Mark Creech of the Christian Action League of North Carolina is none too happy with the state judge who struck down that state's cohabitation law last week. His reasoning is, predictably, quite weak. For example:
Judge Alford's decision was judicial activism at its best. The state's lawyers rightly argued Hobbs didn't have standing in the case because she never had even been charged with a crime. Moreover, legal experts still debate the meaning of the Lawrence v. Texas case and how it applies to state law.
Two arguments he thinks proves the judge was "activist", both of them just plain silly. The state's lawyers may have argued that she didn't have standing, but that doesn't mean their argument was correct. This was a civil rights lawsuit, which means she only has to show that her rights were violated; clearly, arrest is not the only means by which the government can violate her rights. The second argument is even dumber. Legal experts still debate the meaning of every single ruling ever handed down by every court that ever handed down a ruling. How on earth is that an argument for "judicial activism"? By his reasoning (and that term is used very loosely here), no judge could ever rule in any case because every possible precedent he could cite would still be up for debate.
He also makes the standard argument we hear from the religious right constantly that all law is an imposition of morality:
Judge Alford's ruling is also significant as a reflection of the state's departure from what traditionally has been its moral compass -- the Judeo-Christian ethic. Of course, some would argue it's never right to impose one's morality on others by codifying it into law. Yet such is the very purpose of law. No public policy or legislation operates in a moral vacuum. The law has always been the means by which cultures state their values and what it is they want to protect.
But this argument misses the point completely. He's basically beating up a straw man. No serious person would argue that it's never right to impose one's morality on others through the law. He is right that a prohibition against murder is also a moral imposition. But that doesn't mean that all attempts at moral imposition are therefore legitimate. Indeed, our constitution quite explicitly forbids the imposition of morality where it violates the rights of the individual. If one attempted to impose their morality that forbid blasphemy or heresy through the law, such a law would obviously be unconstitutional because of the first amendment. So the issue is not whether the law can impose a moral rule, it's when such impositions are constitutional and when they are not. And under the Lawrence decision, this law pretty clearly is not. The judge, who is bound to follow such precedent, applied the law correctly. That makes him the opposite of a judicial activist.
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How the heck can anyone still think cohabitation is dangerous to society. I cohabitate; many of my friends do as well. Just because one isn't married doesn't mean there is no commitment. Sheesh. This is making me angry. What kind of country do these people think we live in?
What kind of country do these people think we live in?
Sodom and Gamorrah.
Mike-
No one says there is no committment, but lets be honest here, those who cohabit are virtually never committed for a lifetime as are those who marry. It's more a day to day committment.
There is a big different between cohabitating and marriage in the degree of committment. Although I will admit it may have exceptions but I just haven't seen it in my time on the planet.
GH said:
Well, I'll agree with you that those who cohabit tend not to be committed for a lifetime - most would get married at that point. Of course there are couples who stay together for forty years and never get married, but I'm perfectly willing to recognize that they're the exception rather than the rule.
But I have to take issue a bit with "day to day" as the alternative. I mean, I think those with only a day to day commitment probably don't go to the trouble of moving in together - especially since moving out certainly takes more than a day. I cohabit, and I consider it roughly a year-to-year commitment; that's how long our lease is, after all, and since we're young and still in school and trying to get into new programs and new fellowships and things like that, it's hard for us to think ahead much further than that. I'm interested to hear what Mike thinks though.
What about people who cohabit before they get married? This law isn't about the commitment of cohabitees - it's just a proxy for premarital sex.
Yeah, because once you're married, that's it; you're in for life.
Sure as shootin'! That's because it don't take no more'n the shake of a possum's tail to find a new place, pack up all your stuff, and just move on. Why, if I didn't have this ring around my finger I'd be tempted to just walk away from my boring old house, what with all its boring new paint and that stupid insulation I put in and all that lame-ass work I put into the yard. Not to mention who wants to come home to the same old girlfriend day after day? But, since she's a wife now, I guess I'm stuck.
As it happens, the cohabitation law was not originally intended as punishment, but reform. North Carolina did away with Common Law marriage (in 1804 or 05, as I recall), and the purpose of the cohabitation law was to encourage formal marriage. This was necessary because illegitamate children could not inherit. Obviously, the law has outlived its usefulness.
Another point to keep in mind is that the NC Supreme Court is extremely jealous when it comes to the power of making Constitutional rulings. If this case gets appealed, Judge Alford is going to get a world-class smackdown, as the Court of Appeals did a few years back when it decided to change to the Comparative negligence standard (just because every other jurisdiction in the known universe has adopted caomparative is not sufficient reason for NC to join the 20th Century).
That is the idea correct.
C'mon. This is just silly. It's not that you got married and became stuck. People get married becasue they feel they want to spend the rest of their lives together and form a family unit that the society(government) endorses. Why one would argue about this is a little odd. The vast majority of people who cohabit simply don't have that level of committment. Like my friend, he moved his GF in with him and they just wanted to see how it goes. He isn't sure he wants to spend his life with her and to him marriage IS a lifetime committment barring some unforeseen event.
If I was that committed to a girl I'd get married which is why many who cohabit eventually do. If they thought of it in the smae manner why would they ever marry at all?
Oh, I dunno, GH. Perhaps it's the thousand or so legal benefits of marriage?
Exactly. But in the real world most folks are not thinking about those before making the leap. It's different for 99.9% of people. Maybe 100.
Ed:
As I noted in an earlier comment to your earlier post on this subject, the injury sustained by the plaintiff was NOT as a result of the application of the law. Isn't that what's required to have standing?
(Not, of course, that a ruling in lieu of a lack of standing makes the judge an activist, merely for the sake of clarity.)
I'll be cohabiting pretty soon. Maybe even cohabiting for life. Unless I end up in the 2% of the USA that supports gay marriage, I don't have much of a choice. My boyfriend and I like the Western US, and we'd like to get married some day.
Here's hoping that I didn't get born too early for that to come true.
As far as commitment goes, things tend to even out. Cohabitating is far more of a commitment than not cohabitating. And marriage, being that 1/2 of all new marriages will end in divorce, is statisticly only a little better than cohabitating. Of course, statistics only tell half the story. I don't know what I'm getting at...
But my main interest in this is that it's silly and backwards to keep laws on the books that so obviously restrict basic freedoms.