Hearing the President’s recently released speech for today on marriage was an interesting experience.
Word for word, you could have placed his speech into the context of opposing interracial marriage. At the time, it was claimed that activist judges were making law (as opposed to enforcing rights). At the time, it was claimed that interracial marriage would destroy family. Just as little evidence was given for that as is given today.
In fact, the position of conservatives today is virtually identical to that of those who opposed interracial marriage. You don’t even have to change the words, because in most cases the modern opposition to gay marriage can’t even be bothered to speak about gay people at all: they define the issue without ever once mentioning the people they are trying to bar from getting married, without acknowledging that they have families and partnerships and function in society. I mean, that’s simply pathetic. If you oppose gay marriage, at least have the guts to look gay people in the eye and talk about them. At least the opponents of interracial marriage at least talked openly about the people they didn’t want intermingling. It was cruder, but it was more honest.
I just don’t see how anyone, anyone can possibly think that history is not going to look back on this and see much more than bigotry. The arguments against gay marriage are all distinctive in that they are ad hoc: they all have the distinctive ring of lazy diversions quickly thrown together to avoid having to simply state that gays and gay relationships are bad and should not be encouraged.
Congress did act, by passing the 14th amendment. It’s no stretch of the wording or the clear intent of the 14th amendment that racially discriminatory laws are not consititutional. There is nothing inherent in the term “marriage” that restricts it to people of the same ethnic background. SSM is fundamentally different in that it takes marriage to mean somthing that it has never historically meant in our culture.
As much as I favor SSM, I just can’t pull that out of the 14th amendment. Think of it this way: Would the 14th amedment have passed either in 1868 or in 1967* with the added clause: This amendment forbids states from restricting marriage between racial or ethnic groups. I think it would have passed in both time periods, but there is absolutely no question it would’ve passed in 1967. Now, ask yourself if the amendment would have passed in 1868 or in 2006 if this clause were added: This amendment forbids states from restricting marriage between same sex partners. No way. Not then and not now. I find it hard to construe the constitution is such a way that it not only means something different from what the drafters meant, but also different from what people today reasonably expect it to mean. That’s where I start calling something judicial activism (even if it results in an outcome I favor).
It’s an unfortunate, but unavoidable consequence of living in a constitutional democracy that the people ultimately decide what goes into the constitution. While I can have some sympathy for the non-textualist approach to constitutional interpretation because words and concepts do change over time, I can’t see that justices should extrapolate the meaning of words or concepts into what they might mean in the future.
I think you’re correct, and your rhetorical example is a really good one.
However, the real meat of Tripwire’s OP is not the legal question, but the moral one:
You have to admit s/he is right.
I am always a bit flabbergasted by the obviousness of this, actually. It seems, at least to me, so inevitable that in 40 years’ time people will look back and say, “Geez, what was wrong with those bigots?” and folks who supported this ridiculous amendment will lie to their grandchildren and say they didn’t, just like folks who opposed civil rights and screamed invectives at blacks people will today lie to their grandchildren and say they supported the civil rights movement. Perhaps I’m wrong, but I will bet very good money that I’m right, and that a few generations from now Bush’s stance will be viewed with the same combination of contempt, moral superiority and apologia with which we now view the racists of the 1920s.
First of all, while I agree with your argument, for over 80 years no one saw the 14th Amendment as allowing interracial marriage - or no one who brought it to an approving Supreme Court. It certainly did not ban interracial marriage. Today, I agree, it seems obvious.
But Bush is not saying that the 14th Amendment either allows or bans SSM. I agree that it says nothing about it, and I suppose he does also, since he is backing a new amendment to ban it. Most of the state battles have been waged based on state constitutions. The real question is why is the federal government getting involved in this states rights issue at all? Yes, it would be good to grant marriage benefits to SS couples, but waiting for a consensus of the states is okay also.
So, I wouldn’t change the anti-SSM amendment to a pro-SSM one, just ask the fed to keep their cotton-pickin’ hands off the subject while the experiment plays itself out.
This argument is paper thin. Marriage between gay people is in no way functionally or legally different in exactly the same way that race makes no difference.
That’s plainly ridiculous. Many African-Americans wouldn’t have voted for interracial marriage then, much less the majority of whites. Heck even the greatest civil rights leaders of the time were still racialists who believed that different races had different spirits that shouldn’t intermingle.
The fact is, laws purport to be grand principles of justice. Sometimes applying those principles accurately takes us to places we didn’t envision. That’s not activism or tortured readings, it’s the price you pay for having principles that may not always play out how you wanted.
Noting attitudes at 1967 is irrelevant if judges are not meant to legislate.
The point is that many people at the time said EXACTLY the same thing about Loving, and found your argument about the 14th to be EXACTLY as implausible as you find the idea of SSM. There arguments as to why the bans were compelling state interests were pretty much identical to the arguments today, and just as poorly founded.
The arguement for getting involved in a states’ rights issue is the fear that the SCOTUS might overturn DOMA and force every state to recognize SSMs from states where they are legal. I consider that a very, very weak argument, but that is the argument that is made. Certainly the political implications are not lost on Bush, and I strongly suspect that that is 99% of the real reason. However, I’m not so sure this is a good political calculation except in as much as it rallies the base, since there is little desire for a federal constitutional ban on SSM even if most people don’t favor legalizing SSM. Is it worth rallying the base if you piss off everyone else? It’s not so much that they don’t want the amendment, but they don’t want Congress wasting its time on this when there are so many other critical things that need attention. This is Terri Schiavo redux.
