Judicial Review

I read this article from the Center for Arizona Policy's legal counsel on the subject of Judicial Review. It's striking not for what it includes, which is actually pretty interesting, but for what it omits.

In the famous case of Marbury v. Madison, Chief Justice John Marshall declared that constitutional review is the exclusive role of the judiciary. Whether or not Marshall was right to assume that judges are the only officials the framers intended to have the authority of constitutional review, he was at least right that the power judges do have comes from the written Constitution.

In the Federalist Papers, Alexander Hamilton recognized that the power of judicial review ultimately comes from the people. When a statute is found to be in conflict with the Constitution, he explained, “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

The views of Marshall and Hamilton are important because they show that judicial review exists because of the people—because of the power of citizens of the United States to frame their government by drafting, ratifying, and amending their Constitution. This is not the case in other systems of government. Part of the English legal tradition, for example, holds that judicial review is not grounded in the text of a written constitution.

The emphasis here is on the power of the citizens, which is frequently cited by conservatives in their cry against so-called "judicial activism." While this is all well and good, they're forgetting an important piece of Judicial Review, as written by James Madison in Federalist Paper #10.

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.

The Judicial Branch is supposed to be one of the checks and balances that keep an "interested and overbearing majority" from violating the rights of the minority. That's how the judicial branch got us such things as desegregation. This isn't "legislating from the bench," as many conservatives claim; it's a balance to the legislative process, where the majority can run over the rights of the minority.

When someone can give me a clear argument as to why keeping marriage rights and responsibilities from same-sex couples is more important to the common good than to the individual rights of those couples, then I'll consider that maybe this issue shouldn't be decided by the judiciary. Although as long as I've been interested in this issue, you'd think if there were a clear argument, I'd have heard it by now. The closest anyone has come is "Public policy affects everyone." Yeah, that's a clear and compelling reason to stamp on the rights of others.

On the upside, I'm pleased to see that someone from CAP is actually using the term "judicial review" and not the nonsensical "activist judges."

And the survery says...

After a week vacation away from my computer, I returned home to find an interesting article in my inbox. According to Ellen C. Perrin, MD, professor of pediatrics at Tufts University School of Medicine in Boston:

The vast consensus of all the studies shows that children of same-sex parents do as well as children whose parents are heterosexual in every way.

Interesting. Of course, the American Medical Association has been decried by conservatives for years for being "biased," but I really wonder whether the so-called bias really predated any studies or physicians' personal experience with children of same-sex parents. Isn't it possible that doctors are "biased" in favor of same-sex couples because the evidence indicates that they can raise kids just as well as straight parents?

Given the emotional nature of the issue and for both sides to claim bias to any study that doesn't yield the results it's looking for, I especially noted the last part of the article:

While further study should be done, this is important for pediatricians to know so they can learn more about variations in families and give appropriate advice in optimizing the child's development, Perrin says.

Carol Berkowitz, MD, former president of AAP, says this analysis is important in that it combines evidence-based studies.

"This subject evokes a lot of emotions," she says. "Some of the studies on this subject in the past have been weighted and biased, based on nothing more than the researcher's views."

Evidence-based studies are important in helping pediatricians in their practices and creating policy for the future, she says.

I'm not a social scientist and I haven't read the studies in question, but it does seem like those involved are taking a careful look at these studies to make sure their findings are based on evidence and not bias.

I hope more studies are done. In the meantime, in the interest of children who are already in familes headed by same-sex couples, we need to make sure that their parents get all the help and support that their opposite-sex counterparts get. Raising kids is hard enough without laws that define family in a way that shuts your family out.

Talking about the tough issues

Kudos to the Bishop of the United Methodist Desert Southwest Conference, Minerva Carcaño, for hosting a "Christian Confererencing" discussion in Tucson last night to talk about two tough issues, migration and GLBT issues. It was a roundtable discussion, very respectful, and people from all sides of both issues got to speak without interruption. A big thanks to the Bishop for getting dialogue started.

I confess I haven't given much thought to migration issues and there actually wasn't a lot of disagreement about that. Mostly a lot of people searching for answers on how to help people and keep them from dying in the desert with no one really knowing what to do.

The discussion on GLBT issues was more divided. I found it interesting that almost to a person, those who spoke from the position that same-sex relationships are sinful spoke of scripture, while those who spoke from the position that same-sex relationships are not inherently sinful spoke of experience.

First I'd like to say that in my opinion, talking about whether or not this is a sin is putting the cart before the horse. In John 8, Jesus saves an adulteress from being stoned to death then tells her to go and sin no more. Note that he waits until she is safe and then only when she is alone does he tell her to go and sin no more. He doesn't make a public speech about how, yes, she's a sinner, but... He is more concerned about her safety first. We're not at that place yet. When our GLBT brothers and sisters are safe and aren't being persecuted anymore, then we can have the discussion about sin (or not sin). But not yet.

