Before there was bigotry, there was — bigotry.

And before there was blogging, there was — blogging:

In the meantime, Diamond and I wish all of you a Merry Christmas, a wonderful holiday season, and a prosperous new year.

The "Baker v. Nelson" that Senator Chuck Grassley referred to, twice over two days, during the Sotomayor confirmation hearings was not the Minnesota decision itself: 291 Minn. 310, 191 N.W.2d 185 (1971). It was the subsequent one-paragraph dismissal of a pending federal appeal by the Supreme Court, 409 U.S. 810 (1972), "for want of a substantial federal question."

The precedential value of such a dismissal (a very rare move) can be, and is, debated in and of itself. The objective (i.e., non-bigot) consensus is that a "federal question dismissal" is only binding in regards to subject matter jurisdiction. And if federal courts lack jurisdiction over a state court case, then of course the underlying merits of that state court ruling remain binding. All that federal Baker v. Nelson says is that state Baker v. Nelson could not be appealed in federal courts given the specific facts of the case and the status of federal Fourteenth Amendment jurisprudence, as it stood in 1972. Nothing more.

But some legal analysts, and all anti-gay bigots, try to bootstrap that flowchart into a claim that federal Baker v. Nelson was then, or is now, somehow a sweeping, all-encompassing "decision on the merits" (i.e., of whether any gay marriage ban can ever be challenged in any federal court). It is not.

All federal Baker v. Nelson says is that, in 1972, same-sex marriage was not a "substantial federal question."

But of course, this is not 1972.

Any constitutional law scholar (or at least those not appearing before a Senate confirmation panel) who researches the issue (Sotomayor testified that she was unfamiliar with it) will tell you that Zablocki v. Redhail (1978), Romer v. Evans (1996) and Lawrence v. Texas (2003) — not to mention DOMA (1996) — have clearly and unambiguously rendered federal Baker v. Nelson a nullity. (State Baker v. Nelson is still perfectly good law — for now.)

Precedent is only precedent until it isn't anymore. Anti-gay discrimination generally, and same-sex marriage specifically, are now obviously "substantial federal questions," period. To suggest otherwise is self-abasing constitutional insolence.

On timely motion, the court must permit anyone to intervene who … claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
–Federal Rule of Civil Procedure 24

Some very misinformed gay bloggers are completely misunderstanding, and misreporting, the news that Lambda Legal, the ACLU and other major gay advocacy groups are petitioning to intervene in the controversial "Olson/Boies" lawsuit challenging Proposition 8 (Perry v. Schwarzenegger).

Box Turtle Bulletin:

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olsen [sic] and Boise [sic] oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

Towleroad:

The argument for the Johnny-come-lately LGBT groups butting out is more persuasive than just a me-first, knee-jerk reaction[.]
…
It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or — depending on your capacity for cynicism — are intentionally dragging down a suit from a rival group working for the same cause.

The Box Turtle Bulletin clip, besides misspelling both Olson's and Boies' names, is especially frustrating in its obliviousness. Are we really dealing with "four captains trying to pilot the ship" — or "two captains trying to take back the cockpit from a pair of drunken stewardesses"? I don't know.

What I do know is that if my interests are being represented, against my will and against my reasoned judgment, by parties I conclude are not well suited to do so, then I am surely entitled to act on my own behalf. Rule 24, and Lambda's actions, are deeply routed not only in law, but simple ethics and common sense.

But so what, right? Burn her anyway!

The following is the comment I left at Towleroad:

Anyone who thinks that Lambda Legal and the ACLU are "johnny come lately" groups is too hopelessly uninformed on the history of gay rights litigation to be taken seriously.

Meanwhile, intervention is a matter of right. If the potential intervenor (and the judge) believe that the litigation affects the intervenor and that the litigants are not likely to adequately represent the intervenor's interests or legal arguments, then it is wholly appropriate to allow the intervenors to represent their own interests. It's called "due process" — maybe you've heard of it?

Or are we suddenly opposed to allowing people to sue for their rights?

One more point: The term is "amicus curiae" — friend of the COURT. It says nothing about being a "friend of the plaintiff."

Maybe Olson & Boies will prevail. Maybe Lambda Legal is reaching the wrong conclusion and taking the wrong action. Entirely possible.

