What part of the word CALIFORNIA do you fail to comprehend, folks?
Wanna discuss Massachusetts? Go to a thread on Massachusetts.
As to California, I’ve yet to see anyone address the simple concept that the Legislature, by provoking probable reaction through initiative, will do more harm than the good they are attempting. Anyone wish to address that concept? With respect to CALIFORNIA?
Ah, the old “Maybe in due time we can let the Negroes have equal rights, but meanwhile they’re only making things worse by pushing so hard” argument, huh? Bull. You have to push to get any real changes made, and the CA Senate seems to understand that. By keeping an issue in foreground, you make people think about it. That is the *only * way to *change * the way people think.
For the factually-impaired Bricker, here is some fresh reading material.
There’s *no * reason to believe there would be more popular support for restoring discrimination then than now. That’s the situation here. There’s no sign of the backlash you stubbornly predict here, and there’s no reason to expect one in Cali either.
Sorry, whistlepig, but the only guide to how other states will proceed is the only state that has already proceeded.
And the attitude projected by the OP in this thread?
The Mass decision was not a judicial fiat but a plain text interpretation of the state constitution.
I actually think that Bricker has it backwards. Equal Protection is a guaranteed right under the US Constitution and is not something which falls under the purvew of any leglslative body. As long as heteros have the right to marry, then same-sex couples have that right as a default under the 14th amendment. Any attempt to block that right must be struck down by judicial review and there is nothing “activist” about it. It’s their job to strike down unconstitutional laws.
It’s good that the Ca. legislature is trying to do the right thing, but it’s unfortunate that popular opinion is being allowed to interfere at all with any group’s right to be treated equally under the law. This is an issue which the people are not supposed to have any say about.
Correct, insofar as it goes. Of course, the “legitimate public policy” exception (and “legitimate” is an important part of that definition, thanks to, among other things, the interracial marriage issue … a state cannot define as “public policy” something that flies in the face of what the courts recognize as “legitimate” like anti-miscegenation or “separate but equal” racial division) is in itself debatable as the farthest thing from textualism or strict construction generally. The Constitution requires that states give “full faith and credit” and does not provide that anybody be permitted to make exceptions to it.
I seem to have Big Whistle’s name unintentionally altered in my last post, sorry. For some reason the “Pig & Whistle” pub chain came to mind.
Isn’t that a really oversimplified view of equal protection jurisprudence, though?
IMO, it really is that simple. You can’t extend special privileges to one group and exclude another group without any rational basis for doing so (and I have to see a rational basis for excluding same-sex relationships from the privileges extended to heteros. Arguments that such restrictions somehow “protect” hetero marriages are laughably contrived and never supported).
Even if you think I’m oversimplifying, I certainly don’t think I’m doing it any more so than those who decry the Mass decision as “activist.”
Ok, but then how do you define “rational basis”? What does “rational” mean from a legal standpoint.
I have to run out for a while, so I don’t have time for a detailed answer but the short version is that there should be a compelling public interest being served by restricting Equal Protection. There needs to be a convincing argument that the public will be harmed without the restriction.
Scott, I feel that you misinterpret Bricker in your comments. As I understand him, he is not personally particularly moved by the issue of same-sex marriage one way or the other. Simply put, he does not see it as an issue worth going to the mats about either way. He was at one time opposed to it, but was convinced by arguments that it was in fact a matter of equal rights, something that gay people were entitled to enjoy on the same basis as straight people enjoy opposite-sex marriages.
What does make a difference to him is his strong adherence to a school of thought regarding the guarantee of rights. For Bricker, those rights which courts are entitled to enforce are those which are explicitly guaranteed in the Constitution (ignoring for the moment the Ninth Amendment), plus those guaranteed in state constitutions, by legislatively adopted statute, etc. In short, the “judicial activism” of the Stone, Vinson, Warren, and Burger Courts which found rights not explicitly guaranteed to be constitutionally protected, is beyond the pale. For him, this amounts to dictatorial legislation by judicial fiat. (Rick, please correct my understanding here.)
In particular, the idea that states may not abrogate the life, liberty, and property of U.S. citizens without due process of law is not a guarantee of rights in any substantive way, but a guarantee that the state legislatures, in abrogating those three guaranteed privileges, must adhere strictly to proper procedure, and demonstrate some legitimate government interest in doing so in the process. (The degree to which that interest must be proven and how it supersedes individual rights varies with the right, the mode of categorization, and the proposed action, a fascinating topic we need not get into here.)
The idea that there are rights guaranteed by the Fourteenth Amendment which may not be abrogated by the states for any reason, termed “substantive due process,” is one that I understand him to reject utterly. There are legitimate grounds for holding this view; it gives the courts great license to define (“create”) rights not explicitly spelled out. And it has been in the past used for socially unacceptable reasons. The issue in Lochner was one in which the state’s right to regulate the conditions of employment was rejected on the basis of the constitutional guarantee of freedom to contract – the laborer and the company which proposed to employ him in sweatshop conditions were legal equals, able to agree on whatever terms were mutually agreeable. If this resulted in abject surrender of the laborer to company conditions, that was no concern of the courts or the legislature, said the White Court.
