Exceptions prove the fallacy of majoritarianism

Where to begin today? New York’s Court of Appeals ruled that the state can continue discriminating against same-sex couples. Apparently, a heterosexual oopsy with birth control proves that gays and lesbians don’t need the same rights.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

My interpretation is a slight simplification of the majority’s opinion, but only slight. Because a heterosexual couple can create¹ life because they forget to use a condom, they need marriage rights to help those potential offspring. Even if the couple isn’t married when the child is conceived. Or seeks to stay married. Or intends to ever get married. Nope, doesn’t matter. This decision is crap². Remind me again who is seeking special rights in this debate?

Meanwhile, the Georgia Supreme Court upheld its citizenry-supported bigotry today. I don’t have anything to say about the decision itself. Instead, I’d like to highlight the patronizing majoritarianism of Georgia’s governor:

“We don’t do a referendum very often,” Perdue said. “But when we do a referendum such as a Constitutional amendment, I think we need be very respectful of the people’s voice and listen to that. I think the Supreme Court has done that and I’m very grateful for their action and their affirmation of the people’s voice in overturning the trial court’s opinion.”

The governor also said that he hopes gay Georgians do not feel marginalized by the decision. He said they are free to work and live their lives here – they simply can not marry in the state of Georgia.

I’d like to find a direct quote supporting that second paragraph. If his words verify that summary, does that come with a pat on the head? I can only hope that every gay Georgian says a big “Fuck you” on his or her way out of the state.

For excellent analysis of this decision, read this thread at A Stitch in Haste.

¹ Excuse me. Since we’re now going with majoritarianism instead of science, our bigotry must conclude that a man and a woman cannot create life. Only the monotheistic God our nation’s founders included in our Constitution’s First Amendment is capable of such divine action. And traditional marriage is his conduit.

² Read Chief Judge Kaye’s dissent. It’s not possible for someone who understands our principles defining individual rights could walk away from reading this dissent and still think the supposed majority has any right to deny a fundamental right to anyone in America.

“It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation,” she wrote. “The court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Majoritarianism can’t accept that. The New York Court of Appeals proved today that it’s an activist court.

Digital Lefts Management in France

Two things interest me in this story explaining Apple’s possible response to French legislation requiring that songs purchased online be playable on any mp3 player. Personally, I think the choice is simple: Apple should close shop in France. When citizens in France are still walking around with the latest iPod every time Apple releases a new product, the government will have its answer on which the French consumer values more. Capitulation to the French central planners would only encourage other central planners in Europe. I suspect Apple pulling out of France would lead to the same nonsense surrounding region-encoded DVD players, preventing online purchases of non-compliant players. Permit central planners to invade on the small things and they’ll control the big things, too. So Apple should leave France.

More intriguing is this:

Members of the activist group Free Software Foundation have staged protests this summer outside of Apple stores across the country, with members dressed in colorful toxic waste suits and carrying signs that rate digital rights management software such as Apple’s as “Defective by Design,” the name of the group’s campaign.

Henri Poole, a Free Software Foundation board member, said that such software restrictions infringe on consumer rights and are designed to protect “antiquated business models.”

“We purchase [songs] and we think we have the same rights we had two years ago, but those rights are being eroded and the [digital rights management] rules can even be changed after you’ve purchased,” he said.

I agree that excessive DRM is indeed “defective by design.” However, as I’ve said before, I’ve come to accept that with the iPod and iTunes. I knew going into the deal exactly what Apple expects, what it will license to me. As such, I won’t argue that my rights are being eroded. Perhaps they are, but if I value something else more (convenience, functionality), that’s my choice. I don’t need a central planner to tell me how I’m supposed to enjoy my iPod. I want it to have Sirius functionality, but I’m not going to ask Congress to require it.

Of course, economically, I’m still discussing the French, so I leave open the possibility that French consumers believe it’s better to have nothing than something if that something is “exploitative”. If so, c’est la vie. I’m not the boss of them.

Have you paid your buck-oh-five today?

Being Independence Day, I want to put thoughts together about our liberty and what’s most important to remember. Had I sat down to write something myself, I hope it would’ve turned out like Timothy’s post at The One-Handed Economist. Every word but one is true, and that one word is only a quibble of hyperbole.

It has come to pass that we obtain freedom too cheaply, and thus we do not value it. Unlike generations before us, unlike our forefathers, and unlike many in much of the world today, we’re born with liberty and face no great struggle in keeping most of it. Or at least keeping enough to go about our daily lives without too much hassle. And parts get neglected, or we don’t feel too bad about giving up things at the margin: flashing an ID here, filling out a form there, being searched without cause this other place…. And each transgression taken individually perhaps isn’t that much, but taken in sum the results are disastrous. To simply enter into an agreement with a private party to hold our money, we must show two government pieces of identification. To move from one state to another by air, we must show ID and walk barefooted through the airport. It’s come to the point where we are not even secure in our homes. Liberty dies slowly while nobody is watching.

I’d change “nobody” to “everybody,” but yeah, what he said.