Now that Proposition 8 has been struck down, will gay marriage become the law of the land?

That's the central question of my Scripps Howard column with Ben Boychuk this week. My take:

Whether the Supreme Court strikes down gay-marriage bans may depend entirely on the attitudes and disposition of Justice Anthony Kennedy, who tends to be the swing vote on controversial issues. Reading his 2003 opinion in Lawrence v. Texas -- the ruling that struck down laws making homosexual sex a crime -- it's difficult to see how state bans on gay marriage will survive.

It is true that Kennedy, in his 2003 ruling, was careful to state that decriminalizing such sexual practices did not require formal government recognition of gay relationships. But the logic of that ruling is compelling in the context of gay marriage.

The logic was this: To use the law to set apart homosexual conduct "demeans the lives of homosexual persons," and thus is at odds with the guarantees of liberty provided by the U.S. Constitution.

Kennedy was right then, and he would be right now to say the same thing about gay-marriage bans.

Such a ruling would invariably bring cries of "judicial activism" from the right, but it's entirely appropriate for the courts to get involved. Since at least the late 1960s, the right to marry has been considered a "fundamental right" under the U.S. Constitution --and nobody seriously contests that. Fundamental rights, it should be noted, cannot and should not be contravened by legislative action or statewide referendums. They simply exist.

Walker correctly realized this in his ruling. Gay couples, he wrote, "do not seek recognition of a new right. To characterize (their) objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

If the Supreme Court follows its own precedent, it will agree. And that will be a good thing.

Ben obviously has a different take on things, about which I can say little more than what I have. I do have to take issue, though, with one of his remarks:

Marshalling one-sided testimony from social scientists led Walker to conclude: "Gender no longer forms an essential part of marriage," "parents' genders are irrelevant to children's developmental outcomes" and, incredibly, "the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage."

Here's where it must be noted that if the testimony in the case seems "one-sided," it's because the Proposition 8 proponents who argued the case at trial barely bothered to put on a case. They called just two witnesses, one of whom -- David Blankenhorn -- wasn't a researcher, exactly, but a pundit. (From Prop 8 on Trial: "He has never written a peer-reviewed article on the effects of same-sex marriage nor, by his own admission, studied any of the legal cases in which the United States Supreme Court has declared marriage a fundamental right.") I think it's fair to say that Ben is just about as qualified as Blankenhorn to make the pro-Prop 8 case -- and Ben, despite being widely read and a great writer, isn't qualified at all to testify as an expert witness.

Qualifiactions aside, though, he wasn't exactly a stellar witness for his side:

Under cross-examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study that showed children reared by gay couples fared worse than those raised by heterosexual parents.

Blankenhorn also conceded that same-sex marriage would probably "improve the well-being of gay and lesbian households and their children."

Further down our column, Ben complains that Judge Walker "simply asserts" that voters based their decisions based on moral disapproval. But the pro-Prop 8 attorneys basically tried to assert their way to legal victory in this case. That's not the fault of Walker, nor is it the fault of gay marriage advocates. And it's hard to avoid the conclusion that the pro-Prop 8 lawyers barely put on a case defending the Constitutionality of a gay marriage ban because, well, they didn't have much of a case to make.

Proposition 8 and judicial activism

This excerpt from Judge Vaughn Walker's ruling strikes a proper balance, I think:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious recknong that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

Emphasis added.

Obama Disappointment Watch: Cordoba House Edition

I'm starting to wonder if President Obama can give nuanced speeches on controversial topics only when his own bacon is in the fire. Because in the history of cowardly question-ducking, this one goes pretty high on the list:

As the proposal to build a 13-story Islamic center two blocks from Ground Zero moves forward and controversy surrounding the plan grows, top New York Democrats are maintaining radio silence on the matter.

President Obama is also declining to take a position on the issue. Press Secretary Robert Gibbs said today the decision to build the mosque next to Ground Zero is "rightly a matter for New York City and the local community to decide."

When a reporter asked why Obama would use his powers of moral suasion on other issues where religious freedom is concerned, but not this issue, Gibbs ducked the question and said it was a local matter.

This is Grade A political cowardice. And it's furthermore nonsensical: The First Amendment is a "local matter?" Umm ... where to begin?

At Mother Jones, Kevin Drum wonders whether Republicans who are summoning the country to a culture war over the Cordoba House issue -- Rudy Giuliani, Sarah Palin and Newt Gingrich, most prominently -- are "venal or stupid." It doesn't actually matter, but the question moves him to state: "For once, I really do miss George Bush. The damage he did to the American cause in the Muslim world is incalculable, but at least he never countenanced this kind of lunatic bigotry."

That's exactly right. And the problem with Obama right now isn't that he's "countenancing lunatic bigotry." The problem is that he's doing nothing to counter it.

Now, the country's fairly well split these days, and it's possible -- I suppose -- that an Obama statement would be greeted along more or less those lines. But as many commentators have noticed, the Cordoba House initiative really isn't a local matter: It's being watched by "peace-seeking" Muslims around the world to gauge if the United States makes good on its promises, or if this country is willing to bend or even break its own rules to deny Muslims the right to full participate in American life. That makes the debate something of a national security issue -- and thus demands the president's participation and leadership.

