I seriously doubt the 14th amendment could have passed in any form in 1967. The only reason the southern states passed it in 1868 was because they were required to to re-enter the Union. But in 1967 there was no such pressure. Look at the vote breakdown by state of the Civil Rights Act of 1964. Now do you still think that the version of the 14th amendment you gave would have a chance of getting enough state support to pass in 1967?
What are you basing the idea that the version of the 14th you gave could have passed in 1868?
You may be right, but keep in mind that *Loving *overturned a 1924 Virginia law, not an 1824 Virginia law.
But the civil rights act was about forcing people to integrate. *Loving *was about allowing people to inegrate. Two very different things. States were in the process of getting rid of or not enforcing anti-miscegenation laws. You might have said, in private, that you didn’t approve of interracial marriage, but it was very unusual to advocate for making it illegal. Not in 1967. Note that the SCOTUS was unanimous in it’s decision on Loving, and the decision didn’t create some huge controversy in the country. Contrast that to the situation today w/ SSM. Anti-SSM ballot initiatives have passed in almost every state they have been voted on. In fact, I’m not aware of a state that has failed to pass an anti-SSM law when put to the people. Imagine the furor if the SCOTUS found that the 14th amendment required states to legalize SSM. You’d get Bush’s anti-SSM marriage constitutional amendment approved so fast it would make your head spin. (At a minimum, an amendment allowing states to define marriage would pass.)
There was considerably more racial equality in the country in the decades immediately after the war than there was 40 or 50 years later. And, as I said before, I think people’s attitudes about allowing the races to mix were different form their attitudes of forcing the races the mix. But I’m not saying it would have been a slam dunk.
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I’m still not following you John. At one point, you’re arguing that courts must follow the law, (though if there are any principles enshrined in the law, those principles should not be applied as written but rather as we might imagine people of (today?!!) might intepret them). And then the next moment you’re arguing that the degree of public acceptance of something or the political fallout plays into how a court rules and how legitimate the decision is. Which is it? Are judges appealing to popular sentiments and ruling however public sentiment takes them, or defending principles outlined in laws regardless of whether those principle lead?
I can’t see any support for any federal action in regard to race that preempted a state law. It would have played as the federal government coming in an interfering with this matter and people’s way of life yet again. There is no way states in the South would have supported this.
I think justices rarely get too far ahead of popular sentiment. Whether they should get further ahead or stay more in line is not what I’m debating, per se. I personally favor a textual, originalist approach to the constitution along the lines of Scalia, but probably closer to Roberts (if you think there is a distinction). However, I’m trying to make the point that even if you favor a more expansive view of judicial authority (which I don’t), it’s hard for me to see how you would expand it so far that you would advocate pulling SSM out of the 14th amendment.
As an example, look at one of the key arguments the courts made when they struck down laws that allowed the execution of minors. The justices claimed that the momentum was moving in that direction in that states were, on their own, striking down such laws. Now, I don’t agree with that reasoning, but what result do we get if we apply that type of reasoning to SSM? The momentum is most decidely moving in the direction of making SSM illegal.
So, really the way I see it, the onus is on you to give a solid judicial reason for pulling SSM out of the 14th. If you can, let’s hear it. Simply saying that it’s only “just” to do so is not an argument.
I didn’t say it was “just” despite you repeating that over and over. I said that a principle like equal protection can lead to decisions that the authors of the principle may not have anticipated. That’s the price of having principles: you might not always anticipate how they work out when you actually do the math. The alternative to having principles, however, is simply having judges make up the law as public sentiment warrants.
Actually, the alternative is for judges to just make up laws as their sentiment warrants.
Of course, they can keep to what the text meant to the people who wrote it (as best they can determine). That’s a principle, too, you know-- the principle of self governance. If the people want to change or expand the law beyond what the drafters meant, there is a mechanism for doing so readily at hand.
The Supreme Court bases its decisions on “the intentions of the founders” in order to determine constitutionality. The Constitution, the Bill of Rights, Declaration of Independence, The Federation Papers, and the other writings of the founders are all at the heart of how the country is meant to proceed and what is and isn’t legal.
And that the government is barred from subscribing to any religion in the First Amendment is certainly true, and certainly law. And the reasoning for that law is the above quote; The government is required to only persecute that which can be shown to harm any other person beyond their sensibilities.
Good thing we’re a republic and not a pure democracy then, isn’t it ? The majority can’t do whatever the hell it wants to a minority.
Oh, garbage. Opposition to murder is based on the desire not to get killed. Religion is far more likely to excuse and promote murder, instead of oppose it; 9-11 comes to mind.
That lack of a compelling state interest in forbidding same sex marriage, just as there is none for forbidding interracial marriage ?
What you are essentially saying is that we should not follow the principles and directives outlined in the laws. So if we pass a law saying “you can’t murder” and then some guy offs a Holocaust denier, and the people all say “oh, shit, we forgot to add that it’s okay to kill Holocaust denier! That’s what we really meant all along because that isn’t actually murder!” that its their intent, rather than the plain principle of the law that matters.
As I said, the price of writing broad principles into a law is that sometimes applying those principles has effects the authors did not realize at the time. I’ve stated this point several times now, and you’ve either ignored it or pretended that I was talking about something else.
No, I’m not saying that and I can’t possibly imagine how you thought I did. Actaully, that’s more aligned with what you are saying, since you’re trying to interpret something into the law that was neither put there by the drafters back in the day, but seems to be desired by some small subset of the people now.
So what? Prove to me that there is some broad principle in the constitution that demands that states recognize SSM. And be sure that your proof takes into consideration the “broad principles” inherent in the 10th amendment, too.
This past Sunday, the Gospel Doctrines class at my church discussed one case of intermarriage that’s in the Bible. Nobody in the Biblical story concerned considered the marriage to be invalid.
Isn’t it the case that poll results at the time of Loving showed a population more opposed to interracial marriage in the United States than is currently the case for same-sex marriage?
Did the SCOTUS ever rule on racially discriminatory marriage laws prior to *Loving *(and after the passage of the 14th amendment)? I don’t think so. However, even in Loving the court argued that there is no clear evidence that the Congress which voted on the 14th amendment intended it to allow anti-miscegenation laws: