As some of you may know, I also do some volunteer work with a magazine (the first issue is in stores NOW!!) called World Pulse . Anyway, we’re looking for some new columnists, and I’m hoping to tap into your knowledge and see if you can think of any women who might be good for this position.

From the publisher, Jensine Larson:

If you can think of anyone who would be good, let me know. It can be a friend or someonw you’re read. You don’t have to know them personally — you may have just read an article or book by them. OTOH, she doesn’t have to have been published or well-known. Perhaps she is someone you know (or maybe it’s you) who happens to have a strong interest in this subject and an ability to write about it. If you can think of any suggestions, please let me know.

Thanks!!

Twenty happy years ago, Jim and I married. I wish all who marry the joy we have shared. I also hope soon legal marriage will be possible for others who wish so fervently to marry.

Wandering around the blogosphere, I drifted over to the Volokh Conspiracy and I came across a contest at Crescat Sententia.

The contest: Whose vision of the constitution produces spifier diagrams?

It turns out that you have to pick between Randy Barnett’s and Laurence Tribe’s diagrams.

Well, come on! Do you have to be a lawyer to enter? Do you need to have a constitutional theory? Must the theory be reasonable? As I understand it, this is a contest for the best diagram. My diagram is best!

With all due respect, I think they should have announced this contest and let the rest of us enter. Aren’t the American voters all tired of having only two choices on the ballot?

Here is my diagram. It is based on the “Penumbra Principle” described in “Griswold v. Connecticut”. Think, birth control and right to privacy.

Vote for my diagram! Vote early! Vote often! Show those elite lawyers any one can win!

The Crestcat Sententia didn’t provide a method for writing in a vote. That’s just unAmerican. I suggest emailing wbaude@crescatsententia.org .

Oh, if possible, provide constitutional theory to go with my diagram. That’s what comments are for!
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Today, the California Supreme Court began hearing arguments in a gay marriage case. (Other stories: Oakland Tribune , and Judicial Council of Ca.. ) Actually, the case not about gay marriage; it’s about how much leeway the executive branch has when interpreting and executing laws passed by the California voters. Can a county executive (who happens to also be a mayor) decree a portion of the law unconstitutional and implement it according to their reading of the constitution? No matter what your point of view on same sex marriage, this is an interesting question in and of itself.

I don’t know about other people, but when I hear one interesting question, I immediately think of other related questions. So, I find myself asking:

Doesn’t the executive branch interpret laws, and implement them within the framework of the constitution all the time? If the a member of the executive branch truly believes a law is unconstitutional, what are they supposed to do? Can they refuse to implement the law and wait to be impeached or sued? Or is the executive required to implement the law, violate citizens rights and wait for the citizen to sue? If, the executive branch is required to execute laws it believes unconstitutional, what does our presidential oath of office mean?

Preserve, protect and defend the Constitution from whom?

It seems to me that, under our system of government, the legislature must try to avoid passing unconstitutional laws. (Since this law was passed by initiative, presumably those writing the initiative should avoid drafting unconstitutional initiatives!) Once they pass a law, the initial the responsibility for interpreting the law passed by the legislature lies with the executive branch. If a member of the executive truly believes a law blatantly unconstitutional, they cannot implement the law. The final responsibility lies with the judiciary. There is no other way. (Yes, you may all say “Duh”.)

Presumably, whoever wrote California’s marriage initiative thought the law they wrote constitutional; the law applied state wide. Even if the some member of the executive branch has the leeway to modify laws as they fit, does a county executive (who, in this case, is a mayor) have the right to interpret the constitution and overrule the legislature, or voters, particularly when the law applies state wide? Allowing every single county executive to interpret statewide laws in dramatically different ways could lead to chaos. On the other hand, if the legislature, or voters, passed a blatantly unconstitutional law, forcing a county executive to enforce it would mean some constitutional rights could be temporarily suspended.

Since I am entirely unfamiliar with the Constitution of California, I have no idea what the answers are to any of these questions. Heck, I don’t even know the answer for the US as a whole. However, predictions are Newson will lose; experts believe mayors don’t have that much leeway.

The real California gay marriage suit is working its way up the California court system, and is expected to reach the Supreme court in one or two years. Meanwhile, who knows, the California Legislature, or voters, may modify the law.

Recently, Jennifer Morse wrote an interesting article discussing the central purpose of marriage. I agree with her premise about the purpose of marriage; I believe this purpose guides us to legalize same sex marriage.