As for the moral argument made in the OP, I suppose it’s true that at some point in the future it will be inconceivable to the vast majority of Americans that SSM was once illegal. But I suspect it will be more than 40 years from now. (Maybe up there is Canada, but not in the US.) I supsect that 40 years hence we will see a smattering of states with legislatively legalized SSM*, but that more states will still not allow it.
*as opposed to judicially legalized SSM per the MA model
An excellent summary of the originalist position, John.
But you have no right to post that. And I mean that literally.
You have the freedom to express it orally, and no one can stop you. And you have the freedom to cause a willing publisher to print it. But the Founding Fathers never took the Internet into account. So, quite literally, you have no right to post it.
Me, I’m a living Constitutionalist, and, in Voltaire’s famous phrase…
Marriage never meant “marriage between two races” previously in our culture, either. Marriage, if you lose the religious aspect of it (which has been long-gone as far as government is concerned for some time) has more to do with social contract than family or anything else. I personally don’t see how anyone in this day and age can interpret marriage as anything BUT a social contract. Whatever religious meaning you care to tack on is fine, but it has nothing to do with the government’s interest in marriage. The government is interested in people taking care of each other. Nothing about same sex marriage goes against that.
My argument was one of the historical meaning of the term “marriage”. It has never, ever, ever meant SSM (in our cultural history). Racial intermarriage was never inherently not part of the definition-- racist policies were created after the fact to prohibit interracial marriage. I make that point only in reference to how one should read laws in their historical context. A 19th century American would not always read the word “marriage” to include only people of the same race, but he certainly would read it to include only people of opposite sex.
Cite?
But I suggest you look up the meaning of the word “or”, as in “1868 or 1967”.
Except that I explicitly said that my argument makes things turn out not the way I want. The law does not purport to be anything other than what it is. It’s the best approximation of justice that we can all agree on, not justice itself in some abstract sense. I can think of lots of things I would consider “just”, but that most other people wouldn’t. That doesn’t mean my opinion holds sway in a democracy.
I said I had sympathy for that view, not that I subscribe to it myself, so I’m not going to argue for it. I pointed that out to distinguish it from extrapolating into the future about what peoples’ attitudes might eventually become.
Except that those arguments were in the minority. Thems the breaks in a democracy. I don’t mean to be flip about it, but serioiusly, that’s just the way the system works. Ask yourself these two questions: In how many states was interracial marriage illegal in 1967? In how many states is SSM illegal now? I’m not making an argument that numbers = moral correctness, but I am making the argument that numbers = legal correctness (in a democracy). Please note the distinction, as other posters have.
Actually, no, as I specifically allowed for at least one form of the “living constitutionlist” approach in that post to be respected.
[quoet]But you have no right to post that. And I mean that literally.
You have the freedom to express it orally, and no one can stop you. And you have the freedom to cause a willing publisher to print it. But the Founding Fathers never took the Internet into account. So, quite literally, you have no right to post it.
[/QUOTE]
This is off topic, but really, your statement here is false; interracial marriages had taken place in Western society and its antecedents for millennia. At the same time that Virginia had banned such marriages, other states had not. Some people opposed such marriages, but would have certainly considered them marriages, even if they were the sort of marriages they didn’t want to happen.
I deleted your various comments about religion and marriage because I didn’t see the relevance. Nobody here’s supporting a ban on SSM.
Cite? There may have been strong social taboos against it, but there were plenty of instances of legal interracial marriages throught history. And keep in mind that the meaning of the word “race” itself has changed considerably over the years. It was not long ago that people would say things like “The Irish race”.
You’re really claiming that a law making interracial marriage legal and protected would have passed Congress in 1868, and then you ask for a cite against such a broad cultural anachronism?
I explained why the “or” wasn’t relevant. The law the judges ruled on in Loving was passed in 1868, end of story.
This is a bizarre diversion/avoidance from what I said. I didn’t say anything about you personally or in particular: I said that laws that purport to enshrine large principles can often end up having results that are unforseen when they are actually applied.
We never got the chance to find that out, because a judicial ruling was made. Whether or not we might have passed a law for or against it is irrelevant. In the case of Loving, judges appointed by our due system, not direct democratic legislation, ruled that it violated rights. You seem to agree with their decision, instead of calling it judicial activism. But many people DID call it that at the time.
It would be interesting to see what his position would be if there were any chance of this passing the Senate. As it stands, since it will be a dead issue come November, no one will get too angry, but there might be some benefit for their base by publishing ads saying Senator X is for gay marriage. (A lie, but when did that ever stop them?) The rebuttal is overly complicated - the best anyone comes up with is “I’m against writing bigotry into the Constitution”
The difference between this and Terri Schaivo is that we all can relate to that dilemma, all having parents that we might have to make this decision for, and we all could be in her position. Not true for SSM.
Hey, they’re shmucks, but they’re politcally astute shmucks.
My point was that no matter how empathetic people were, most didn’t want Congress butting in. They wanted Congress to deal with more important issues. Same thing with SSM.