But any gay who questions Lambda's motives, their superior ability to strategize on gay rights litigation, or their proven track record, is just being insolent for the sake of insolence and is humiliating himself before the entire gay blogosphere.

—

Yes, I intend to blog about the Massachusetts DOMA lawsuit. For now, here's a tweet I posted:

I see one interesting point in the Mass DOMA complaint. The rest is gobbledygook that will likely be dismissed for lack of standing.

Stay tuned.

The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India's Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution.

So this is clearly an "end of the beginning" situation rather than a "beginning of the end" (not even the U.S. can claim that status).

Meanwhile, let's not lose sight of how this landmark (if local) decision is serving to unite and inspire the entire nation of India — in religiously commanded hatred and bigotry:

"This Western culture cannot be permitted in our country," said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.
…
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India's deeply held traditions.

"We are totally against such a practice as it is not our tradition or culture," said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.

In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, "at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable."

Progress? That's a relative concept.

"I like your Christ. I do not like your Christians. They are so unlike your Christ."
–Mohandas Gandhi

The case is Naz Foundation v. Government of NCT of Delhi (PDF – 105 pages).

Previously:
–Global Christians Race to the Bottom on Gay Bigotry
–Naked Bigotry Update: Pope Urges Anglicans to Reject Gays

–It is a request by President Obama. Literally: "I hereby request the following…" File that under "bold new leadership…"

–It is not "change." The memorandum is thoroughly infested with weasel term such as "currently available," "consistent with," etc. At best, the memorandum is the equivalent of policy proofreading: Let's go back and make sure we didn't miss anything that we were supposed to do in the first place.

–It is expressly worded not to give gays any real tools to work with:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

That's boilerplate that always appears in such memorandums — when they're meant not to mean anything.

–It is not a "law" by any denotation of the word. It goes into neither the United States Code nor the Code of Federal Regulations. Only the (voluminous but worthless) Federal Register, which is the functional equivalent of the federal government's scrapbook.

–It is unconstitutional (or would be, if it were an actual law or order rather than a bottom-of-the-cereal-box plastic toy with no real value). More on that below.

–It is not applicable to health care benefits. With the putrid mucus of socialized medicine proposals gushing out of every Obama administration orifice, there's a definite bit of "fierce advocate" irony there.

—

Let's go back to why the memorandum, were it at all substantive, would be unconstitutional.

–First, "domestic partner" is not a federal term of art, in either the statutory or regulatory senses, and is therefore unconstitutionally vague. What exactly is a "domestic partnership," who gets to decide, what kind of notice is given, and is there an appeal process? Again, such questions are mere academic cocktail hour topics, since the memorandum isn't really a government action in the first place.

–Second, there are equal protection questions. Let's say you have three similarly situated same-sex couples "covered" (loosely speaking) by the faux initiative:

1. One in Massachusetts, where gays can get married.
2. One in New Jersey, where gays cannot get married but can get "civil unioned."
3. One in Wisconsin, which has a "no nothing never" bigot amendment.

The one thing that the three couples have in common is that none of them have a "domestic partnership." If the intent is to extend (already existing) benefits to the couples in Massachusetts and New Jersey, then where does that leave the Wisconsin couple?

Or perhaps the plan is to have an honor code: The federal employee need only fill out an affidavit declaring her loved one to be her "domestic partner." But that poses equal protection issues too: Why shouldn't unmarried heterosexual couples be afforded the same option?

Because in, e.g., Wisconsin, straights can get married but gays can't? Okay — but now suppose you have a gay couple in Massachusetts who choose not to marry but opt instead to declare themselves an (unmarried) "domestic partnership" in order to glom on to the (not) new policy. Are we going to require them to get married to get the benefits? And so on…

Oh, and DOMA is still on the books. If the memorandum actually meant anything, and if anyone actually had standing to sue over it, then it's fairly obvious that the more potently the memorandum were used, the more likely it would violate DOMA (which, recall, Obama is defending vigorously in court. Ahem…)

Again, this is all angels dancing on the head of our cowardly president. I expect no law review articles, intense blog debates or other elaborate evaluations of these (strictly hypothetical) issues to emerge. But they help illustrate just how pointless the memorandum is. One would normally be tempted to call it "insulting," but this president has so callously insulted gays so many times already that this latest gesture barely warrants a footnote.

