In most of the states that have, in the last ten or fifteen years, passed anti-SSM legislation, SSM was already illegal in that state. I’m not saying that proves anything, one way or the other, about the 14th, I’m just saying, sometimes laws are redundant. The existence of the 19th amendment does not necessarily prove anything about any of the previous amendments.
Name a couple.
I assume you’re not talking about a state that passed a constitutional amendment when they already had statutory law forbidding SSM, because those two are obviously not redundant. The law can be invalidated by a state court’s interpretation of its own constitution; the state constitutional amendment cannot.
Well they aren’t making substantive changes to the law - they cannot. They are simply striking laws that violate the constitution. Unless you want to overturn Marbury what is the alternative?
I’d love to see it coming from the legislature too. But if they pass unconstitutional laws, then it is the duty and responsibility of the judiciary to prevent those laws standing.
It seems your issue isn’t with the courts’ actions, but instead a different interpretation of what the constitution actually requires. So aren’t you really being as results oriented as those you oppose on this?
There’s pretty strong evidence that, at least for some people, sexuality is an immutable characteristic. The so-called “ex gay” ministries, that attempt to cure people of their homosexuality, have a failure rate somewhere around 95% This isn’t conclusive: it’s possible that some people have a changeable sexuality, and some people do not, and it’s the latter group that is drawn to ex-gay ministries precisely because they lack this ability. But the evidence is pretty clear that, at least for a sizable percentage of the population, sexuality is a fixed characteristic.
Personally, I don’t think sexual orientation can be changed through an act of will. However, I also think sexuality is much more complex than is allowed by our pretty simplistic trinary paradigm.
Do you have any evidence for there being a “high number” of bisexuals in the gay rights movement? I’m asking not as a challenge, but because I’m genuinely not sure how large that segment of the movement really is. My impression is that it’s actually quite small, but that’s mostly based on personal observation, not empirical study.
Regardless, the actual percentage of bisexuals in the movement doesn’t matter one way or the other, because bisexuality isn’t the same thing as having a mutable sexuality. I’m bisexual myself. I couldn’t stop being bisexual if I tried. It is, as near as I can tell, a permanent fixture of my identity.
I hear ya.
But… the thing is that we might consider this on a sliding scale. There is no way to write a bright-line rule for judges to follow, I grant, without eviscerating Marbury. But we can select judges that have fidelity to the general concept of judicial intervention. A judge who sees his role as assisting social change through the law will not, as a general rule, respect the idea that the legislature alone should make law.
I remember during Sotomayor’s confirmation hearing a speech of hers came out in which she said something about the courts making new law, and then hastily modified it, adding a very conscious wink-wink to her words along the lines of “of course judges don’t make law…”
No, unless the “result” you refer to is my desire to see the legislative power remain with the legislature.
That’s fairly near the same situation, isn’t it? Presumably, the people who passed, say, Texas’s anti-marriage law, did not think that their constitution allowed gay marriage. However, they saw a possible danger that someone might interpret it that way, so they passed a new law making their interpretation clearer. Although I do not think this is necessarily the case with the 14th, the same argument could be applied there: the 14th should have allowed women the vote, but because there was disagreement over the point, the 19th was adapted to settle the issue.
Perhaps a better example would be this: you believe (IIRC) that the second amendment guarantees the right to private gun ownership. Others have argued that it should only apply to members of a state militia. If, in response to this controversy, a new amendment was passed that guaranteed private gun ownership in more explicit language than exists in the second, would this be proof that your interpretation of the second was incorrect?
Again, I’m not arguing one way or the other about what the 14th actually allows, particularly as applied to women’s suffrage. I just think that using the 19th as proof of what the 14th means is a very weak argument by itself.
I don’t agree that the legislature alone should make law, and nor I think do you. The entire Anglo-American system is based on judge made law - its simply not possible for a legislature to fill out the entirety of law.
I am not sure what the judge’s motivation has to do with it - if a judge believes that the Fourteenth Amendment protects homosexuals from discrimination, he’s duty bound to find the law unconstitutional. That’s not assisting social change, that’s enforcing the constitution.
But it is a question of what that power is - it is clearly not the power to legislate in violation of the constitution.
But no one thought the 14th Amendment would extend voting rights to women.Amendment 14 clearly states ‘male’.
Suffragists tried to get a clause for women, but they failed. Some suffragists - Anthony being one of them - were outright against the 14th Amendment altogether as it only provided suffrage rights to black males.
