# Are they now out of arguments for gay marriage ban? **URL:** \ **Category:** Great Debates\ **Created:** [March 15, 2005, 7:02pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680 "2005-03-15T19:02:32Z")\ **Posts on this page:** 11\ **Page:** 4
**Author:** ![markdiscordia](https://avatars.discourse-cdn.com/v4/letter/m/c6cbf5/32.png) [@markdiscordia](https://boards.straightdope.com/u/markdiscordia)\ **Post date:** [March 16, 2005, 4:36pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/61 "2005-03-16T16:36:23Z")
> [@Bricker](#): > > No. Because in _Brown_, the Supreme Court was working within the historical context of the Fourteenth Amendment, which was passed to prevent invidious racial discrimination. The Fourteenth Amendment was meant to apply to racial discrimination. It’s not activist to interpret it in that light. You don’t like judges making law, but it’s perfectly okay for them to divine the intent of the dead? That won’t lead to any problems? The people who oppose gay rights have the same motives and arguments and LEADERS as those who opposed integration. Where do you think Jerry Falwell and all the pastors his age who whine about gays were in the 1950s? Standing at the pulpit shrieking about God’s judgment coming down on America if we let blacks into the same restrooms, that’s where. To pretend that there is any real difference between the two bigotries is a fiction that neither you nor your opponents actually believe. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 16, 2005, 4:41pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/62 "2005-03-16T16:41:39Z")
> [@John Mace](#): > > I actually like the way the MA court acted, with one exception. If you recall, that court did not actually mandate SSM, but tasked the legislature with making the law clear one way or the other. The only problem I had with the decision was that the timeframe for the task (about 6 months) made a constiutional amendment impossible (since that takes about 2 years). The court could have extended the time frame, and given the people the chance to express their will thru the legislative process. Which brings up the question of “Substantive due process.” The people are not free of all restraint to “express their will” in order to deny the things that supposedly available to all. Things like the right of inheritance, social security benefits, decisions about treatment of the illness of an incompetent partner and stuff along those lines. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 16, 2005, 5:02pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/63 "2005-03-16T17:02:48Z")
> [@John Mace](#): > > I actually like the way the MA court acted, with one exception. If you recall, that court did not actually mandate SSM, but tasked the legislature with making the law clear one way or the other. The only problem I had with the decision was that the timeframe for the task (about 6 months) made a constiutional amendment impossible (since that takes about 2 years). The court could have extended the time frame, and given the people the chance to express their will thru the legislative process. As I pointed out back when we did the original thread on the MA decision, **John** , the Court set a reasonable time frame for the Legislature to act, in what was excellent judicial self-restraint, in my opinion. They rendered a decision on a case brought before them, and then gave the Legislature time to act. They did not presuppose what the Legislature was going to do to act. Certainly any legislature can pass a given law, including the “first reading” of a proposed Constitutional amendment, within six months. **If** the Legislature chose to go the amend-the-constitution-to-prohibit-gay-marriage route, they could have taken the initial steps within the six-months time frame, and then asked the court to extend its stay while the amendment went through the rest of the adoption process. Giving them two years initially would be specifically buying into one solution – that they would amend the constitution. The court stayed its own hand to enable the **legislature** to decide which way to jump, if they were so inclined. It’s not at all uncommon for a court to extend a temporary injunction or a stay when there are good reasons for doing so, like something that takes time to finish. But giving the two years initially would have been as much judicial activism as doing an immediate overturn of the law, and for the same reason: it would bring a particular agenda into the judicial process. Like this: “Under the state constitution, your law limiting marriage licenses to opposite-sex couples violates the equal protection clause. But we know you _really_ don’t want to permit gay marriages, so we’ll abdicate our duty to rule on the constitutionality of the law as it stands in order to give you time to change the constitution to make the law valid.” That’s as activist as “we think gay marriages ought to be allowed, so we’re finding justification for doing so” but in the opposite direction. The six months was result-neutral, and initial adoption of a proposal to amend the constitution would have been more than sufficient grounds for the legislature to request the stay be extended – and the court would no doubt have acceded to the request. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 16, 2005, 5:03pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/64 "2005-03-16T17:03:59Z")