Instead, we're left to seek statesmanship and moral leadership in the unlikeliest of places: Ladies and gentlemen, I give you New York Mayor Michael Bloomberg.

Dear Steve Levitan: Don't take 'Modern Family' offline!

James Hibberd reports:

If it was up to Steve Levitan, his ABC hit "Modern Family" wouldn't be available online.

During an ABC-sponsored coffee break at TCA, Levitan said he's unsuccessfully lobbied Disney-ABC TV Group president Anne Sweeney to remove online versions of his hit show.

Noting there's roughly 2 million people watching "Modern Family" episodes online whose viewership is not fully monetized Levitan said that, in theory, those viewers could be watching the comedy on regular ad-supported TV.

I'm one of those 2 million viewers. And I need to let Mr. Levitan know something: I'm not going to watch "Modern Family" on TV if you take it offline. I don't have a TV. (I don't say that snobbishly; I'm obviously watching TV shows anyway.)

If you take "Modern Family" off Hulu, then, one of three things will happen.

* I will stop watching "Modern Family" entirely. There's no money in that for you!

* I might hypothetically watch, ahem, less than fully legal feeds of "Modern Family" that will be easy to find online anyway. There's no money in that for you!

* I will wait a year or two for "Modern Family" to show up on Netflix Streaming, or some after-the-fact placement on Hulu, and watch it then. In which case, you probably get some money -- but only about as much as you're getting now!

As Levitan surely knows -- or, at least he should -- 2 million viewers online isn't really 2 million viewers he's not getting on television. Some people might go back to the TV, surely, but a lot won't. Instead of seeing the 2 million viewers of "Modern Family" online as "not fully monetized," he should instead think of them as "additional monetization we might not be getting otherwise." Hulu is ad-supported, after all.

The web video genie is out of the bottle. It's not going back in.

A reader challenges me on the Cordoba House and religious freedom

"Capt. Jack Gilles," a reader of the Scripps Howard column, writes to challenge my position in favor of the Cordoba House mosque at Ground Zero.

If there is no debate then:Shouldn’t ground zero not contain a Synagogue and a Church as well as a mosque ?

And my response to this is: Of course! If any Jewish or Christian congregations want to build near the site and there's a space for them, let them build! I don't advocate for the Cordoba House because I'm an evangelist for the Muslim faith; I advocate for the Cordoba House because I believe in American values and laws, particularly as represented in the First Amendment.

Gilles also repeats the canard that the the Cordoba House mosque amounts, essentially, to trophy-claiming by Muslims for their "victory" on 9/11. It's a common view -- one, again, that assumes that American Muslims are indistinguishable from Osama bin Laden in their beliefs and sympathies. I do not believe that and I do not grant that.

After the jump, Gilles' full letter:

Tom Corbett and me in the Philly Daily News

If you saw my blog last week, you already know what I think about GOP gubernatorial candidate Tom Corbett's ongoing "unemployed people are lazy" meme. I expand those thoughts in today's Philadelphia Daily News -- and even add a little research to show just how bad the jobs situation is in Pennsylvania right now:

Between June 2009 and June 2010, this is what happened:

* The state lost roughly 9,000 professional and technical jobs that had a prevailing annual wage of $73,808.

* Another 10,000 manufacturing jobs were lost in a sector that typically pays $51,529 a year.

* And the construction industry - which pays on average $51,928 a year - cut another 5,000 jobs.

So where did the state's job growth come from?

* The biggest growth was in "administrative and waste services" - 23,000 new jobs. But they paid just $30,887 a year.

* Pennsylvania added another 15,000 "leisure and hospitality" jobs, with prevailing wages ranging from $14,848 for food-service workers all the way up to $26,583 for "arts and recreation" employees.

* Only one high-wage sector added jobs: The mining industry, with prevailing annual wages of $59,907, added 3,000 new jobs.

The trend is clear: Most of the state's new jobs pay just half the wages - or worse - of all the lost jobs. If you were recently unemployed and trying to restart your career, would this be an attractive picture to you? Would you feel confident in your ability to feed and house your family?

The persecution of Christians in Indonesia

Terrible story in Sunday's New York Times:

For Luspida Simanjuntak, the Christian congregation’s leader, the problem is simple: Her flock of 1,500 has no church, and no one here will let her build one. In Indonesia, houses of worship can be built only with permission from the surrounding community. This is a measure that critics say contributes to a tyranny of the majority and forces minorities to hold services in private homes, hotels, shopping malls and streets.

“We’ve been worshipping for 15 years, more or less, moving from house to house because every time we try to build a church, we’re faced with mobs who won’t let us build,” Mrs. Simanjuntak said.

On the Muslim side of the police cordon, a speaker warned that the Christians were trying to provoke Muslims into violence and were seeking to turn local children into kafir, or infidels.

It's a good thing nothing like that could ever happen in the United States!