There isn’t any distinction. Judges shouldn’t change the laws, whether about SSM or anything else.
In what way is “two men or two women” an interpretation of “one man and one woman”?
Cite?
Regards,
Shodan
Well, in the sense that one can read it as “marriage is an arrangement involving two adults” and realizing their genders are irrelevant in the absence of any evidence to the contrary.
Do you have any evidence to the contrary? Also, again, how do you feel about Brown in the absence of any mention of education in the constitution? Judicial overreach?
So, if the legislature passes a law that outlaws gun ownership and also places a tax on gasoline, a judge should not rule that only the ban on guns be nullified because that would “change” the law, right? And just to be clear, this law also has a provision that says if one part is found to be unconstitutional, the rest of the law needn’t be.
But as I said earlier, it’s not about permitting things, it is in fact about not permitting things. Gay marriage demands that the power of the state be employed to punish people who refuse to recognize or respect gay marriage. As in a bakery being threatened with having its business license revoked. There’s nothing uglier than a formerly persecuted faction that suddenly gains power, and progressives in particular are cynically quick to change their position from “we want fairness” to “we want our enemies crushed”.
Well, more generically, civil rights (at least since the Civil Rights Act of 1964) gives the government the power to publish “public accommodations” who refuse to serve clients based on certain criteria. It’s not ideal, I grant you - I can picture a baker who would agree to bake and sell a cake for the following occasions:
- Celebrating the college graduation of a person who is gay.
- Celebrating the birthday of a person who is gay.
- Celebrating the birth of a child to a gay couple (or the adoption of a child to a gay couple).
… but drawing the line at making a cake for a gay wedding.
Trouble is, if this kind of exception is granted, it invites numerous other claims for exceptions. Could a food company refuse to cater a gay wedding? Why not? Could a hotel refuse to rent space to a gay wedding? Why not? I can understand the feelings of someone who is gay and has faced discrimination all their life having little patience for this and opposing the baker’s petition. Many American businesses found work-arounds to avoid serving blacks after 1964; many American businesses will find similar work-arounds today, given the opportunity.
It’s not clear at all that this is happening. The rhetoric, in fact, is indistinguishable from something a whites-only country club might say: “You’re not just trying to make us admit blacks, you want to crush us and destroy our entire way of life!” I’d tell them to grow up. Besides, “gain power” ? What they’ve gained is the power to do what everyone else in the country was already doing. I suppose instead of their gain, you could measure the loss of power this represents, in that fundamentalism’s influence on politics has clearly taken a hit. Good. You’re better off for it.
Heck, I’m picturing a state legislature deciding to legally define the word “arms” (in the sense of “weapons”), then banning all weapons that don’t meet this definition. If word definitions are that important, it looks to me like a viable strategy and, on paper, not at all a violation of the second amendment. Would SCOTUS overrule them and impose its own definition of “arms” or nullify the state’s definition and restore the term to its previous generic vagueness?
Any civil rights movement can be trivialized if you ignore the real world effects of disparate treatment. But it turns out, the Woolworth lunch counter sit-in wasn’t just about black people being picky about where they ate. And SSM rights aren’t just liberals being loud and annoying. Lack of marital rights meant that gays couples could be, and frequently were, denied:
[ul]
[li]Hospital visitation rights.[/li][li]Power of attorney.[/li][li]Inheritance.[/li][li]Custody of their partner’s children.[/li][/ul]
And those are just the major points. But, sure, if you ignore all of those, its pretty easy to make it sound like the real victim here is some dipshit in Colorado who might have to make a cake he doesn’t 100% emotionally endorse.
While I’m seeing merit in both positions advanced in this thread, I wish we could shut up about bakers.
They are NOT being required to recognize, respect or otherwise celebrate gay marriage.
They ARE being asked, that if they want to make it their job to furnish cakes to people who want them (for whatever reason) in exchange for money, that you don’t get to choose to serve this class of people, but not that other class.
I think we insist on this because we recognize our not so distant ugly history* in this regard with respect to race.
*I’m sure that someone will post that this is not history, but still happens today- I’m sure that’s true, but it doesn’t change the point that we oughtn’t run our society that way, and that in fact, both our laws and our constitution say we shouldn’t
Well, now I’m curious. Suppose a church group approached the baker and asked for a “gay” wedding cake (whatever that is) so they could burn it along with effigies of Obama and Hillary Clinton and copies of Heather Has Two Mommies and such. Would the baker be recognizing gay marriage by agreeing?
It’s worth noting (and I made somewhat the same mistake in my previous post) that the asshole baker isn’t being prosecuted because of gay marriage laws, he’s being prosecuted because of Colorado’s anti-discrimination laws. Nothing in the Obergefell decision requires or suggests any sort of penalty for any non-government actor. (Government agents, as Kim Davis learned to her delightful regret, aren’t as unaffected, of course.) And nothing in Colorado’s anti-discrimination laws requires the federal recognition of SSM before it can be applied to the citizens of Colorado. The Obergefell decision and the bakery lawsuits aren’t actually related, except in that they’re both about gay rights.