Sure, English lacks a gender-neutral pronoun, but the Declaration of Independence (yes, I understand that’s not the Constitution) was never meant to be for both of the sexes. Nor was the 14th Amendment. The drafters could have continued to use the word ‘persons’, but instead chose to use the word ‘male’.
I think one of the strongest cases that the gay rights movement has made is how prevalent gays really are, when in fact, they’re not. I grew up hearing ‘ten per cent’ (thanks, Kinsey) all of the time, when it’s nowhere near that high.
I’m not sure if it helps/hurts/doesn’t matter to the immutable argument, but I don’t know if the Court sees all ‘immutable’ characteristics the same. I think one of the disconnects between the black community and the equality movement is that you are born black, period. Your parent (or a parent) is black, your history is black, your future is black.
With being gay, lesbian, or bisexual, there’s probably a degree of nature & nurture before that 'cemented into eternal gayhood 
’ status. We can’t point to one - or even ten - things that make one’s sexual orientation what it is. Now, when I’m at the Red Ball or a Pride event or a delegates convention, it never occurs to me. I don’t care.
But when I think about how SCOTUS may treat the issue and how the case could be argued, then I wonder if it would come up and if it does, how SCOTUS would rule on that issue. I mean, SCOTUS can strike down a law on more than one ground, or you can have 6 justices voting to strike down a law on the basis of Z, with one saying it also violates X, even if the other five think not.
If the Court strikes down anti SSM laws and says that they are discriminatory, I think it paves the way for a host of new cases. Because right now, Arkansas does not allow gays to adopt, as it only allows married couples to adopt. The purpose behind it was religious and conservative, of course, but let’s say the SSM marriage is allowed. Can Arkansas pass a new law that says only hetero couples can adopt/foster children?
I know, I agree that trying to forcibly change one’s sexuality is a horrible thing to do. If the patient in question wants to be ‘straight’, then I think that they should feel comfortable enough to talk to a psychiatrist about it. Because some do.
Maybe I shouldn’t say ‘movement’. Sorry. See above.
That’s an interesting way to think of it. I have had ss/relationships, but I consider myself heterosexual based on my overall sexual preference and plans for the future.
Conservatives also see things like gays and bisexuals being more prevalent in cities and it adds to their case that ‘being gay is a lifestyle’, eg., choice. I mean, I choose not to have relationships with women and I’m 100 per cent OK with that.
I don’t think so. The 14th was never intended for women. It was specifically not intended for women, actually. There was no oversight. Safe to say that no one in Tejas thought that gays would be trying to get married when they wrote their Constitution.
On its own, sure. In context, no.
I think that the 19th Amendment ensures that women are protected under the 14th.
The legislature alone should make law. The courts may review law, but they do not make it.
As I said, I’m not making an argument about the 14th amendment one way or the other. I just think Bricker’s argument that the 19th amendment proves what the 14th said or intended to say is particularly weak. The point he’s trying to prove may be correct, but I don’t think that argument works as a way of demonstrating it.
I don’t know that I’ve ever seen the number of gays in society put forward as an argument, by itself, that gays should have equal rights. Except in a, “There are more of us than you think/Someone you know could be gay,” sense, which is basically an emotional appeal. Even if Kinsey were correct, I don’t think the difference between 10% and 5% is terribly significant. Either number is small enough that, to most people, homosexuals are going to be seen as a small and relatively unimportant group.
I’m fairly certain the court does not see all immutable and innate characteristics as equal. Nor should they: just because something is innate and unchangeable, it doesn’t follow that it’s necessarily good. Sociopathy, for example.
Presumably, if the court finds that the Constitution protects the rights of gays to marry, it will be part of a general finding that says that gays on the whole are a protected class, and so can’t be discriminated against in any way, and not just in matrimony. So Arkansas’s hypothetical adoption law would not pass muster, if the state were compelled to recognize SSM.
Ex gay ministries don’t generally attempt to *forcibly *change someone’s gender - although I suppose one could argue the point when it comes to youth ministries. But in the west, at least, virtually everyone who enters an ex gay program is there because they want to be there. And I think that’s terrible. A competent psychiatrist would work with a patient to resolve their feelings of shame or guilt over being gay, not their feelings of homosexual attraction. The people who run these ministries are, essentially, psychological butchers. They’re causing immense harm to the people they’re claiming to help.
That’s pretty much exactly what I meant when I said that sexuality is much more complex than our simplistic gay/straight/bi paradigm. A lot of people can’t wrap their heads around the idea of someone who identifies as straight, but has had same sex relationships in the past, because the assumption in sexuality is that it’s basically a toggle - when in fact, it’s a dial. There isn’t a precise point where heterosexuality becomes bisexuality, or when bisexuality becomes homosexuality.
