I disagree that either of these has any bearing on gay marriage. Romer stands for the proposition that a group cannot be stripped of any protections; lawrence stands for the proposition that the cops cannot invade your privacy to convict you for your sexual practices.
I agree with you that the terseness of these sorts of dismissals leads to confusion. Gay activists tend to insist that Baker has no precedential value, even though it does. I see the supreme court meaning more or less there is no violation of federal right when they say no federal question.
I can answer your question on common law, not to say I have cites handy. The states have always recognized common law marriages validly formed in other states.
As far as Ohio’s amendment, my claim is that it is unprecedented to refuse to recognize a marriage in another state BEFORE the gay marriage issue. Which I admit I haven’t researched, so could be wrong. it was never an issue in my experience; I never handled a case where anyone said we’re not going to recognize this marriage from another state.
The Canadian Supreme Court. If the American Supreme Court ends up not agreeing, then they’ll have made a mistake. A mistake they can legally rationalize, no doubt, but still a mistake.
You 14th Amendment looks on point to me. I’m disinclined to look for ways to have to explain why you should be treating your citizens equally and fairly. I know that current American law (in most states, anyway, and not at the Federal level) has not reached the necessary stage for this particular form of equal treatment, and is grinding along at its slow pace. I look forward to them eventually coming to the just and correct conclusion.
Well, I don’t think marriage is mentioned in your constitution, but “equal protection of the laws” is, so I guess a conflict was inevitable.
With younger people being more casually accepting of gay rights and older people gradually dying off, I guess we shall see.
So far as I am aware, the Canadian Supreme Court interpreted Canadian law. And I am sure they did a bang up job of it.
But the US Supreme Court and the inferior federal courts that sit below it do not look to Canadian law as an authority.
I don’t know how things work in Canada, but here, the courts are supposed to interpret the written law, not decide for themselves what constitutes wise, fair, equal policy.
While our supreme law does indeed refer to “equal protection of the laws,” that phrase has a framework. We don’t treat convicted prisoners equally, for example. We allow the law to define two classes of people, and treat those two classes unequally.
You’re arguing for a change in the law. In the United States, that should come from the legislature.
Well, a useful example, then. Anyway, I’m sure an eventual SCOTUS pro-SSM decision will rely on American legal precedents and thus be legally justifiable, as an eventual SCOTUS anti-SSM decision will be. Heck, I assume the majority and dissenting opinions will both have oodles of supporting law and the issue will just come down to how the nine cast their votes. I get it - gay marriage could be legalized or it could be outlawed and either outcome can be justified.
It is only my humble opinion (well, me and the SCC, who no doubt studied the relevant precedent for its decision) that one outcome is fair and the other is not.
For the most part, pretty well, thank you.
Sure, you legally can treat homosexuals unequally. Why do you want to?
It should, but it sometimes does not. Ref: Brown, Loving, Lawrence… It’s my understanding that periodically striking down laws is part of the judiciary’s function, and that (along with executive veto) is what keeps the legislature in check.
But let me offer you an extreme example. Let’s assume I show up in Clarence Thomas’ house about 2:00 AM with a severed horse’s head, tape his mouth shut, and explain to him that if he votes against SSM, he and his wife are next.
And sure enough, the Court’s decision is 5-4, with legal scholars around the country shocked that Thomas joined the major to find SSM is required by Equal Protection… a just and fair outcome, yes?
But would you have any concerns about this process?
Yes, but.
When the judiciary strikes down laws, they are supposedly doing so because those laws conflict with the Constitution.
When the judiciary takes the same Constitution that has existed since 1789, or 1867, and declares that even though no one has changed a single word, no one has added even a single comma, the meaning of the words have changed dramatically… then the judiciary is moving away from their correct function and turning into a super-legislature, a body of wise philosopher-kings who decide what’s best for the country even if the majority doesn’t know it yet.
I agree that the outcome of same-sex marriage is both just and fair.
But I worry about reaching a just and fair result by an improper method.
But, if in the course of 200 years, a condition which was long considered a mental illness and to have a corrupting moral influence is now considered a simple matter of biology with no “illness” associated with it, then does it not make sense to interpret the constitution in a way that reflects that knowledge? Knowledge that simply wasn’t available to our earlier citizens?
