Tuesday, October 15, 2013

Matthew Franck remarkably claims that it is judges who are irrational over same-sex marriage

Matthew J. Franck
Matthew J. Franck is a Defender of the Faith™. According to the Witherspoon Institute (which is associated with Opus Dei), he is their “Director of the William E. and Carol G. Simon Center on Religion and the Constitution.” On Witherspoon's pretentious blog Mr. Franck writes;  Same-Sex Marriage Makes Liberal Judges Irrational. It is a tedious thesis but Franck's claim that marriage equality takes a toll on the mental health of judges is a source of sardonic amusement.

So what is it that saddens Mr. Franck today?
A New Jersey judge’s contorted and nonsensical decision that the state is responsible for the federal government’s failure to recognize same-sex marriage highlights the irrationality that permeates the campaign for “marriage equality.”
That's the sub-heading and it is factually incorrect. The problem is that the federal government does not recognize civil unions. Thus New Jersey's civil-unioned couples do not have the rights that they would have were they married. Things go downhill for Mr. Franck from there:
Begin with the steadfast refusal of same-sex marriage advocates even to define what “marriage” is now supposed to mean. As the authors of What Is Marriage? have tirelessly argued, marriage has had a consistent core meaning, essentially the same rationally defensible one, in every human civilization. Those who reject that meaning haven’t offered an intellectually coherent new meaning for the word. Is marriage now simply an affective/sentimental/romantic/sexual relationship of two persons who wish to share their lives together?
Mr. Franck lives in a strange world. He wants us to believe that marriage means an arrangement whereby two participants crank out children (there is no recreational sex in Franck's world). Judges are concerned with civil marriage and family law. The rites of the Roman Catholic Church are constitutionally irrelevant. Marriage creates a marital estate. Consistent with that, the most immediate effects of the Court's ruling in US v Windsor (DOMA) is how married gay couples pay taxes and how their federally insured pension plans should be treated. If there are children then the marital estate cares for them in the event that the marriage dissolves or one or both spouses die.

For example, if an unmarried person has a defined benefit pension and dies, the pension dies with him or her. If he or she is married then the pension passes to his or her spouse and provides additional support for their children, if there are any. Why should committed gay couples not have the opportunity to be treated similarly. That is the question before the courts. It has nothing to do with “daddy's sperm fertilizes mommy's egg.” Things only continue to get worse:
In 2010, federal district judge Vaughn Walker presided over a kangaroo court with a predetermined outcome on the fate of Proposition 8, a California constitutional amendment passed by the people of the state to protect conjugal marriage. Among his many depredations on the integrity of legal reasoning, Walker argued that because marriage has “evolved” in modern times into an institution that treats the sexes more equally, it is not now a “gendered institution” in which the sexual complementarity of the partners can be said to matter any longer. The obviousness of the fallacy was shocking, but the assault on reason was no longer surprising.
Judge Walker was considered a strict conservative and had represented the US Olympic Committee in the lawsuit that resulted in the prohibition of the use of the name "Gay Olympics." Both sides knew that Walker is gay. The notion that there was something illegitimate about the Proposition 8 trial at the district court is absurd and offensive

Franck is projecting. Were Mr. Franck a judge and a case came before him regarding reproductive rights he would rule in accordance with the teachings of the Catholic Church, regardless of the law and regardless of the evidence. He assumes that Judge Walker could not judge the case fairly. I will remind Mr. Frank that Walker was upheld on appeal. In fact, Walker questioned the Article 3 standing of the defendants long before the case came before the Supreme Court. Moreover, it was Walker, himself, who stayed his own decision, pending appeal. Franck also characterizes one of Walker's findings inaccurately. Franck did some selective observation in the above analysis. Here is that portion of the ruling in full.
The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
What Walker is saying is that the defendants failed to support their case with evidence. Franck's assertion that this is an "assault on reason" is ridiculous. Mr. Franck does not fill in the blanks with the historical evidence that was lacking in Perry v Schwarzenegger. Franck is content to claim that Walker was dishonest, biased and wrong. The supporters of Proposition 8 made a claim about "procreative marriage" that they could not prove.

