Here’s a quiz: the Fourteenth Amendment says what was quoted above…
Why was the Nineteenth Amendment necessary to give women the right to vote? Why didn’t the women simply point at the Fourteenth Amendment and say, “Hey, I’m a person, and the Fourteenth Amendment says I have to get due process!”
I know that **Bricker **will have a more legalistic argument to make about “substantive due process” and the 14th amendment, but this is the way I look at it. If the 14th amendment had included wording explicitly listing SSM as one of the rights that could not be infringed upon, does anyone here honestly think it would have passed? Of course not. So, it can be assumed that neither the writers nor the voters considered that to be part of the amendment.
Now, if times have changed and we currently want to enshrine the right to SSM in the law, then let’s do so explicitly and legislatively.
After Brown, the country COULD have tried to pass a constitutional ammendment to enshrine seperate by equal in the constitution. But anyone with half a brain would have realized that the country, as a whole, had moved beyond the desire to do so, and that it would never fly. Ask yourself, though, if that is the case for SSM in the year 2005.
Of course not everyone who does not agree with SSM has a bigoted hatred of gays. Some only have a bigoted dislike, or a bigoted distaste for gays. Hatred may have taken it too far.
But there is a huge difference between “people who don’t like things” and “people who will go through the trouble of amending the Constitution to deny a fundamental right to homosexuals”. I don’t like brussel sprouts, but I’m not going to try and make them illegal.
Unless, of course, you had enough people to create this wonderful thing called a Constitution. And they could include in that document checks and balances to protect minorities from the tyranny of the majority. That way, the will of the majority is not the end all be all in determinations of what is right or Constitutional. And maybe a system that requires a judiciary to determine whether legislation has a rational basis. That might help too. If only there existed such a fanciful government.
Damn those gays for trying to exercise their rights!!! This backlash will show those uppity homosexuals real good!!!
Blaming homosexual advocates for the backlash by the right for pursuing their claims in the judicial system is inane.
Hamlet: Listen carefully. The will of 2/3s each of the House and the Senate, and of 3/4s of the states, is ABSOLUTELY DETERMINATIVE OF CONSTITUTIONALITY.
That is the way this “fanciful government” works.
I read the “Due process of law” bit as only applying to the State’s right to deprive a person of certain things. The “equal protection” part, from the quoted bit above, comes with no such caveat. It seems pretty absolute to me, and that’s the bit the Californian judgement seems to hinge on. But IANAL, nor am I American. Our constitution has less murky waters:
(bolding mine)
Just to nitpick, but I think phatlewt, in quoting the 14th amendment, was making an equal protection argument, not a due process argument.
And the answer, of course, is that the court decided otherwise in Minor v. Happersett, saying that there was no Constitutional right to vote.
Such a government is, in fact, fanciful. If enough people wanted to vote for a constitutional amendment denying voter rights to redheads, every judge in the land banding together couldn’t stop it. This country absolutely is ruled by “the tyrany of the majority”-- it’s just that we limit that tyrany to a super-majority.
Nice strawman. Can you show me where I “blamed” anyone? I just made a simple prediction and weighed in on the wisdom of a given tactic.
No shit. Doesn’t change the fact that the Constitution protects the minorities from the tyranny of the majority. It just doesn’t protect them from the tyranny of the super-majority.
Good grief: how do you think it gets decided what majorities can or cannot do to minorities? At some point, the constitution has to be decided upon, and there’s no way to do it other than some sort of… majority making the decision.
Did I miss the memo that it’s State the Irrelevant and Obvious Facts Learned in High School Civics Class day today?
Well it is apparent by now that noone is going to try to give any rational arguments against SSM itself. In order to get with the current debate I will ask:
Could a SSM ban get 2/3 of both the House and the Senate?
I think 2/3 of either would be out of reach, but that’s just my guess.
And let’s not forget the 18th and 21st amendments, it’s not over till it’s over.