Rick, because it may give you some insight into those of us who hold the opposing view, and because I personally would like very much to see your reasoning, I would appreciate your analyzing the Loving case. As I see it, it stands on all fours with the current issue of SSM: the Virginia State Legislature in its wisdom had established as public policy that no couple of mixed race could have a legitimate marriage within the bounds of Virginia. The Supreme Court, declaring marriage to be a “fundamental right,” said otherwise. But as I understand your stance, this was an egregious case of “judicial creation of rights,” and while you might personally be opposed to anti-miscegenation laws, it would have been your stance that the only legitimate cure for said problem was for the State Legislature to repeal its anti-miscegenation law. Can you distinguish between Loving and Goodridge in terms of the constitutional issues at stake (granted that the latter dealt with Massachusetts state law, and the former became a Federal case), so that one can understand why you would approve of the result in Loving but not that in Goodridge?
Finally, Big Whistle, my understanding of California politics is slender, based on East Coast-based networks, Hollywood depictions that I realize to be unrepresentative, and limited exposure to supposedly-realistic fiction set in various areas of the state. So I cannot speak with any degree of intelligence about the prospects of an initiative or what the California State Legislature decides to do.
However, to me it does not depend on what the people in their wisdom decide to advance, by initiative or through their elected representatives, but rather on what rights are guaranteed, and whether marriage irrespective of the proposed partner’s sex is a guaranteed right. I believe it to be. But the issue at rock bottom in my eyes is whether there is a guaranteed right there, or perhaps that a state tying marriage to procreation may decide in its wisdom to void my (heterosexual, childless) marriage. In that respect, it matters to me not a whit whether it is a judge, a legislature, or a popular referendum which makes the decision: it either validates or abrogates a right which I believe to be guaranteed.
You seem to misunderstand me. In the past, I felt he was being a jerk. However, since then, it has been pointed out that he simply worships the process. I understand that. I am in no way claiming he hates gay marriage, just explaining to him why he’s" been accused of being “secretly against” SSM even after my “coming around,” by people that had read the “coming around” thread and were aware of my conversion." So he has now brought up a thread supporting it. That affects the impression left by his past patterns, but not by very much, in the eyes of many.
Oh, and I still think it is odd for him to claim that the Goodridge decision was in any way, shape or form judicial activism.
Aw hell, this is becoming a hijack, and I said I would try to keep from doing so. New thread, this time in the pit .
No one points at Loving for the proposition that I should be able to marry Dakota Fanning. Because even though the Equal Protection Clause says not one word about age, it is abundantly clear that it cannot be construed to mean that legislatures cannot discriminate on the basis of age.
The Equal Protection Clause was created to address the issue of race. It stands for the proposition that any classifications based on race are inherently suspect.
We cannot read into the clause more than that. We cannot read it literally. I’ve already mentioned age; read literally, the Clause forbids any age discrimination. I’d point out that when the sufragettes sought the vote for women, they did not point to the EP Clause as a source for their existing right to vote… they, and the country at large, understood that the Fourteenth Amendment did NOT grant women the right to vote. The Nineteenth Amendment was necessary for that goal.
Similarly, the EP Clause does not speak to the issue of same-sex marriage.
Nor does it have to. It’s an unspoken assumption. There is a rational basis in excluding children from the prvileges of marriage. There is none for adult same-sex couples or 9onterracial couples/ It is up to the legislature to show why a group SHOULD be excluded, not up to that group to show why they should not.
Well, again, how do you define “rational basis”? Here are two reasons that a state might want to restrict marriage to opposite sex couples.
The state has an interest in encouraging procreation, and the institution of marriage is a means by which the state can encourage procreation and stable environment for childrearing. Since same sex couples can’t have kids, there’s no reason for the state to create marriage between two people of the same sex.
The state has an interest in promoting public morality and has decided that homosexual sex is detrimental to that. Allowing same sex marriages would be state encouragement or sanction of homosexual acts, and therefore that can’t be allowed.
There are two reasons. I don’t think they’re good reasons, but they’re reasons. So there’s your rational basis.
That’s not quite how the law works.
The acts of a legislature enjoy a strong presumption of constitutionality. The burden falls to the challenger to overcome that presumption.
Thanks. I had forgotten that you are more or less an originalist on 14th Amendment jurisprudence; that does clarify a distinction, though not one I’d agree with, from my personal stance. (Granted that neither of us are on the court… ;))
Bull shit.
The Equal Protection Clause precludes states from discriminating in an unlawful fashion. The clause didn’t say race, when it could have, so we must assume that the wording intended to include other possibilities. To attempt to limit it to issues of racial discrimination is not supported by either rational thought nor the record at the time.
Clearly, for example, anyone who thought it necessary to preclude discrimination against people on the basis of race would also think it wrong to discriminate against people on the basis of nationality. A reasonable assumption could be made that such discrimination should be handled the same way.
To assert that the 14th Amendment is nothing but a “don’t do bad things to blacks” amendment is to go even further than Justice Scalia would attempt, and that is pretty far. Absent words to that effect in the amendment itself, the stated law of the land does not discriminate in favor of such an interpretation.
Why was the Nineteenth Amendment necessary?
Because the 19th Century Powers That Were did not accept the assertions of some (most) suffragettes, notably Elizabeth Cady Stanton, that the Fourteenth Amendment did in fact define women as citizens (with the suffrage) on an equal basis with men. I meant to call you on this error of fact earlier but neglected to.
Rick, you are privileged to believe whatever you want about constitutional interpretation, but (Scalia and Thomas to one side) the majority of constitutional writers, both on the bench and in commentaries, have since 1937 held a quite different view. And IMO (and I am not blind to the potential evils of SDP) it is one that trades American liberty for legal technicalities. I personally would not want to live with your conscience, though I respect greatly your knowledge and your integrity.