by rights, should — break the already strained alliance of libertarians and social conservatives on which the post-Reagan conservative movement is built.

For more about Carpenter’s book on Lawrence v. Texas, here’s a link to the San Francisco Chronicle’s review.

Conservative Wall Street Journal columnist William McGurn discusses “The Gay Alternative to Obamacare,” by which he means GOProud’s critique of the Democrats’ signature power grab. McGurn writes:

Gay Americans understandably chafe at the way the tax code discriminates against them with regard to health insurance. If you are heterosexual, the insurance provided your spouse by your company is treated as a benefit—which means it is untaxed. If, by contrast, you are gay, the insurance provided your spouse or partner by your company can be treated as income—which means taxed.

And then he observes:

Yet with one notable exception, most gay organizations nevertheless continue to argue for solutions that expand the federal government’s role in health care and leave the employer privilege intact. The exception is GOProud, a pro-free market, pro-individual liberty, pro-limited government coalition of gay conservatives and their allies. This group argues that the problem with our tax code isn’t just that it discriminates against gays. It’s that it discriminates against every American who doesn’t have his or her health insurance through an employer.

The folks at GOProud aren’t asking for special treatment. To the contrary, they want a system in which all health-care consumers are treated equally. They argue that this requires a thriving national marketplace for individual insurance…

The point being:

“When the left does identity politics, they simply craft special policies that benefit particular groups,” says [GOProud’s Executive Director Jimmy] LaSalvia. “We’re about explaining how limited government and policies that treat everyone equally might benefit some people in unique ways. As conservatives, we need to do a better job of letting particular groups know how they would benefit from this approach.”

The statist left, including LGBT “progressives,” sees big government control as a way to eventually ensure equality, as long as progressives are calling the shots (and when they’re not and the mega-state falls into the hands of social conservatives, well, too bad). The libertarian view is that it’s better to reduce the role of government and allow free people to make their own decisions via voluntary contractual relationships within a free market system.

As the New York Times reports:

An attempt to repeal New Hampshire’s same-sex marriage law failed on Wednesday in the House of Representatives, with members of the Republican-dominated chamber voting 211-116 to kill the bill. …

With Republicans outnumbering Democrats by three to one in the House, which has approved a number of socially conservative bills this session, proponents of same-sex marriage feared early on that there was little chance of preserving the law.

“Every step forward is a sign of momentum,” said Marc Solomon, national campaign director for Freedom to Marry, a group that lobbies for same-sex marriage nationwide. “The fact that we got two-thirds of the vote, in one of the most heavily Republican legislatures in the country, will make a serious impact.”

The leftwing flagship Daily Kos ran a story headlined, “New Hampshire’s tea party-run legislature … upholds gay marriage.” It concluded, rightly, “In other words, progress.”

David Boaz writes at the Huffington Post about Cal Thomas’s Confusion About Freedom. I especially liked the blurb David posted on his Facebook page:

“Syndicated columnist Cal Thomas LOVES freedom. Just read his column today. Except the freedom to smoke pot, read pornography, love the person you love, marry the person you love, etc.”

Another promising new organizational leader is the Gill Action Fund’s Kirk Fordham. As the Washington Blade reports:

Growing up in a Christian and Republican family, Fordham said he also has experience with parents who initially were unhappy about his sexual orientation, but later came to terms with it, and he knows what it takes to change the hearts and minds of people like them. …

A lifelong Republican, Fordham currently serves as CEO of Everglades Foundation, but has had experience working for several GOP lawmakers on Capitol Hill, even some with anti-gay records. …

Fordham said he “absolutely” plans on reaching out to Republican lawmakers to influence them on LGBT issues and he knows “how to speak their language.”

Along with the impressive R. Clark Cooper at Log Cabin, the team at GOProud, and perhaps Chad Griffin, newly named head of the Human Rights Campaign (a liberal Democratic activist who has reached out to and worked with Republicans), the broader LGBT movement may yet realize that focusing on electing and lobbying Republicans who are socially libertarian (and preferably fiscally conservative) is the best way to make the Democrats less complacent toward us.

David Boaz of the Cato Institute remarks to Washington Post columnist Jennifer Rubin:

Every time Republicans have a big win — 1980, 1994, 2010 — it’s because Democrats have overreached on their big-government agenda and Republicans campaign on lower taxes and limited government. Every Republican strategist knows that smaller government is the unifying theme for Republicans and independents in this election. I think even Santorum knows it. I think he doesn’t really mean to get distracted into talking about homosexuality, contraception, and the outrage of separation of church and state. He just can’t help it.

In 2010, the nascent Tea Party movement, focused on fighting back against Obama’s trillions of dollars of debt expansion thrown willy-nilly at politically favored boondoggles, led to the GOP takeover of the House and strong gains in the Senate. But the empire strikes back, and social conservatives supporting Rick Santorum, the anti-libertarian, (and this) are showing they’re still potent.

This occurs just as the Koch brothers are attempting to take over the libertarian Cato Institute (a think tank that has played an important role in advancing gay legal equality, such as through its Supreme Court brief in Lawrence v. Texas that was cited approvingly in his decision by Justice Kennedy, and in supporting marriage equality) and turn Cato into another arm of their Republican election machine by placing Koch employees, Republican campaign operatives and social conservatives on its board. More on the libertarian-conservative divide from Outside the Beltway.

David Boaz writes of the societal progression toward gay legal equality:

Even as the Republican candidates fight to see who can get furthest to the right, acceptance of gay people and gay marriage in the United States is moving briskly along. … Republicans haven’t given up their opposition, but their resolve is weakening. A few GOP legislators helped put [marriage equality] over the top in New York, Washington, and Maryland. Former Republican national chairman Ken Mehlman and a group of libertarian-leaning GOP donors played a key role in [Gov. Andrew] Cuomo’s efforts in New York.

The formerly vocal opposition to gay marriage has quieted. Congressional Republicans haven’t revived the Federal Marriage Amendment. Conservative media stalwarts like Rush Limbaugh and Bill Buckley’s National Review have barely mentioned the issue. (When you search for gay marriage at National Review Online, you get lots of ads for things like “Gay Destination Weddings.”) The ambitious [N.J. Gov. Chris] Christie vetoed his state’s bill while also calling for a referendum on gay marriage rather than flatly rejecting the idea. He also has nominated an openly gay judge to the state Supreme Court.

As Boaz sums it up, “That sound you don’t hear is social change happening.”