There Are None So Blind. . . .

I ran across references to this OpEd by Jonathan Rauch a couple of days ago, but hadn't actually read it until just now.

It takes all of three paragraphs for Rauch to dig himself a hole that there's no escape from:

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

No, Jonathan, she's not right. A civil rights claim, if found to be valid, always trumps majority preferences. The Bill of Rights was not included in the Constitution to make the majority comfortable, which is the thrust of both Kagan's statement and Rauch's seconding of it. They were included to set the limits on the government's power to infringe on the lives of citizens, which necessary includes limits on the power of the majority to likewise infringe on those rights.

And on Perry vs. Schwarzenegger, he has this to say:

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

This is the sort of sophistry that gives me headaches. The question, as I've noted before, is not whether same-sex marriage is "marriage" as understood by the population at large. The question is simply, given that marriage has long been recognized by the courts as a fundamental right, whether the government has the power to limit it to one group at the expense of another in the absence of a rational reason (under which I include "compelling state interest"). So far no one has been able to provide a rational reason (and I'm including those cases in which the constitutionality of various state DOMAs has been upheld -- I've read those decisions, and "rational" is not part of the mix). And I defy anyone to show me a constitutional provision that allows the majority to determine the rights of any minority by simple majority vote.

Quite honestly, I can't consider Rauch's piece as anything but drivel. Beginning from unexamined assumptions, he proceeds through shoddy arguments to a conclusion that is stunning in its wrongness. If this is indeed Elena Kagan's position on civil rights, I hope the Senate kills her nomination.