First, what are marriage, sex and love? According to Ms. Morse, marriage is a lifelong mutual gift of self. Spouses entrust their bodies completely to each other during the sexual act. Love is a selfless decision to benefit the other spouse, and children in the family. Motivated by love, parents are willing to give up some of their personal needs for their children. Finally, this gift of self requires a life long commitment which cannot be set aside because one has fallen in love with another.

Ms. Morse notes that most heterosexual couples do not share this view. Or if they share it, they act as though they do not share it. That may be true. Whether heterosexuals share this view, or take another, we permit them to marry.

Ms. Morse assumes most gay activists, like most heterosexual couples, do not share this view of marriage. Because they do not, we should not permit same sex marriage.

I support legalized gay marriage. Like many supporters of same sex marriage, I agree with Ms. Morse view of lifelong commitment to marriage. I read of many gays who dream of making just this type of the lifelong loving commitment, wishing to love and support their partner and children completely. Such partnerships are legally banned.

I think we should permit all who dream of a life long commitment to marriage, whether gay or straight, the chance to fulfill their dreams.

From 356gay.com

Need I say more?

Well, I can’t help myself. They won’t wear their robes. Maybe even the KKK realizes that people equate the KKK with intolerance?

Recently, Eve Tushnet at MD.com asked people to comment on the Abolition of marriage; many people have. Reading the responses, I was struck by something posted by Ryan Janus. It was this:

Evidently, Ryan believes that as long as he, his wife and God know they are married, that’s enough.

I have been married for 20 years. It does matter to me whether people believe my husband and I are married.

It mattered whether the bank believed us when we applied for a mortgage. It mattered whether our employers believed us when they paid to move spouses across country. It mattered when my husband requested personal leave to stay with me while I was hospitalized.

What people believed about my marriage would matter if:

• either of us were in an life threatening accident and we wanted the hospital to inform our next of kin.
• the IRS disputed our marital status during an audit.
• we wished to leave our assets tax free to each other when we died.
• either of us decided to violate our marriage vows and run off with someone else.

I could probably make this list nearly endless just including reasons why it matters whether people recognize my legal marriage. Some religions also take the point of view that it matters if people know you are share a sacramental bond. The Catholic Church has long thought it mattered whether other people know you are married; secret marriages are not permitted.

So, what do you think? Does it matter?

My felicitations to all, gay or straight, who marry on this historic day.

I blogged about the Liberty Council’s “Hail Mary Pass” case filed on behalf of the Catholic Action League here. So far, their last ditch efforts to block same sex marriages in Massachussetts on Monday have failed.

Galois provides details, accompanied by much a better persectives than I can supply.

Barry previously blogged about some members of the Roman Catholic Church proposing to deny holy communion to prochoice politicians. Today, the associated press reports that Bishop Sheridan of Colorado Springs proposes denying holy communion to individual Catholics who vote for politicians who support abortion rights, stem-cell research, euthenasia or same sex marriage.

Evidently, some Catholics requested Bishop Sheridan add the death penalty and support for the war in Iraq to his list, but he did not. I can’t help but ask myself, if Sheridan had added those two items, as a practical matter, could Catholics in Colorado Springs vote for anyone?

I guess we’ll see whether other Catholic Bishops follow Bishop Sheridan’s lead. We’ll also see how politicians and the laity respond.
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Recently, some have claimed that marriage should not extend to same sex couples because the potential for procreation, not the union of two into one, has always been the central core of marriage. (1)

I ask myself, can this true? If true, why is there no evidence to suggest the potential for procreation is the core of civil marriage? Can we find positive sources to learn what people thought to be the core of marriage? Although non-religious, I was raised Catholic, so I turn to popular Catholic texts, limiting my search to those that predate the SSM political controversy.

In 1929, Dietrich von Hildebrand wrote his very popular book “MARRIAGE: the mystery of faithful love”. Many will not have heard of Professor von Hildebrand, but his writings were held in quite high esteem by Pope Pius XII who called him “the 20th century Doctor of the Church.”

In “MARRIAGE” we find the chapter: “Love is the core of marriage” which begins:

Love and giving of each other fully are the core of marriage. As to children: they are the end, result or blessing of marriage. Von Hildenbrand also asks:

In his book he answers: marriage exists for its own sake, and not that of the children it may produce.

Many readers who have followed the argument about procreation and marriage know that the potential to procreate is not required for civil marriage; it is not a traditional ground for divorce. Some answer: this is not evidence to counter the premise that procreation is the core of marriage, it is simply too difficult to test for inability to procreate.

But is the difficulty to detect infertility the reason we permit post menopausal women or castrated men to marry? According to von Hildenbrand, it is not the reason.