Wrong, wrong, wrong!

In painful verbosity, Franck goes on and on. Every Judge is wrong. Walker was wrong, the 9th Circuit Court of Appeals was wrong, the US Supreme Court was wrong, presumably, the judges in the several cases leading up to Windsor were wrong, the California Supreme Court was wrong, the Department of Defense is wrong, the Obama administration is wrong, the Internal Revenue service is wrong, the Department of Health and Human Services is wrong (Franck does not understand their ruling) and “now a rogue state judge has taken the next step, making a complete hash of the logic of Windsor” (she is wrong). So here goes the "logic."
Judge Mary Jacobson of the Superior Court in Mercer County ruled on September 27 that the constitution of New Jersey compels the state to permit same-sex couples to marry, thanks to the Windsor precedent. Since Windsor does not compel such a conclusion, and since the state supreme court held seven years ago that the principles of the state constitution were satisfied by civil unions with all the benefits of marital status but without the label “marriage,” the judge had to engage in some legal somersaults.

Judge Jacobson’s creative destruction of logic achieved a non sequitur par excellence. She held that because New Jersey’s same-sex couples in civil unions are treated by the state in every way as married, but, since the state does not call them married, the federal government does not treat them as having that status, therefore the state is violating its own constitution if it does not call them married.
Note that, again, Mr. Franck is suggesting bias. Apparently any judge who rules in a manner that is inconsistent with Franck's religious biases and projection must be a rogue activist. Jacobson's opinion is very lengthy, taking into account all of the amici and the procedural history. Ultimately the purpose of civil unions was to provide all of the benefits of marriage without calling it marriage. Post Windsor that is no longer the case as gay couples are denied all of the benefits of marriage now available to them if they were married. People who are similarly situated are being treated differently under the law. There is no bias and no "destruction of logic." It is simply a decision that Mr. Franck does not like.

Franck's contention is that the Windsor decision leaves the decision on marriage up to the states and that Judge Jacobson is reversing things by determining that Windsor requires New Jersey to recognize same-sex marriage. That would be true were it not for the fact that New Jersey provides for civil unions which represent the state's means of recognizing same-sex unions. Civil unions are now legally flawed because the federal government does not recognize them while recognizing same-sex marriages. Indeed, I would contend that civil unions are a means of recognizing religion by not conferring marriage on otherwise committed gay couples. This is not some legal aberration. Nor did Judge Jacobson have any agenda other than applying the law to the best of her ability.

After some more bellicosity, Mr. Franck (mercifully) concludes:
Judge Jacobson has now denied a stay of her ruling while it is appealed, saying New Jersey will begin issuing marriage licenses to same-sex couples on October 21. Her ruling deserves a quick stay from the New Jersey Supreme Court and then a decisive reversal on appeal. Indeed, that reversal should be accompanied with a rebuke for her flagrant abuse of judicial authority. But in the new world that the movement for same-sex marriage is ushering in, one can never be sure that facts will remain facts, principles will still be recognized as principles, and logic itself will continue to compute.
Franck fails to appreciate that this is not done in a vacuum. Both sides have been well represented and ample opportunity has been provided for amicus briefs which Judge Jacobson clearly took into consideration in a 55 page decision. If Judge Jacobson is reversed it will be based on sound legal principles. There will be no rebuke. If Jacobson is sustained (as I expect) it will also be based on the law. What won't be considered are the teachings of the Catholic Church. The Establishment Clause is a rather pesky thing but it does exist and it is enforced from time to time. While Mr. Franck makes some suggestion about a corruption of fact, I will remind him that this was a summary judgment meaning that facts were not in dispute — only issues of law.
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