That said, I'd like to comment on the scripture vs. experience dichotomy I witnessed last night. In the United Methodist Church, we're taught that when we address theological concerns, we should apply the Wesleyan Quadrilateral, meaning we should look for answers in four areas: Scripture, Tradition (Church history), Reason, and Experience. It strikes me as particularly un-Wesleyan to go back to scripture alone without looking at the other three. What Tradition says about GLBT issues is pretty clear and doesn't come down in favor of same-sex relationships. Reason... that's thornier. That can depend largely on what place you start from: the infallibility of scripture or that it is God-inspired but written by fallible humans.

When it comes to scripture vs. experience, to me, staying with a literal reading of scripture over personal experience with the Living God feels like we're limiting God to the confines of words that are centuries old. Paul says we see through a mirror dimly, and I don't think that was any less true for the Bible writers than it is for us today. The idea that God would speak so clearly and directly in the past but stop at some point and expect us to get it without such clear, inerrant guiding directly from God (as opposed to through writings that in our present English form have passed through hundreds of human hands from the writers to the editors to those who decided what was canon and what wasn't to the translators) doesn't make sense to me. God is living and dynamic and cannot be contained in scripture. Scripture points to God but cannot be God.

But let's look at scripture. It is interesting to me that in the entire Bible, (which reading two chapters a day takes me two years to complete a cycle of reading the Old Testament once and the New Testament twice) there are only seven places that talk about this issue. Seven. Out of thousands. They are: Genesis 18-19, Leviticus 18:22 and 20:13, Judges 19, Romans 1:26-27, 1 Corinthians 6:9, 1 Timothy 1:9, and Jude 7.

The Genesis and Judges verses are two similar stories. They deal with violence and rape and do not address the issue of loving relationships at all. In fact, the hero of the Genesis story, Lot, is saved from the destruction of Sodom because he protects his male visitors (angels, but Lot doesn't know that) from being raped. He does this by throwing his daughters out to the rapists instead. And for this he is commended as righteous. Not a standard many Christian men I know would adhere to today. I'm pretty thankful that isn't a standard for righteousness my father followed.

The Leviticus verses are the Law. Anyone who wears cotton blends or thinks it's okay for a woman to have sex when she's menstruating is disobeying the exact same section of the law as the verses prohibiting men from having sex with other men. The penalty for these "sins:" death. (Note: there is nothing in the Law prohibiting women from having sex with other women.)

Of the New Testament verses, 1 Corinthians and 1 Timothy have translation issues. The truth is, no one knows what the words we see in English Bibles translated as "homosexual" really mean. Jude refers back to the Sodom story in Genesis, which again, is not about loving same-sex relationships but about violence.

So, if you understand that two of the OT stories are about violence, not same-sex relationships and that the OT Law is not adhered to by most (if any) Christians, and that translation issues make it impossible to really understand what three out of four of the NT verses are saying, that leaves us with one place in scripture (Romans 1:26-27) that is worth discussing in regards to loving same-sex relationships. One. Out of the entire Bible.

There is another verse I'd like to point to. It isn't about same-sex relationships, but it is from Jesus. Matthew 7:16-20:

You will know them by their fruits. Are grapes gathered from thorns, or figs from thistles? In the same way, every good tree bears good fruit, but the bad tree bears bad fruit. A good tree cannot bear bad fruit, nor can a bad tree bear good fruit. Every tree that does not bear good fruit is cut down and thrown into the fire. Thus you will know them by their fruits.

That's where experience comes in. I challenge theological conservatives to get to know GLBT people. Get to know GLBT Christians. I know many of them, both clergy and lay, who bear excellent fruit. Some of them have walks with Christ that I admire as much closer than my own. If the fruit is good, how can the tree be bad?

I've studied the scripture. A lot. And a literal view of it just doesn't hold up with my experience. It doesn't fit with the measuring stick Jesus told us to use.

I hope that in the United Methodist Church we will keep discussing this issue. I hope that as Christians we will all be a part of making people safe so that we can get to the place where we can actually have a conversation about sin. Thank you, Bishop Carcaño.

What the...?

Torture is bad, right? It's a no-brainer. Our country should not be in the torture business. Full stop.

That's why I'm having a really hard time wrapping my head around this.

The Senate delivered a stern rebuke to the Bush administration Wednesday night, adding language banning U.S. torture of military prisoners to a $440 billion military spending bill in defiance of a White House threat to veto the whole bill if the anti-torture language was attached.

Okay, let me get this straight. Bush's advisors will recommend he veto a military spending bill... during wartime... just because there's language attached that bans torture?

Their measure would ban the use of "cruel, inhuman or degrading" treatment of any prisoner in the hands of the United States. It's a response to the revelations of torture by U.S. personnel of Iraqi detainees at Abu Ghraib prison in Baghdad, which roused worldwide disgust.

Yeah, I can see where banning cruel, inhuman and degrading treatment of prisoners is a bad thing. God forbid we actually be better than the terrorists.

Last week the White House sent the Senate a "statement of administration policy" that declared strong opposition to the anti-torture language on the grounds that it would tie the president's hands in the war on terrorism. The statement said that if the anti-torture terms remained in the bill's final version, "the president's senior advisers would recommend that he veto the bill."

Oh, okay. We wouldn't want to tie the president's hands with any of that pesky moral high ground stuff. Two wrongs make a right, after all.

That is what Jesus said, isn't it?