Imagine that our constitution had been written in the 16th century, when many Western Europeans believed in witches and witchcraft. Would it be wrong for an 18th century judiciary to overturn laws which condoned the killing of someone for practicing witchcraft even if much of the citizenry still believed witchcraft to exist?
This is an O.P. that concerns American case law. While it is true that the opinions of foreign courts are occasionally raised in Supreme Court arguments, their value is of little weight. They can be viewed as persuasive, but I doubt that the court will look to foreign courts when it has adequate precedent in it’s own body of jurisprudence.
A circular argument. The 14th amendment itself asks the question of whether a fundamental right exists. It is not the source of the right, or the source that protects the right. It just makes sure that people in similar situations are treated equally under the law, unless of course a valid governmental reason exists to not do so.
See above
There is also a trend that young people have more liberal views (in every generation) and when they grow older, their views often shift in a more conservative direction.
Add to that a declining birthrate, so that new pro-gay voters are added at a slower and slower rate, I am confident that it will be a long time before the 31 change their minds. We shall see.
Who says we want to? It would only be unequal if they can be shown to have the right, which has not been adequately done.
State courts have held that their state constitutions demand the recognition of such a right. So far, no court has yet said, per se, that gays have a fundamental right to marry under the federal constitution.
I have no problem with states recognizing gay marriage or not as they will. I do have a problem with a federal mandate that all states have to have gay marriage.
In my view, since we are dealing with an institution that has been seen as fundamental, some caution is warranted. We know that changes in the concept of marriage has resulted in fewer marriages or increased divorce in the past, or both.
Since this is a change in the concept of marriage, we should be viewing this an experiment.
Gays want to do a few two or three year studies and proclaim “no problem.” But when I was in school, my sociology professor pointed out time and again that major changes in social structure need a minimum of two generations of study before we can have any real confidence as to what impact it has. At this point, the studies of gay marriage are premature in my view.
No-one can say they know one way or the other that gay marriage will or will not have a serious harmful impact on the state of marriage.
While you can label me as a hateful enemy of gays, that is hardly the case. I would be wholly against it if on the other hand the supreme court were to rule that no state can have gay marriage.
I like it the way it is now; with a few states engaging in the experiment and most states showing concern. This is the beauty of the American system, that we have a system where the states that desire to can engage in social experiments and others can wait and see what happens. I do not have a deaf ear to gays; but neither do I have a deaf ear to those against it.
Well… if it’s Thomas…
I don’t get the point of the hypothetical. Attempting to coerce a government official, or bribe them, or otherwise improperly influence them, is something I trust we can agree is bad. Even though I’d agree with this particular outcome, this just encourages the same method being used against another Justice (or Thomas again, for that matter) to a result I wouldn’t agree with.
That said, it wouldn’t surprise me if there’d been a Justice who, on some issue, let his or her vote be determined by a coin-flip or other arbitrary means.
Thing is, I don’t see that the meanings of the words have changed that much - it’s just there were (and I guess still are) a number of unspoken understandings that the protections just didn’t apply to some kinds of people (or perhaps more accurately, that prior to the 14th, the Federal Government was sharply limited in what it could outlaw, but the state governments were not and thus could draw all kinds of exclusionary lines). For example, the Constitution refers to the rights of “citizens”, but that apparently didn’t include women until the more enlightened 20th century (well after the 14th was ratified, I should add) decided it did. In fact overall, the trend has been one of expanding interpretation of the word “citizen” from a time when it was casually accepted to only mean white Christian males to, I dunno… all Americans.
As far as I can tell, the moment the 14th was ratified, that should have legalized gay marriage on the spot. It should also have given women the vote, nullified all bans on interracial marriage, indeed nullified all state laws based on race or gender. The fact that it didn’t just means that “person” and “citizen” (words that appear frequently in the text of the 14th) were understood to not apply to all Americans.
I don’t see the dramatic re-interpretation you imply - just that what was exclusive, citizenship/personhood, is now inclusive to a degree I’m sure would have shocked the Founders, who I’d guess weren’t expecting to be bumping elbows with women and darkies at the polls.
