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Monday, February 04, 2013

Westboro Baptist and marriage equality

Jason Mazzone at Balkinization links to an amicus brief filed by Westboro Baptist Church (of "God hates [everyone but us]" and Snyder v. Phelps fame) in the DOMA case--which, he points out, does not actually cite to any provision of the Constitution. And I would add that the Table of Authorities cites fewer cases (8) than Bible verses (35). I've already said that I find the primary merits argument hard to believe or take seriously. Is Westboro's argument really all that much worse?

The summary of the argument is after the jump.

The government has responsibility to protect the health, safety and welfare of the people. Of all the harms that a society can face, none are worse than incurring the wrath of God by a blatant policy of defiance of and disobedience to His plain standard. This nation was founded on Bible principles, and the laws of America arose from Scriptural precepts. America has erred in making fornication, adultery, divorce, remarriage, abortion-for-convenience-on-demand and sodomy, standard fare in this country. It is time to reverse that course, and for this Court to squarely hold that the governments of America have a compelling interest in upholding traditional opposite-sex marriage, and further in protecting the people from
the devastating effects of same-sex marriage. Separation of church and state, while prohibiting government from interfering in issues of doctrine or church governance, does not prohibit the government from promulgating laws that institute the standards of God on moral issues. Just as the government is empowered to outlaw murder, the government is empowered to outlaw same-sex marriage. This nation that God blessed and built into a super power is going to perish if this Court and the governments of this land bless same-sex marriage through government license. WBC pleads for reversal.

Posted by Howard Wasserman on February 4, 2013 at 04:16 PM in Constitutional thoughts, Law and Politics | Permalink

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I had a good laugh with that one when I first saw it. But, frankly, the form of the argument isn't that crazy.

(1) [X] is a bad result.
(2) Historical examples show that [Choice Y] will lead to [X]
(3) Therefore don't make [Choice Y].

And I can also certainly see the analogy to the primary merits argument. Moral harms or other harms that don't fit the collective ontology of the mean American lawyer (e.g. the causality between our action and God's wrath) are considered irrational under our common myth.

I don't believe their argument is irrational per se (we have similar fetishes w/r/t dignitary harms on the other side of the brief), but certainly they are in the minority.

Posted by: AndyK | Feb 4, 2013 4:44:41 PM

Why on earth did the parties concept to the WBC filing a brief?

Posted by: brad | Feb 4, 2013 5:13:04 PM

concept -> consent

Posted by: brad | Feb 4, 2013 5:13:35 PM

I can see why one side consented. The BLAG side? Let's be honest -- in respect to those who actually care, the brief sounds sane to some of them. The whole meaning of marriage stuff tends to translate at some point with many of them to God's will

The brief has a reference to the 1A.

Posted by: Joe | Feb 4, 2013 8:10:43 PM

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