Are they now out of arguments for gay marriage ban?

[John_Mace]

@50million

You’re correct, I’ve been lurking for only about 2 weeks.

I thought that was the case, and was confused by how you started your OP:

@50million

I haven’t seen this topic dicussed in GD for a while…

BTW, if you join, you’ll have the added benefit of being able to search the archived threads. There’s la lot of good stuff there!

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?
[/QUOTE]

Well, it probably WOULDN’T pass, given that a critical mass of states had already approved it on the state level, but it COULD pass, and then it would invalidate the state provisions.

The real problem with constiutional amendments, either at the state or federal level, is that they’re pretty hard to get rid of once they pass. That’s the main reason I think pursuing the judicial route for SSM is a bad tactic. The country just isn’t ready, and much of the benefit of marriage could be obtained thru civil unions (such as the law that tood effect in CA this year).

[Miller]

@John Mace

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.

Okay, let’s assume that this legislation passes because California and New York continue to become more progressive, while the rest of the country stays where it is. What then?

[John_Mace]

@Miller

Okay, let’s assume that this legislation passes because California and New York continue to become more progressive, while the rest of the country stays where it is. What then?

Yeah, there will probably always be SOME people who will want to pass an anti-SSM constitutional amendment. But I don’t understand the point of a question that boils down to: If the country were different than it acually is, wouldn’t things be different than they are? Of course things would be different.

[Miller]

The point is, the prophesied backlash has nothing to do with “judicial activism,” and everything to do with simple bigotry. Any success we win in the struggle is going to trigger a backlash. The fact that we’re trying to get equal rights at all is triggering a backlash. So why not go for the avenue of attack that has the best chance (which is still slim-to-none, I admit) of getting us what we want within most of our life times?

[villa]

@Bricker

When a judge decides that a particular method of searching is reasonable or unreasonable, he is doing his job - interpreting the words of the Constitution. When a judge uses the words of the Constitution to create a result manifestly not intended by the authors, he is intruding upon the province of the legislature.

When a judge finds that there is a due process requirement for the government to permit same-sex marriage, he is stretching the language of the Due Process clause. When a judge interprets a particular search as being reasonable, he is simply using the words of the Fourth Amendment.

Does the distinction make sense?

I like to think the authors were smart enough to use particular words for particular purposes. And that they realized they were not writing simply a series of rules, but instead a set of principles to be used to address hard cases. Hence they did not simply set out a list of things that can be done and things that can’t but used terms which in and of themselves are not amenable to simple definition. Such as ‘due process of law.’

I believe (as does Ronald Dworkin, who explains it so much better than I possibly can) that the founders intended judges to engage in exactly these kind of considerations - to see how the general principles laid down in the constitution apply to situations that they could not forsee. They were not arrogant enough to assume they could predict and deal with every actuality. Leaving the determination of individual rights to the majoritarian legislature (as opposed to the super-majoritarian amendment process) was certainly not what the founders had in mind - it flies in the face of the very purpose of a Bill of Rights. What many sneeringly call judicial activism simply is the original intent of the framers, under this view. Freezing protections at a given snap shot in time is utterly contrary to original intent.

[Guinastasia]

I thought this was the judge interpreting the California STATE constitution, not the US Constitution. Am I wrong?

[John_Mace]

@Miller

The point is, the prophesied backlash has nothing to do with “judicial activism,” and everything to do with simple bigotry.

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.

Any success we win in the struggle is going to trigger a backlash. The fact that we’re trying to get equal rights at all is triggering a backlash. So why not go for the avenue of attack that has the best chance (which is still slim-to-none, I admit) of getting us what we want within most of our life times?

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.

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.

[John_Mace]

@Guinastasia

I thought this was the judge interpreting the California STATE constitution, not the US Constitution. Am I wrong?

This particular case is, but much of this debate is about the larger, federal issue. As for the CA state constitution, is there a significant difference* between it and the federal version wrt this issue? And do you think a state constitutional amendment to ban SSM, if put to the appropriate vote, wouldn’t pass?

*the claim was made in the MA case that the MA state constitution had a stricter defintion of equal protection than the federal comstitution did.

[Gorsnak]

@John Mace

This particular case is, but much of this debate is about the larger, federal issue. As for the CA state constitution, is there a significant difference* between it and the federal version wrt this issue?

Doesn’t look like it. The relevant bit is this:

@CA Constitution

A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws

The decision(nasty pdf) indicates that the finding is based on equal protection. I haven’t read past the second page yet, so I can’t say anything more.

[BrainGlutton]

@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.