I’m not particularly frightened at the prospect of a constitutional gay marriage ban. Well, that’s not entirely true: I’d like to think that there are enough people in this country with the ethics, decency, and simple cognitive skills to make any such ammendment impossible to pass, and the possibility that I’m wrong scares the crap out of me. But not to the extent that it makes me think that attempts to use the courts to bring about SSM is a bad idea. It’s the best chance there is of winning this right in my lifetime.
As has been pointed out, most Americans support domestic partnership benefits for gay couples. I don’t think a constitutional ban is going to pass muster if it’s as broad as some of the filth that’s been voted into some state constitutions. The worst it will do is specifically define marriage as between one man and one woman. Which is exactly the situation we were in before this became a national issue. Gays will have lost nothing, except our best shot at resolving the issue quickly. Instead, it will make the battle for equal rights a long, drawn out, brutal, state-by-state slog. Which, as far as I can tell, is exactly the solution Bricker and John Mace are suggesting: take the issue to each individual state and try to legislate for these rights.
Wether we’re going to all fifty states and fighting the same battle to repeal a cruel and unjust Constitutional ammendment, or goint to all fifty states and fighting fifty different battles to get those rights enshrined in each individual state’s constitutions does not seem to make too much of a difference to me. Either way, I’m not likely to live long enough to see the outcome. Which will, in the end, be a victory for us, sooner or later. Make no mistake, we’re not ever going to stop fighting for this. We’re talking about getting basic respect and recognition as human beings, here. That’s not really something you just give up on. Eventually, we’ll get marriage rights simply to shut us the hell up.
We’ve got a chance, a very small chance, to see this issue resolved within a decade. If we don’t take that chance, we’re still going to be arguing about this two hundred years from now. If we take that chance and fail, we’re still going to be arguing about this two hundred years from now. Why not take that chance?
There’s a reason for that…
Your start date says March '05, so unless you’ve been lurking for a long time, you probably don’t know that there have been dozens of these types of threads in the past, including one in which it was asked if there was a non-religious justification to be against SSM. That one was essentially the same as what you were trying to do here.
Depends. I think it would definitely happen if the SCOTUS ruled that the constitution required all states to accept SSM. It might also happen if enough state supreme courts ruled as the MA court did. What’s “enough”? Not too sure, but if CA and NY went the way of MA, there might be enough momentum to support a federal anti-SSM amendment.
Lacking either of those events, I don’t think an anti-SSM federal amendment would get thru Congress.
If you have a second, please refresh my memory as to those reasons.
This brings up an interesting question. Let’s say, for the sake of argument, that California and/or New York pass legislation legalizing gay marriage. Do you really think that would not generate exactly the same backlash as legalizing it through “judicial activism?”
I don’t recall that there were any. I wanted to point out to the OP that (s)he wasn’t starting some new debate.
Still, there are clearly people who don’t think homosexuality is a sin, but who still don’t support SSM. I suspect that those people can’t reconcile the idea that same sex love can be of the same nature as opposite sex love. As I’ve said in other threads, it’s not intutively obvious that it is. Remember, it wasn’t that long ago that homosexuality was considered a psychological disorder. BTW, I’m not trying to justify opposition to SSM, I’m just trying to explain it.
You’re correct, I’ve been lurking for only about 2 weeks. I figured there must have been a related debate; but like I mentioned in the OP, thought this ruling was justification enough for another one. (I know I am guilty of run-on sentences, my wife tells me all the time.)
Another legal question for you: Let’s say “enough” (whatever that turns out to be) states grant SSM, and support for a constitutional ban grows. But 3/4 of the states have to ratify the ban. So if 1/4 + 1 states (13 or 14 depending on how you round) pass SSM laws, then it couldn’t be banned? It that correct?
Of course, I realize that 13 or 14 states is a huge number in this discussion.
Because the Court at that time had not yet decided that certain rights are so fundamental that no special Constitutional protection for them is required?
No, because even though CA and NY might be more liberal than the rest of the country, neither state is THAT much more liberal. If a majority of CA and NY residents apporved of SSM, I doubt you’d find that the rest of the country was so different that the required super majority would exist to pass the amendment.
I think it would be more likely that a few smaller states would go the way of MA rather than CA and NY. That’s why I picked those two examples-- they represent a significant % of the population of the country.