> [@John Mace](#): > > I think most people only recognize “judicial activism” when it impinges on their own beliefs. That does not, however, mean that judicial acitivism isn’t in play. I’m all for SSM, but not if it’s madated by judges. I want the judiciary to stick to the constitution and the intent of those who drafted it, even if it means forgoing a political gain that would favor me. SSM wouldn’t favor me, per se, but I can say the same about any number of issues that would. > > But you’re absolutely right to call hypocracy on those who claim “judical activism” when it comes to SSM, but want the courts to allow the Ten Commandments to be posted in courthouses across the country. Just keep in mind that not all of us calling out “judicial activism” fall in that category. Well, that’s not quite my point. **Bricker** has often claimed that the state constitutional ammendments that have been passed in the last few years have been reactions to judicial activism, which is an absurd claim, as the ammendments do nothing to restrict the powers of judges and instead have restricted the rights of homosexuals. Which, it seems to me, makes it pretty clear that those laws are reactions to attempts by gays to gain equal rights, and have little or nothing to do with a public distrust of judicial activism. I do respect that many people have a legitimate concern about judicial activism that is seperate from this issue. However, I don’t believe that concern is what motivates anyone on the anti-marriage side of the debate, their protestations to the contrary aside. > [@](#): > > I don’t disagree with your first sentence, and I can see where you’re coming from after that. And I’m sure it’s easier for a straight guy to be more dispassionate and analytical about the whole thing. It just seems that taking the more measured approach of fighting for civil unions first would actually get you to the end faster. Once civil unions become accepted, which I think they would be in most states, full recognition of marriage wouldn’t be too far behind. Going for SSM all at once, though, could very well close the door for a long, long time. I honestly don’t know about that. SSM has only become a national issue because we’re actually making some in-roads. The threat of SSM coming about through “judicial activism” is what’s keeping the debate on the forefront of the public consciousness, which can only help us. The more the issue is debated, the more people are going to realize that the anti-marriage side of the debate simply does not have a single compelling argument. If we were to take a more measured approach, I think that it would be too easy for many people to simply ignore the issue altogether, making it impossible to achieve any change at all. As grim as it sounds, the more draconian the anti-marriage folks become in their efforts to oppress, the quicker the moral bankruptcy of thier position will become clear, and those among their supporters who are well-meaning but ignorant about the implications of the issue (which I would like to think is most of their base) will begin to distance themselves from that side of the debate. > [@](#): > > However, in the end it really is the folks most affected who are going to call the shots. I can definitely see where someone in your shoes would not be all that keen on taking advice from me. 🙂 It’s always good to hear well-intentioned advice. Even if you plan on ignoring it entirely. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 16, 2005, 5:09pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/65 "2005-03-16T17:09:23Z")
> [@David Simmons](#): > > Which brings up the question of “Substantive due process.” The people are not free of all restraint to “express their will” in order to deny the things that supposedly available to all. Things like the right of inheritance, social security benefits, decisions about treatment of the illness of an incompetent partner and stuff along those lines. To be clear, I’m not talking about a simple majority vote in the legislature, but the necessary votes needed (depending on which state we’re talking about) to amend a state constitution. In that case, these is in fact NO restraint on the ability of the people to express their will, other than the threat of violence and/or revoltution by the minority. I think we can safely say that when the marriage laws were written, no state envisioned them applying to SS partners. And we can also safely say that time and again when the matter has been put to a vote, SSM has been voted down (or more correctly, anti-SSM laws have been voted in). Given that, how is the judge in this case reflecting “the will of the people”? There is simply no evidence that the intent of any law or clause in any constitution was meant to allow SSM. And there is AMPLE evidence that these laws and clauses were NOT meant to allow it. Consider the recent ruling by the Supreme Court concerning the execution of minors. The main argument used was that of a “growing concensus” against it. Peronsally, I thought it was a HUGE stretch to show that there was a “growing concensus”, but IIRC, you bought into the argument. How would you apply that legal reason to SSM? What do the facts tell us about what the “growing concesus” is? This kind of stuff just looks like a post hoc rationalization of a position, rather than a legal argument formed from the ground up. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 16, 2005, 5:17pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/66 "2005-03-16T17:17:49Z")