Let us examine what he thought about infertile couples. He asks:

So, childless couples are not a pale imitations of procreative models; we do not accept them because it is too difficult to screen them out. They represent the true meaning of marriage by displaying marital fidelity and loyalty even when they are not blessed by children.

Like Lot of the Old Testament, the ideal exists in loyalty and fidelity even when God withholds children, his blessings.

Moving away from von Hildenbrand, what of Pope Pius XI? Were he alive today, he would surely oppose same sex marriages, as he opposed divorce and birth control; he held procreation in high esteem. However, I do not believe his opposition to SSM would be based based on the belief that procreation is chief reason or central purpose of marriage. His opposition SSM would be based on something else.

Let us seek Pope Pius XI’s opinion on the purpose of marriage in CASTI CONNUBII:

Reading these words and others in his Encyclical, there is no doubt that Pope Pius XI thought children important; they are a blessing to and benefit of marriage. Children should be welcomed and embraced by parents. Certainly marriage benefits children; a fact he notes.

Nevertheless, neither children nor procreation are the chief reason or purpose of marriage. The chief reason for marriage is the mutual molding of husband and wife. Matrimony is not to be looked on narrowly as existing solely to conceive and educate children.

The central core, purpose and meaning of marriage was the loving, loyal, faithful and committed bond between partners, not procreation or even the potential for procreation.

If the Catholic Church did not believe procreation was the central purpose of marriage, what of others? Might legislators, or the public at large have agreed with the teachings in these texts? Might this not be the reason marriage and divorce laws reflect the idea that marriage is a loving sexually faithful and supportive commitment between two people?
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There ought to be some rule against what I’m doing. Bloggers should write original lead articles but I can’t help myself. Everyone should read A Dystopian Definition by Jason at positiveliberty.com.

His blog begins:

marriage - n. - A sacred governmental union entered into by one man and one woman. Marriage is singular in that it is the last remaining act of God that still requires permission from the government.

I’d tell you how it ends… but I disapprove of that sort of thing.

Here is yet another volley in the court cases in Massachusetts: Groups Challenge Same-Sex Marriage in Mass.

It seems the Liberty Council and a few other groups have filed a case on behalf of Robert Largess of Boston, VP of Catholic Action League. The claim is the SJC of Mass. usurped executive and legislative powers when it ruled in Goodrich. Evidently, permitting the Massachusetts SJC to interpret the Massachusetts constitution violates the US constitution. In fairness, the claim seems to be the SJC amended, rather than interpreted, the Mass. constitution.

Given some past rhetoric, it seems ironic that some conservatives appear to think the activist federal courts do get to decide whether or not a state has violated the US constitution and impose their interpretation of the US constitution on states. Meanwhile, the same conservatives appear to believe states courts may not interpret their states’ constitution or impose their interpretation on their own state.

I have not yet found a link to the actual motion, any detailed comments on the legal premise or any other discussion. So, for all I know, the claim will have some internal consistency. Fox news does carry this quote:

We will all have to wait for more news and read what the federal court’s response.

While reading MD.com, I learned of an interesting dilemma reported in The San Jose Mercury News.

Terry Gruenwald just got married; should she mention her wedding to her 8th grade students? Well, like many newlyweds, she did. The students smiled. One asked if her husband knew she was a lesbian; another answered “She has a wife!”

Incidents like these have parents, teachers and administrators scrambling to develop guidelines for discussing gay marriage in schools. Rhetorical questions and their answers are provided by opponents of gay marriage:

Well, if Randy wants my answer, it’s this: I suspect that if students only hear about gay marriage when their favorite teacher has just returned from her honeymoon with her new bride, then the teachers involved such discussions will tend to support same sex marriage.

The only practical way to ensure that teachers who oppose gay marriage sometimes lead these discussions would be to introduce the issue into the curriculum. Otherwise, any discussions of marriage will only arise when students ask to hear about their teacher’s weddings, or spouses.

Yes, if the topic is discussed in school, it will sometimes happen that 8th graders like their lesbian teacher. Some won’t think it’s so awful that she married.

A man rapes a girl;
She discovers she’s pregnant.
In Texas, they wed.

I’m blogging under the heading of SSM. Readers will certainly wonder: Does pedophilia have anything to do with SSM? Oddly enough, it would seem that some justify banning SSM to prevent pedophilia.

Ordinarily we are not told how banning SSM prevents pedophilia. Now, thanks to a discussion at Galois, I think I may be beginning to identify the main elements of the argument which seems to be called “the procreative model”.