Most people tend to use “bisexual” as a catch-all category for anything that doesn’t fit in the previous two categories. Which, as a bisexual, bugs the hell out of me, because I see a distinct difference between some like myself, who’s actively interested in romantic relationships regardless of gender, and yourself, who tried it for a while when you were younger, but aren’t interested in it as a long-term life choice. But a lot of people will look at someone like you, and say, “Well, she must really be bisexual, because she dated a woman ten years ago,” or worse, “Well, she must have been bisexual back then, but now she’s not, so that means we can justify discrimination against gays because it’s just a lifestyle choice.”
I always thought the emotional appeal worked the best. When I was younger (er…yeah I’m already a bit young), I’d see the 10 per cent thing a lot. I even used it myself. It seems to have disappeared a bit over the years.
Exactly, and that is why I wonder to what degree/application of immutable is going to be considered here.
Maybe. Sex offenders (and no I am not doing the slippery slope thing, it just comes to mind right away) can marry and don’t have to be sterilized, but the state can reject their applications to be foster/adoptive parents. They can do the same with alcoholics, felons, anyone that doesn’t pass muster, etc. I’m curious as to what grounds SCOTUS would strike down anti gay marriage bans. And what is the point of State Constitutions if SCOTUS can overrule them?
I think there should be an option for people to seek counseling that isn’t faith based. Whatever comes of that therapy is between the patient and therapist. (A good therapist will not make a diagnosis, but will explore where the feelings are coming from and where the patient wants to go.) There are some, who, try as we may, will never be comfortable with their sexuality. 
A lot of therapists here do counseling on glbt issues. I assume it comes up a lot, and I’d hypothesize that many people walk out of there going, Oh hey. It’s OK to be gay.
There are also straight men who like to engage in m2m as a means of domination, not mutual sexual attraction or love. That is something that shouldn’t be ignored.
Women are a pain in the ass. *
*Yes, I see the irony in my statement.
Add: I understand the concept of judicial review re: state constitutions. It’s just an annoyance I have, as these things could swing either way.
Often, yes, but not so much in a court of law. But the “Someone you love may be gay” argument works just as well for 5% as it does for 10% In the US, 5% of the population still works out to, what, 15 million? That’s still a shit-ton of people.
There is an option: regular, non-ideologically driven therapy, which is never going to make the claim that it can “cure” homosexuality, because any reputable therapist knows its impossible. The clinics that offer a “gay cure” are engaging in simple fraud. They are offering a service they know will not work, and arguably, they know that by offering it, they’re causing more harm to their patients than they would if they did not offer it.
While I’m not entirely convinced that such services should be illegal, I don’t think there is any context in which running such a clinic is either a wise, or a moral decision.
Right. Like dating gay dudes is a walk in the park.
(also ironic)
Did any court entertain such an argument? Did any suffragist make that argument in any sort of notable forum?
This has never been the case in the Anglo-American system, and I don’t see why people think it should be so now.
Because the Federal Constitution provides a base level of rights below which no state may go. States may (and do) in their own constitutions increase protections above the federal minimum.
I don’t see how the criteria I listed qualifies as making substantive changes. Someone has to determine who the EP clause applies to. Is the Court supposed to apply it to all “persons,” or can it create a test in order to balance the interests that the clause was designed to protect?
My point is that the change did come from the legislature, when they created a vague EP clause and left it up to the judiciary to apply it on a case by case, fact sensitive basis.
Villa, please don’t nitpick my semantics. We were talking about SCOTUS. Federal common law is precedent, and it is based on constitutionality. It is something a shade different than what states have in place. You know that. :rolleyes:
Oh, no, I think you misread me. I think the ideo-clinics can go. But the regional psych associations aren’t going to pull those licenses. What I meant is that people who are having issues with their sexuality should feel like they can go to a shrink without being ostracized by any community.
Too bad you weren’t born a chick.
Except one of the reasons for the 19th Amendment was that the SCOTUS had held that denying women the vote did not violate the 14th Amendment: Minor v. Happersett. A constitutional amendment was necessary to ensure women had a constitutional right to vote. At the time the 19th was adopted, there was no ambiguity or differing interpretations on this point.
- and/or other laws.
At any rate, you know what I was talking about and the sentiment I was expressing (kind of like that rhetorical question you felt like answering).