The memorandum does not insult the gay rights movement per se (leave that for the ever-lengthening trail of gay-hostile wreckage — from Rick Warren to the DOMA brief scandal, and likely beyond). Instead, this absurd piece of worthless paper insults our intelligence. This obnoxious, Rube Goldberg inspired non-policy, in which Obama actually finds a way to call nothing "something," is like two parents letting their kids vote on toppings for the pizza and pretending that the family is a democracy. It's cute — and strictly fantasy.

Gay apologists for Obama will either fall for it (again), or they won't. While there have been some "green shoots" (rainbow shoots?) on that front, for now I'll settle for a well-directed "I told you so…"

We all knew the likely outcome after oral arguments. We all knew the absurdity of such a monumental question being decided on downright silly parlor debates about "amendments" versus "revisions."

We all knew what wasn't at stake: The all-important finding that sexual orientation is a suspect class entitled to heightened scrutiny still stands in California (and now in Iowa as well). And the "separate but equal" domestic partnership option will remain available to future same-sex couples in California.

We all knew that the activists would come charging out of the gate with their plans to get a repeal initiative on the ballot.

So are there any bangs to be crafted out of this field of whimpers? Perhaps:

–The very-oft-repeated refrain from the majority that "only" the word marriage was at stake, and that the "separate but equal" domestic partnership regime endures, seems to me obviously intended, with disdain and even hostility, for the bigots. One can almost see, emerging from the margins in faint font, "Okay, you win — for all the good it will do you…"

(Someone had a deliciously snarky suggestion yesterday: The California legislature could, consistent with Prop 8 and the decision, limit the words "marriage" and "married" to heterosexual couples but still enact a new status called "wedding" and "wedded" to gays. I'm sure Maggie Gallagher would have a conniption over that.)

–As time passes, it will become increasingly clear that the most tragicomic character in this farce was Jerry Brown, already a laughable and pitiful politics addict long before Prop 8. The court was merciless in its impatient dismissal of Brown's asinine "the constitution is unconstitutional" argument. The lopsided vote notwithstanding, one can only wonder how the case might have played out had Brown not tried to be — well, a politician — and simply toed the "revision not amendment" line. Idiot.

—

Most of the voluminous decision addresses the otherwise uncaptivating "amendment versus revision" question and is nowhere near quoteworthy. Two exceptions deserve highlighting, however:

First:

Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. [Emphasis added; internal citations omitted.]

This merely restates the California constitution itself:

All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require. [Emphasis added.]

As I noted previously, both passages confuse, horrifically, the words right and power.

It is true, as an axiom, that all political power resides in the people. It is true, as an axiom, that the mob always has the ability to behave like a mob. But these observations are mere matters of unambiguous fact. They are on a par with saying that a person with a gun has the ability to kill. That is a metaphysical statement, not an ethical one — and certainly not a political one.

But such statements, such factual observations, are totally orthogonal to the question of the legitimacy of what "the people" (nee "the mob") do.

Might does not make right. Neither does majority make right.

Second:

As we have observed in past cases, "The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's." The progressive movement, both in California and in other states, grew out of a widespread belief that "moneyed special interest groups controlled government, and that the people had no ability to break this control." … The initiative was viewed as one means of restoring the people's rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments. [Emphasis added.]

In their quest to abridge property rights and freedom of contract, the progressives — and their modern-day liberal heirs — inadvertently enabled the abridging of marriage rights and equal protection by a new category of nefarious "moneyed special interest groups" (i.e., the Mormon and Catholic churches). Go figure.

I, qua libertarian, can't help but feel just a little bit smug over that thought (though I would gladly have traded that emotion for a different outcome here).

The case is Strauss v. Horton, No. S168047 (Supr. Ct. Cal., May 26, 2009) (PDF – 185 pages)

—

Meanwhile:

Two of the nation's top litigators who opposed each other in the Bush v. Gore election challenge in 2000 have joined forces to seek federal court intervention in California's gay marriage controversy.

Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

Olson said today that he hopes the case will wind up before the U.S. Supreme Court.

The lawsuit seeks a preliminary injunction against California's Proposition 8 until the case is resolved.

The only way this becomes a federal case is by invoking Romer v. Evans — which of course is entirely on point and which, under any impartial reading, clearly requires that Prop 8 be invalidated.