Currently, I believe the premise, evidence and conclusions of the procreative model, with regard to pedophilia, are as follows:

Premise: The only logical way to regulate sex is to determine whether the sex is procreative or not.

Evidence:
a) We don’t let gays marry because they can’t impregnate each other unintentionally.
b) We don’t let kids have sex because they can’t impregnate each other unintentionally.
c) We don’t let adults have sex with kids because kids can’t get pregnant unintentionally.

Conclusion: If we let gays who can’t impregnate each other marry, we would be required to permit adults and to have sex with kids!

Of course, it isn’t my model. I may be misrepresenting it. Other can read the extensive discussion at Galois and suggest alternatives consistent with the posted comments.

My haiku?

I think it captures an interesting feature of the procreative model. Those who read the posts appearing on April 27 and April 28, will learn that, just maybe, it’s not so bad if a pedophile impregnates a 14 year old girl. Possibly, if she is a wise, traditional, responsible girl, she will marry the father of her child.

To read the entire surreal discussion,visit Galois The pedophilia discussion heats up with on April 18, 2004. (Note that the time stamps appear at the end of the posts).

David Blankenhorn is upset by and article by Diana Wichtel of the New Zealand Herald. But what, exactly upsets him?

We may need to use adjectives!

Healthy marriage, unhealthy marriage, civil vs. religious marriage, traditional marriage, heterosexual marriage, same sex marriage. Imagine, he forgot levirate, eternal, inter-religious, sacramental, mixed and common law marriages. What of the ever popular marriage of convenience?

Why, he asks, don’t we just stick to plain old, adjective free marriage like we’ve have for the last 4000 years?

Having grown up Roman Catholic, my favorite quote is this:

According to the Roman Catholic Church, those who receive the sacrament of marriage, but later obtain a civil divorce, are bound by a “religious marriage” even though the state has dissolved their “civil marriage”.

It has been this way for more than 5 minutes.

Lucia

April 14

1866: (Birthday) Anne Mansfield Sullivan, educator best known as the teacher of Helen Keller, born in Feeding Hills, Massachusetts.

1910: (A First) Dr. Elinor McGrath graduated from the Chicago Veterinary College to become the first woman veterinarian in the United States.

1975: Madine Steele of Tallahassee was suspended from her teaching position for participating in ERA activities (marching in a parade).

April 13

1854: (Birthday) Lucy Craft Laney born in Macon, Georgia. Laney, a free black woman, opened what became the Haines Normal and Industrial Institute in Augusta, Georgia, that grew from five students in a basement to a four-acre campus of almost 1,000 students.

1919: (Birthday) Madalyn Murray O’Hair, atheist lawyer who won an American citizen’s rights to be free FROM religion as well as free to be for the religion of one’s choice in Murry v. Curlett which outlawed prayer in public schools (1963) after her son Bill had objected to being forced to participate in school prayers. The day after the case went to the U.S. Supreme Court, Madolyn was dismissed from her welfare department job as incompetent. Since 1975, she has been the subject of a never-ending urban legend claiming that she is ” is trying to get religious broadcasting banned from American airwaves.” Recent versions of this urban legend claim that her efforts would ban shows like Touched by an Angel from the airwaves.

1933: (A First) Ruth Bryan Owen is appointed minister to Denmark by President Franklin Roosevelt, becoming the first woman to lead a U.S. diplomatic mission.

April 11

1865: (Birthday) Mary Ovington, cofounder of the National Association for the Advancement of Colored People (NAACP), born in Brooklyn, New York.

1881: Spelman Seminary (later Spelman College) for Black women opens in Atlanta, Georgia.

1953: Oveta Culp Hobby is sworn in as Secretary of Health, Education, and Welfare as the second woman to ever hold a U.S. President’s cabinet post.

April 10

1862: the New York State legislature (while people’s attention was centered on the Civil War) took away a mother’s right of equal guardianship over her children and the control of minor children’s person and property on the husband’s death that had been granted for the first time in history a few years before. Elizabeth Cady Stanton, who had campaigned for the reform, succeeded in having it reinstated soon afterwards.

1882: (Birthday) Frances Perkins, first woman appointed to a cabinet position (Secretary of Labor), born in Boston, Massachussetts.

1930: (Birthday) Dolores Huerta, Chicana cofounder of the United Farm Workers Union, born in Dawson, New Mexico.

1960: (A First) Women are ordained as pastors in Sweden’s Evangelical Lutheran Church for the first time in the Church’s history.

1970: (A First) New York State legislature passes into law unrestricted abortion rights during the first six months of pregnancy.