> [@John Mace](#): > > To be clear, I’m not talking about a simple majority vote in the legislature, but the necessary votes needed (depending on which state we’re talking about) to amend a state constitution. In that case, these is in fact NO restraint on the ability of the people to express their will, other than the threat of violence and/or revoltution by the minority. Arrrgh… incomplete thought process… The states do, of course, have the constraint of the federal constitution, but at the fedearl level, there is no equivalent restraint. Sorry, we keep jumping back and forth between federal and state issues here, and I’m not keeping my train of thought focused. As for the SCOTUS’s position on this matter, I doubt very seriously that they would rule in favor of SSM. The most favorable ruling you’d get would be to throw it back to the states to decide, which leaves us right where we are today. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 16, 2005, 5:22pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/67 "2005-03-16T17:22:19Z")
> [@John Mace](#): > > there is in fact NO restraint [in constitutional changes] on the ability of the people to express their will, And that’s a problem because it can have serious, unintended consequences as our prohibition amendment demonstrated, or, as you say, revolution and the associated violence. > [@](#): > > Given that, how is the judge in this case reflecting “the will of the people”? Is that really what judges are supposed to do? ---
**Author:** ![plnnr](https://avatars.discourse-cdn.com/v4/letter/p/7ea924/32.png) [@plnnr](https://boards.straightdope.com/u/plnnr)\ **Post date:** [March 16, 2005, 5:24pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/68 "2005-03-16T17:24:53Z")
> [@John Mace](#): > > As for the SCOTUS’s position on this matter, I doubt very seriously that they would rule in favor of SSM. The most favorable ruling you’d get would be to throw it back to the states to decide, which leaves us right where we are today. Which may again bring the issue back before the Court in time. If CA approves SSM through legislative action, but it remains illegal here in VA, and this occurs to varying degrees all over the country, isn’t there going to be a time when someone raises the issue of constitutionality under Article IV (the Full Faith and Credit Clause)? ---
**Author:** ![markdiscordia](https://avatars.discourse-cdn.com/v4/letter/m/c6cbf5/32.png) [@markdiscordia](https://boards.straightdope.com/u/markdiscordia)\ **Post date:** [March 16, 2005, 5:32pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/69 "2005-03-16T17:32:27Z")
> [@plnnr](#): > > Which may again bring the issue back before the Court in time. > > If CA approves SSM through legislative action, but it remains illegal here in VA, and this occurs to varying degrees all over the country, isn’t there going to be a time when someone raises the issue of constitutionality under Article IV (the Full Faith and Credit Clause)? The 1996 “Defense of Marriage Act” :rolleyes: said that states don’t have to recognize marriages performed in other states. You might think that a simple Congressional act can’t override the Constitution, but it’s been an article of appellate law that “full faith and credit” doesn’t apply to marriage ever since courts started constructing it that way to preserve laws against–you guessed it–interracial marriage. But this issue is totally not the same, right? No comparison at all even though laws against one are being used to ban the other, right? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 16, 2005, 6:48pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/70 "2005-03-16T18:48:02Z")
> [@David Simmons](#): > > And that’s a problem because it can have serious, unintended consequences as our prohibition amendment demonstrated, or, as you say, revolution and the associated violence. True, but I don’t see a better system. Do you? > [@](#): > > Is that really what judges are supposed to do? Yes. I’m defining “the will of the people” as what “the people” thru their legislators intend for the constitution to mean. Even if that goes against the moral judgements of the deciding judge. As I’ve said in other threads, I can’t imagine any judge, anywhere agreeing with 100% of the laws. Every judge has to submit his own judgment to the law at some point. If he finds the law so intolerable, he should step down from his position and start manning the barricades. ---
**Author:** ![plnnr](https://avatars.discourse-cdn.com/v4/letter/p/7ea924/32.png) [@plnnr](https://boards.straightdope.com/u/plnnr)\ **Post date:** [March 16, 2005, 7:16pm UTC](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680/71 "2005-03-16T19:16:50Z")
> [@markdiscordia](#): > > The 1996 “Defense of Marriage Act” :rolleyes: said that states don’t have to recognize marriages performed in other states. You might think that a simple Congressional act can’t override the Constitution, but it’s been an article of appellate law that “full faith and credit” doesn’t apply to marriage ever since courts started constructing it that way to preserve laws against–you guessed it–interracial marriage. > > But this issue is totally not the same, right? No comparison at all even though laws against one are being used to ban the other, right? Why would the appellate courts’ position on the application of the full faith and credit clause as it relates to inter-racial marriage mean anything when the SCOTUS said otherwise in Loving vs. Virginia? If a court bases a decision on an interpretation, and that decision is later found lacking, doesn’t that damn the interpretation as well? [Previous page](https://boards.straightdope.com/t/are-they-now-out-of-arguments-for-gay-marriage-ban/294680.md?page=3)