But are ("activist") federal judges ready to acknowledge that Romer demands that all bigot amendments (and not just California's) be struck down? The smart money (e.g., Lambda Legal) says no. But Olson and Boies are no slouches either — or are they just hired guns, as Kenneth Starr was a hired gun for the bigots in this lawsuit?

Stay tuned…

Previously:
–On the [Original] California Gay Marriage Decision
–On the Petition to Overturn Proposition 8
–On the Brown Proposition 8 Brief
–Thoughts Going Into the California Oral Arguments

Two of the nation's top marriage equality litigators will lead a nationwide phone briefing on Tuesday, May 12th, to discuss current and upcoming developments in same sex marriage. The call is free and open to the public.

The discussion will be led by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders.

Jennifer Pizer served as co-counsel on the case that established the rights to equality for same-sex couples (In re Marriage Cases), and the subsequent challenge to Proposition 8, Strauss v. Horton. Mary Bonauto served as co-counsel in Baker v. State of Vermont, establishing that Vermont same-sex couples are entitled to all the benefits and protections of civil marriage.

The more desirable route would be for Congress to repeal DOMA, but that would require the Obama Administration and Democratic leaders in Congress to show political courage and to be willing to expend political capital in an all-out struggle, and nobody is holding their breath for that to happen, given the timidity and cowardice of the political branches of our federal government on any issue involving gay rights. Consider – The Don't Ask Don't Tell military policy makes us a laughing-stock before our strongest military allies, since it is founded on the peculiar notion that American service members are such emotionally insecure creatures that they will collectively flip out if the numerous gay servicemembers among them were open about their sexual orientation, and yet the Obama Administration, elected on a pledge to end the farce, has now put this issue off "indefinitely" – because, of course, the administration is unwilling to expend political capital on anything involving gay rights…. And when did you last read that the Obama Administration was going to secure passage of an inclusive Employment Non-Discrimination Act this year???? They keep saying that they don't want to be distracted now from the twin issues of the economy and the wars in Iraq and Afghanistan… but then they insist that this year will also see action on education and climate change and this and that…. in other words, this is an Administration that is devoted to multitasking – but just not for the LGBT community, who they can continue to take for granted politically because of the continued knee-jerk anti-gay rhetoric of the Republicans. [All ellipses and typos in original.]

He forgot Rick Warren, but we can forgive him for that.

I would have let this fine blogpost come and go, but later in the day I read another post on a very high-profile gay blog (I will not link to it so as not to humiliate the author), reminding readers that gay marriage in New York State now hinges on "support from some Republicans" in the state senate — totally omitting the pesky fact that said state senate is now controlled by Democrats — some of whom happen to be anti-gay bigot Catholics.

Gay Democrats gave Bill Clinton a pass. Then they gave Hillary Clinton a pass, along with the three other candidates for the Democratic nomination who were in the Senate and who could have actually introduced or co-sponsored legislation regarding DOMA or DADT, but chose not to — for the very same "risk no political capital for gays" attitude that Leonard notes so adeptly.

Gay Democrats are as a group still nowhere near the plateau of pathetic self-loathing that gay Republicans occupy.* Still, there is no basis for pretending that the tried and true Democratic tactic of throwing gays under the bus is either new or shocking.

They've simply been doing it too long and too often to pretend you hadn't noticed.

—

*Speaking of gay Republicans:

A dissident faction of gay conservatives is launching a rival group to the traditional voice of gay Republicans: the Log Cabin Republicans.

GOPROUD, the new 527 group, will launch next week, according to a media advisory. The contact given for the group is Christopher Barron, a former Log Cabin political director who broke with the group.

"Essentially, there's no voice for gay Republicans or gay conservatives in particular in D.C. right now. Log Cabin has been completely and totally absent here in D.C. for months and months," Barron said."

"It has simply moved way too far to the left and is basically indistinguishable from any other gay left organization."

Sure it has.

It's quite simple really: Self-loathers who break away from the self-loathing group that represents them and then form another self-loathing group are still self-loathing.

Would it really be so horrible to become, if not a libertarian, then just an independent? Really?

Previously:
–The Perils of the Democracy Fetish — Part Two

Just a few highlights:

• Even this court felt compelled to address the increasingly muddied conflation (most notably in California, obviously) of "mob rule" with "the will of the people" —

  Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it. While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. [Internal quotations omitted.]