In any case, I get that the Constitution itself is the broad guideline of government, hence most amendments (starting with the 13th, I guess) throw in language to the effect of “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” It is clearly intended that the nitty-gritty details of how a constitutional protection is applied is (typically) up the legislature, with the occasional whip-crack of the judiciary telling them a particular application is contrary to the letter and/or spirit of the constitution.
It shouldn’t be the case that laws have to be struck down in this manner. Ideally the legislature would repeal laws that make distinctions among citizens for the express purpose of treating them unequally when no real reason for such treatment exists, but legislatures are notoriously resistant of such actions, even passing laws to formalize and increase the inequality when it starts to look like that inequality is threatened. It’s understandable - unlike the “body of wise philosopher-kings”, legislators live in constant fear of not getting re-elected, and voters by-and-large just love inequalities, or at least more than homilies like “and justice for all”, which many Americans can recite by rote but otherwise pay little mind to.
The legislators, collectively, do have their trump card, though - they could ratify another amendment. Any given week, gay marriage could be permanently banned (or at least as permanently as amendments get, Ref. the 18th) from the U.S., and there won’t be anything the “philosopher-kings” could do about it.
Well, blackmail and horse-heads notwithstanding, I guess we’ll have to disagree on how this is “improper”. I recognize the importance of the legislature, in your country and mine, but I have a small and permanent amount of distrust in it, and I’m glad for the occasional (and only occasional) intervention of what I’d called “learned elders” (rather than “philosopher-kings”) to tell the legislature what it can’t do. And if what they’re saying the legislature can’t do is treat citizens unequally without a damned good reason, I’m by default in favour.
Not really - that would suggest no overall progress is being made. I see the Americans gradually (if grudgingly) sliding toward equal treatment of its citizens, in what I’ll assume the wording of the 14th intends, even if the people who actually ratified it in 1868 had no idea it would be applied in this way.
I cheerfully admit the significance of “source” escapes me, but in any case I’m still waiting for someone to explain what “valid government reason exists” in this case. I get that they can legally ban gay marriage - I just don’t get why they should or, beyond some kind of homophobia or as a sop to the homophobia of the voters, why they want to.
Do you consider this something worth… celebrating? Something just and fair and desirable? If so, we’ll have to disagree.
I thought your point was 31 states really really really wanted to.
Well, perhaps I’m more eager to push for equal treatment under the law than you, or 31 of your states, or something.
Well, I’m not going to argue that you don’t have the right to have that problem.
Well, this is where you start to lose me, suggesting without foundation that gay marriage will cause or accelerate the problems you see in the institution of marriage.
And you have the right to that view. I just don’t agree the “concept” of marriage is being changed in any significant way, any more than the concept of voting changed when it was extended to women. Oh, no, there will be two penises involved! Or two vaginas! … how horrible, shocking… whatever… oh no… the horror, the horror…
(I’m attempting by the above use of ellipses to suggest lack of affect, in case that was unclear)
By that argument, nothing can be done, ever. It’s been only two generations since Brown, right? Maybe three? Perhaps serious harmful impact on the state of education is just around the corner and you should pre-emptively resegregate the schools just to be safe.
More recently, American 18 year-olds got the vote. Oh, no…! Chaos could hit at any moment…! Upheaval, destruction… dogs and cats, living together… mass hysteria… oh, no…
(The gist is that I find your concerns less-than-compelling)
As far as I can tell, at most, you’re an impediment to gays, kind of a passive speed-bump on the road to equality. Has your particular state held any referendum votes on the issue and if so did you vote against gay marriage? Have you donated time or money to any anti-SSM campaigns? That’s when you start sliding into being hateful.
Well, the beauty of the Canadian system is that we didn’t waste time dicking around like that. Once same-sex couples got legal rights and benefits in 1999, the hop to actual gay marriage (first in most of the provinces, ultimately approved by the Feds) came in 2005. If our nearly-seven-year “experiment” with no negative results doesn’t suggest anything to you, I have my doubts that you are seriously interested in “studying” (as opposed to just “delaying”) the issue.
It is undeniably clear that you have no understanding of American Constitutional law, and the principles involved, or any particular knowledge of the fourteenth amendment, nor do you show any slightest inclination to learn about them.