But the phrase “judicial activism,” as it is commonly used, is generally applied to any significant judicial intrusion into public policy decisions. (Well, to any such intrusion the person using the phrase dislikes.) Court-ordered busing – which often involved judges handing down very detailed instructions as to what children would attend what schools – is often cited as a classic example of it. By what logic could anyone say that court-ordered busing is “judicial activism” but the Brown decision is not?

@Bricker

When a judge decides that a particular method of searching is reasonable or unreasonable, he is doing his job - interpreting the words of the Constitution. When a judge uses the words of the Constitution to create a result manifestly not intended by the authors, he is intruding upon the province of the legislature.

When a judge finds that there is a due process requirement for the government to permit same-sex marriage, he is stretching the language of the Due Process clause. When a judge interprets a particular search as being reasonable, he is simply using the words of the Fourth Amendment.

Does the distinction make sense?

No, because it is based on an unstated assumption that “originalism” is the only legitimate principle of constitutional interpretation. That itself is not an established principle of constitutional law, and there are persuasive arguments against it. From http://en.wikipedia.org/wiki/Originalism:

Arguments opposed

The Founding Fathers were not originalists. How can you try to follow their views when they were opposed to that?

The large group of people who drafted and ratified the constitution don’t have a single original intent.

Constitutions are meant to endure over time and their interpretation must be flexible and responsive to changing circumstances.

Originalism allows the “dead hand” of prior generations to control the outcome of important contemporary issues.

The original intention or meaning of particular constitutional provisions can be understood at different levels of generality and the choice among such levels is arbitrary. For example, the US Constitution states “Representatives … shall be apportioned among the several States”. Clearly at the time the document was written and ratified, this referred to the thirteen states then in existence. But many new states have since been added; surely the understanding must be updated to include these. But if we can change the meaning of “the several States” with the times, why not other phrases like “cruel and unusual punishment”?

Furthermore, when you begin this discussion with a preconceived idea about what the Framers “intended,” you are intruding upon the province of the judiciary. They have the authority to make a definitive ruling on that question; you don’t.

[Gorsnak]

Synopsis of decision (link two posts up):

Appropriate test: strict scrutiny (see below); however, ssm ban would fail even rational basis test.

RB test failed because (1) mere tradition in absence of supporting reasons doesn’t constitute rational basis (Perez v. Sharp cited as precedent, 1948 CA SC decision overturning antimiscegenation law), (2) giving same-sex couples marriage-like status doesn’t do anything to make denying marriage any more rational, and (3) the purpose of marriage is not procreation in the eyes of the law (various caselaw regarding annulments on grounds of infertility cited, said precedents being decided on the basis of concealment of infertility, etc, rather than the infertility itself).

One wonders if this aspect of the decision would have come out differently if the State had advanced something slightly more compelling. Not that there is anything much better, but there are a few things that at least look like arguments, unlike what the State evidently advanced. Anyways, it’s moot if we’re moving to strict scrutiny anyways. Back to the synopsis.

Strict scrutiny is employed because (1) the marriage laws rely on gender classifications, which are suspect, and (2) fundamental rights are implicated. The gender classification finding is based on a direct analogy to antimiscegenation cases. The failure of the law to pass the rational basis test entails that it also fails the strict scrutiny test, but the decision notes that even if procreation were granted to be a purpose of marriage, denying marriage rights wouldn’t be strictly tailored to advancing that purpose.

I’d quote the relevant bits, but this particular pdf isn’t supporting cutting and pasting, and I don’t feel like transcribing. It’s a pretty quick read, though. Interested parties may as well take a closer look. I’m pretty sure Bricker et al won’t be much impressed, since the decision relies largely on a battery of arguments I’ve advanced on the topic myself, and those haven’t been seen as compelling.

[BrainGlutton]

@Kimstu

Not really, not to me at least. It just seems to me that one person’s “interpretation” is another person’s “stretched language”, and there’s no clear way to distinguish between “interpreting” the laws and “creating unintended results” from them.

@Bricker

There is a clear way. There is a doctrine called ‘substantive due process’. Do you understand what I mean when I say that?

“Substantive due process” is the doctrine that due process of law “must include limits not only on how people are put on trial (procedures), but also limits on what kind of control majorities can have over minorities and individuals (substance).” (http://en.wikipedia.org/wiki/Substantive_due_process#Substantive_Due_Process) It is what makes it possible for the courts to consider such questions as the constitutionality of SSM bans in the first place.

:dubious: But that doctrine, by itself, does not provide any “clear way” to distinguish “interpreting” the laws from “creating unintended results.”

[BrainGlutton]

@Bricker

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!”