  Perhaps, but that merely reinforces the importance of always keeping the proper sequence of the analysis in mind. A governmental action is not "right" simply because "the people" did it. The legitimacy, or illegitimacy, of governmental action exists independently of how that action came about. The government, or "the people," can do legitimate things unconstitutionally, and can do illegitimate things constitutionally. The two sets of actions — "legitimate" and "constitutional" — may have a very large intersection, but they are not identical.

• The court explicitly held that "discrimination based on sexual orientation" is not "discrimination based on gender" (e.g., "a woman can marry me but a man can't…"). That argument, though repeatedly tried, simply never works — even in friendly forums. It's probably time to retire it.
• As I tweeted while reading the opinion: Did the bigots really suggest that gay marriage bans are in fact not true "sexual orientation discrimination" because, technically, two straight men could not get married either? Have they really become that pathetic?
• As I noted repeatedly during the California drama, the net outcome in Iowa should not eclipse another all-important victory in the opinion: that sexual orientation is a suspect class subject to intermediate scrutiny. Even under the worst-case scenario in California, that high court's earlier ruling that gays are a suspect class will remain good law and will make any attempt to discriminate against gays impossible in that state without a constitutional amendment (i.e., like Proposition 8).
  
  Now Iowa has also found that any anti-gay laws, and not just this marriage ban, must be subjected to heightened scrutiny. This long quest to get a jurisdiction — any jurisdiction — to declare sexual orientation a suspect class has not only been achieved, but may even be snowballing.

  [Note: Recall that California does not have "intermediate scrutiny," but only "strict scrutiny." Iowa, meanwhile, specifically noted that it was not saying that sexual orientation discrimination does not warrant strict scrutiny, because "intermediate scrutiny" was sufficient to strike down the marriage ban. The Iowa court may someday find cause to apply strict scrutiny to future anti-gay laws, but intermediate-level scrutiny is itself a monumental victory that, like In Re Marriage Cases, can be cited as persuasive authority in future litigation in all gay rights matters, not just same-sex marriage. One cannot understate the importance of suspect class status, regardless of what the California Supreme Court ends up doing with Prop 8.]

• Ironically, the Iowa court conceded:
  
  

  Although a small number of state legislatures have approved civil unions for gay and lesbian people without judicial intervention, no legislature has secured the right to civil marriage for gay and lesbian people without court order. [Emphasis in original.]

  Going back to the bigots, isn't it astonishing how adeptly they can, with a (literally) straight face, point to the plethora of bigot amendments as proof of "overwhelming" opposition to full marriage equality while simulataneously insisting that gays are not politically powerless because they enjoy an anti-discrimination law here and there and civil unions or domestic partnerships in a jurisdiction or two? (More on Vermont below.)

• While I fully appreciate the basis for keeping these lawsuits grounded in state constitutional law (i.e., to avoid federal appeals), I still wish these courts would cite more often to the core holding of Romer v. Evans (i.e., that mere animus toward an insular minority is never a legitimate governmental interest). The Iowa Supreme Court said as much:
  

  Thus, the use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage. This approach is, of course, an empty analysis.

  Stated differently: Bigotry for the sake of bigotry is not a legitimate function of government. But if the campaign for full equality is ever to jump to federal courts, then people are going to have to start acknowledging that Romer was in fact written and is in fact still good law.

• On the other hand, it was wonderful to finally see a state supreme court dismiss, summarily and almost indignantly, the argument that marriage bans are justified by the "procreation" or "kids do best with…" arguments, and to do so based on the double-edged sword of simultaneous overinclusiveness (why ban gays who have no intention of ever having kids from getting married?) and underinclusiveness (why not ban bad straight parents from getting married?). Only New York and Washington States' high courts bought into that nonsense; hopefully no more courts will.
• Finally, the court stated the obvious: Civil unions — "separate but equal" — are inherently unequal and therefore an absurd, offensive and unacceptable compromise. Are you listening, New Jersey Supreme Court?

The case is Varnum v. Brien, No. 07–1499 (Supr. Ct. Iowa, April 3, 2009) (PDF – 69 pages).

Lambda Legal's press release here. More thoughts from Hunter of Justice, Con Law Prof Blog.