You have utterly failed to establish that there is any gay right to marriage under the federal constitution, have no precedent to suggest, just a mindless conviction that you’re right and by golly I should accept that on your say-so alone. 10,000 gay activists can’t be wrong, now can they?
As I suggested before, Please consider starting a “Gay Marriage is undeniably Good and we must Have It Immediately everywhere with no thoughtful reflection” thread. This is not it.
My state does not have initiative. Kansas is one of the thirty-one states that ban gay marriage in it’s constitution. We do have referendum, where the legislature proposes a law or amendment to the constitution and the people vote on it. 70% of voters approved the ban.
Six months or so before my state senator had asked me what I thought on the issue, and I told him about what I’ve told you here. He voted for it. Personally, I told him I wanted the referendum.
I did not vote in that election. I had broken my back three weeks earlier and in another part of the state than where I was registered. I was in a great deal of pain and did not have much of anything beyond praying for relief on my mind.
I’ve never donated to any anti-gay marriage group and in fact, in the 90’s twice donated to gay rights groups in general issues. Do you not grasp that I’m a Libertarian? As a Libertarian activist our paths have crossed with gay activists, and I assure the friends I made then are my friends now. Knowing me personally (rather than spewing invective at anyone who disagrees) allows them to know I do not have “hate fags” as a motivation.
As I consider your posts beyond any real discussion of the legal issues involved, I am calling them a highjack of the thread and am not responding to any further posts of yours.
It does violence to our notions of self-government, John. If the judiciary can substitute its judgement on the wisdom of a law for the legislature, then they have become the super-legislature.
Like it or not, a sovereign nation has the power to put people to death for practicing witchcraft. I don’t like the idea of putting people to death for any reason, much less witchcraft, but the sine qua non of sovereignty is the power to create and impose a legal system.
That change – abolishing laws against witchcraft – has to come from the legislature. Or the claim that the people, through their elected representatives, hold the reins of government is simply a fiction.
Those are all good points, and I am certainly on record here as being strongly behind the idea of self-government being paramount. However, I’m thinking of the role of the judiciary here. If their role is to determine what constitutes a protected or suspect class, shouldn’t they use science to do that?
But perhaps you don’t think that should be the role of the judiciary. Frankly, I’m not so sure myself.
ETA: Can you comment on post #96? You might be one of the few posters here who could answer that question.
If a state made laws against witchcraft, or it’s modern name, wicca, and the Supreme Court struck it down as a violation of first amendment religious freedom, wouldn’t you agree with that?
Oh, I don’t think you can correctly draw any of those conclusions. I’m merely an educated layman, to be sure, but I think I have a fair handle on the processes involved, including the use of legal categories and legal prongs and whatnot. I merely don’t care as much about wading into the legal minutiae to find a justification for a particular position.
Actually, looking down your post, I can see a few misplaced assumptions.
You assume I’ve given this issue no serious thought or reflection? Please. That’s a rather pathetic and obvious attempt at dismissal. Suppose I’d mulled the issue over for a year before coming to my current position? Or five years? Or ten? You have no way of knowing, but by the standard you’re proposing any timespan less than two generations is not enough to evaluate the potential risks.
I wouldn’t have, myself. I don’t think civil rights should be a majority-rule situation, and I believe I cite historical example in support. I’m not keen on direct votes for constitutional amendments, either, but that’s a more general issue. It’s been tried twice in my province in my life, and it wasn’t fun either time.
I hadn’t grasped anything about you. It’s not like I keep a Doper scorecard.
Well, you invited me to label you “a hateful enemy of gays”, and I declined, instead describing certain conditions that would make me reconsider. Then you got all indignant. Yes, I guess it’s best that you take a break from me.
To be fair, and since I was the creator of that hypothetical, let’s just say that a US Constitution written in the 16th century would not have had a clause protecting religious freedom.
But you’re right about laws written under the actual US constitution.
Do they? Does SCOTUS hold hearings akin to congressional testimony where experts are invited to offer up opinions and demonstrations on the current state of science? Just looking over the recent activities of the subcommittee of Research and Science Education, to pull one promising-sounding example, shows testimony from witnesses in the scientific community. I assume other committees do the same, to various degrees. Does SCOTUS have the time or resources to pursue independent scientific inquiry?
Just curious. I can see why they would not, limiting themselves to purely legal arguments.