Susan B. Anthony tried that argument; it didn’t fly. That’s why the 19th Amendment was necessary. But if there were some way for that question to be brought before an American court today, any court in the land would almost certainly reach a contrary ruling. The courts, like society as a whole, are capable of changing their views over time.

[Sample_the_Dog]

I just gotta say, I get a kick out of the people who want to restrict marriage now calling themselves “pro-marriage”.

As a conservative (I hate the term, but what can you do?) I believe that rights reside with the individual, and state intervention should be as limited as possible. The anti-SSM crowd are, in my experience, by and large, supporters of big government who clothe themselves in conservative language.

Marriage, after all, is the last bastion of church/state intermixture, whether most folks care to admit it or not. Let the churches do what they will. Let them deny sanctification of gay marriage, interracial marriage, interdenominational marriage, whatever. But I say, let’s get the state out of the marriage game altogether. Make them all civil unions in the eyes of the state.

One good thing about SSM is it reduces the need for unnecessary laws. Without SSM, we’re going to have to create a plethora of laws to deal with visitation and inheritance rights and ten dozen other niggling details.

As for “activist judges”, it’s a meaningless phrase. There are judicial findings that are within the bounds of law, and those that aren’t. And that’s about it. In the cited article, an opponent bemoans how one judge can change the law for everyone. But of course, that’s not what’s happening. If that were the case, this would already be a done deal. But it’s not a done deal.

All I know is, when I cuddle up with my wife tonight – which I should have done hours ago – I won’t be thinking about who’s cuddling with whom next door or down the block or in the next county. My marriage is not threatened.

I say, to hell with Francis Scott Key… the National Anthem of this nation should be a tune penned by the immortal Hank Williams Sr. – “Mind Your Own Business”.

“Cause if you mind your business, you sure won’t be minding mine.”

[BrainGlutton]

@John Mace

And do you think a state constitutional amendment to ban SSM, if put to the appropriate vote, wouldn’t pass?

What, in California? I think it would be a really close vote. Do you know of any California public-opinion polls that suggest otherwise?

[David_Simmons]

@BrainGlutton

Susan B. Anthony tried that argument; it didn’t fly. That’s why the 19th Amendment was necessary. But if there were some way for that question to be brought before an American court today, any court in the land would almost certainly reach a contrary ruling. The courts, like society as a whole, are capable of changing their views over time.

Ahem.

@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.

The “Mace Doctrine” requires that a minority that is denied a right wait around until the majority, in its magnanimity, grants it.

Substantive due process requires that when a right is denied to an individual, the state show a justification of some sort making that denial necessary in addition to a defined process including appeals from such denial. Justification such as for the general welfare, defense against enemies or the like.

I don’t think that denial of same sex marriage can be justified on that basis.

Why go to such things as “civil unions” which would mean development of a whole new body of court decisions as to what was included under such a scheme when there is already a body of laws and precedents as to inheritance, rights in case of illness etc. with regard to marriage?

[John_Mace]

@BrainGlutton

What, in California? I think it would be a really close vote. Do you know of any California public-opinion polls that suggest otherwise?

Yes. This one.

@DS

The “Mace Doctrine” requires that a minority that is denied a right wait around until the majority, in its magnanimity, grants it.

No, the “Mace Doctine”, such as it exists, requires that everyone play by the rules. Or, the end does not justify the means. As it stands, the majority CAN and HAS denied the right to marry to same sex couples in CA. It’s a simple matter to put this to a ballot if indeed the sentiment has changed in the last 5 yrs. But that’s actually a moot point. If the recent ruling is upheld by the SCoCA, there is no question that an anti-SSM ballot measure for a constitutional amendment will be put forth. Being a CA resident, I will vote against such a measure.

@Sample_the_Dog

As a conservative (I hate the term, but what can you do?)

Call yourself a libertarian, which is what I suspect you actually are.

[plnnr]

@Guinastasia

Wouldn’t that also mean Brown vs Board of Education of Topeka, KS was also "judicial activism?

Hell, go back to Marbury vs. Madison . That is the ultimate in judicial activism, and yet seems to be perfectly acceptable to those who decry “activist judges.”

[David_Simmons]

@John Mace

No, the “Mace Doctine”, such as it exists, requires that everyone play by the rules.

And one of the rules is that state courts decide whether or not a law meets the requirements of the state constitution.

[John_Mace]

Well, we’re going to go 'round and 'round on this one, but what the heck…

@David Simmons

And one of the rules is that state courts decide whether or not a law meets the requirements of the state constitution.

And that they do so without adding new features to the constitution.

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.