As for the bit about “nothing uglier,” while I recognize that this is a bit of deliberate hyperbole, let’s put this in some perspective.
This is what happens to gay people in homophobic societies.
This is what happens to “Christian” bakers in societies with legal protections for gay people.
Unless you’ve got some really strong opinions on marzipan, it’s pretty clear which is uglier.
Of course, these sorts of anti-discrimination laws have always been an explicit goal of the gay rights movement, so your accusation of progressive goal-post moving can be similarly discarded.
I think that they would be recognizing that the job of a baker is to bake a cake to his or her customers’ satisfaction. Usually that means flour and sugar. Maybe sawdust would be better in this case.
I find it a more interesting question to ask what the appropriate response should be if the local KKK and Neo-Nazi group want to share a meet and greet, and ask for a cake loaded up with swastikas and flaming crosses…
In which state? Because, contrary to your apparent opinion, marriage is not defined that way in federal law. Hence the FMA proposal.
Yes, that marriage is defined as the union of one man and one woman. The evidence to the contrary is that gender is mentioned specifically.
If I say “I saw a man and a woman standing on the street corner”, it is not a different interpretation if you say “you saw two men standing on a street corner” - it is incorrect. It is still incorrect if you think that the fact that both the man and the woman were adults meant that they were both men.
Brown was an Equal Protection case. Thus it was about laws. The laws themselves don’t have to be defined in the Constitution; they are passed by legislators. Once passed by legislators, they must be equally applied. If they haven’t been passed by legislators, they don’t need to be, since they don’t exist. Same with SSM - no laws regarding SSM had been passed, and thus no laws regarding SSM were being unequally applied. There was a set of laws about marriage - those were being applied equally, because anyone could enter into the union of one man and one woman. SSM is not the union of one man and one woman. QED.
Of course he should strike down the ban on guns. That violates an enumerated right in the Constitution. I mentioned that earlier. SSM marriage is not an enumerated right. Maybe I wasn’t clear enough - judges can strike down laws that violate enumerated rights. They can’t change laws to enforce rights that aren’t enumerated, but that they made up. That’s not interpretation; it’s judicial activism.
Common law. And you are merely mistaken - marriage as the union of one man and one woman is the definition of marriage. It was cited - not established, cited - in Loving v. Virginia. I told you that already - try to keep up.
Regards,
Shodan
You certainly are smug for someone who’s wrong so often. In case you hadn’t noticed, Loving v. Virginia was a ruling on both a state case and law…you know, the one named as the defendant? Precedent is, once again, not law, nor is referring to it.
Still waiting for a cite from a federal statute which defines marriage your way.
That’s not responsive to the question I asked.
Related to education, which is not mentioned in the constitution and therefore by your standards, not a topic for SCOTUS.
I gather there isn’t one (it certainly isn’t enumerated in the Constitution) but I’m sure Shodan will be happy to inform you the definition is in common law.
I know, otherwise there’d be no need for fundamentalists to try to get the Federal Marriage Amendment passed. I just enjoy needling him. 
Yes, you weren’t clear. “Anything else” doesn’t have any limits. Now you’ve noted that there is a limit. We are, after all, discussing the idea that “words have meaning”, right? 
Also, the Ninth Amendment is pretty clear here: just because a right is not enumerated does not mean it is not defended by the constitution.
Agreed. And Brown stood for the proposition that a separate system for two classes of people can never be “equally applied”, because it is inherently unequal. It wouldn’t matter if the quality was the same.
Fair enough.
Here I disagree. John could marry Sue. But Betty could not marry Sue. The fact that Betty could marry John doesn’t change the fact that Betty is being treated unequally from John.
A separate, and supposedly equivalent, legal option (i.e. heterosexual marriage) can never be sufficient. As Brown teaches us, even if a parallel option - with the same legal rights - ultimately exists, denying a woman the right that a man enjoys (absent sufficient justification - which the proponents never can solidly provide) relegates her to a second class status that is unsupported by the constitution.
Now, in fairness, this leads me to an equal protection argument on the basis of sex (e.g. gender). I happen to think that Oberghfell was wrong decided, in that I disagree in the finding that there is a fundamental right to marriage. But I do think that equal protection of the existing marriage laws should be applied. And I think that laws restricting the right of marriage by gender is fatal, insofar as it is not based on any rational justification to creating this gendered caste system.
I think it’s amusing how confidently you cite the common law for your source of marriage law when you are usually so quick to disparage the idea that judges can create law. Common law is judge made law.