—

As for Vermont: As I tweeted: Celebrate, to be sure, but remember also — It should never have needed to be put to vote in the first place. Gays, like any insular minority and indeed like any individual, should never have to feel grateful to the mob for not acting like a mob — just as we should not be expected to thank a thief for not robbing us. The notion that "all power comes from the people" is a axiomatic statement of fact, little different from "anyone with a gun can kill you." Metaphysics is not politics, and neither is it ethics.

The correct question is one of legitimacy. The truth that "all power comes from the people" does not nullify the additional truth that such power can be abused — no matter how couched in blather about "democracy" and the "will of the people" it may be. If a statute — or a constitution or even a court ruling — allows power to be misused, then the statute — or constitution or even court ruling — is illegitimate.

So again, celebrate Vermont — but remember what you're celebrating: not "legitimacy" but only the "absence of illegitimacy." Two very different concepts indeed.

And stay indignant and vocal about the ludicrous schizophrenias in New York and now D.C. (where gays can "be" married but cannot "get" married) and New Jersey ("separate but equal" civil union gobbledygook).

As George Bush has demonstrated, you can pretty much destroy an entire country and more than a quarter of the public will still insist you did an O.K. job.

The target of Collins' comparison is New York's accidental governor, David Paterson, who — thanks to his wide, broad and deep incompetence — is setting new records for "drops in approval ratings."

But Paterson is not the target of this blogpost:

Meanwhile, the 32 Democrats who control the [New York] State Senate by one vote have discovered that a party with a one-vote majority is exactly as good as its weakest, dumbest and most venal member. This in a group where one guy is about to stand trial for beating up his girlfriend and several others give the impression of being willing to trade their vote for a television someone handed them from the back of a stolen truck.

Gay New Yorkers could have told you that.

And not just gay New Yorkers. Gay Californians had the state legislature, the governor and the attorney general on their side. Oops, they forgot to check with the "weakest, dumbest and most venal" element of their governing process — bigot voters. Outcome: Not exactly as planned.

Or gay Vermonters. State legislature on their side. Oops, they forgot to check with the "weakest, dumbest and most venal" member of their governing process — a bigot governor. Outcome: Not exactly as planned.

Of course, this phenomenon of "weakest, dumbest and most venal" is non-partisan. Remember how Republicans briefly exhaled a sigh of relief upon learning that they still had a filibuster-enabling bloc in the Senate? Well, the three "weakest" members of the Republican caucus promptly put that wishful thinking in its place.

As for the Democrats in Congress (and remember, there are an awful lot of them now), they still can't come up with the votes to repeal DOMA or DADT. Why? Three reasons: weak, dumb, venal.

Or maybe not. Maybe to be weak is to be powerful and to be dumb is to be smart. (Since all politicians are by definition venal, we'll leave that one aside for the moment.) The least Democratic members of the New York State Senate essentially captured the entire legislative agenda. So did the three New England pseudo-Republicans in the U.S. Senate. And who could possibly forget Joe Lieberman?

Sometimes "weak as strong" goes Mobius Strip and becomes "weak as strong as weak as …" See, e.g., Arlen Specter, who is either the strongest weak Republican, or the weakest strong Republican, in the Senate. Or maybe he's not even a Republican anymore — hard to tell these days. But card check still hinges on his weak-strength/strong-weakness.

The idea of "weak as strong" even transcends the legislative branch. Recently, a silly woman wrote a silly book espousing a silly idea: That Supreme Court Justice Anthony Kennedy is a ("modest") libertarian. Um, no. The best way to describe Kennedy (or at least post-O'Connor Kennedy), as I have explained previously, is as the perennial chaser of the swing vote. Because on the Supreme Court, the swing vote — whether as "weakest conservative," "weakest liberal" or "weakest whatever" — is of course the strongest voice: the one who gets to write the controlling opinion.

Democracy fetishists (and their incestuous siblings, the political fetishists) tend to forget that "politics" is nothing more than "politicians" — all of whom seek, to the greatest extent possible, to maximize their own power, prestige and influence. If being (or acting) "weak, dumb and venal" works to that end, then few if any politicians will hesitate to do so.

Furthermore, a system that is rigged to pull both partisan extremes to the political center will inevitably maximize the power at the center. But what is "the center" but the weakest partisans? The system encourages weakness; the system rewards weakness. To be weak can be extraordinarily powerful.

So stop acting surprised when you see "weak, dumb and venal" politicians all around you casting "weak, dumb and venal" votes.

(Part One here.)