Before the SJC ruling: SSM illegal in 50 states.
After the SJC ruling: SSM illegal in 49 states.
Explain again how 0 states with legal SSM is farther ahead in the war than 1 state with legal SSM?
How long would you suggest that the residents of a particular state be held hostage to the bigotry of the other states? Why do you think it’s reasonable or good to ask the people of Massachusetts to live under the yoke of discrimination for even a day longer than they did?
While the hysterics agitated and won some battles this last election (some of which wins are being dismantled by the courts even as we type), the non-hysterical will, one would hope, see that after nine months of legal SSM in MA, the sky has not fallen, fire has not rained down from the heavens and Boston Harbor has not turned to blood. Had the SJC not ruled correctly, as they did, then the nation would not have that example to look at. Truly decent people, who may be uncomfortable with the notion of SSM and thus easy fodder for the anti-gay hysterics, will (knock wood again) see that gay married couples are just as dull and boring as straight ones and help themselves to a heaping helping of “get over it.”
I disagree. I don’t think the judges in MA should have ruled as they did. But my reason is simply that they should have left this up to the legislature and not made it an issue for the courts. They gave the legislature 6 months to work a solution, but that timeframe left open on ly one solution. Better to have give them 2 years, which would have allowed either solution an equal legislative chance for success. I do not think they should have wieghed their opinion against potential backlash in other states. If they think the legal reasoning is sound, then so be it-- let the backlash begin. I don’t WANT judges to worry about “backlash”.
The people who need to take “backlash” into account are the activists working to get SSM enacted. That is a war, and if you win one battle (like gay marriage in SF for a few weeks) but lose the war (CA enacts an anti SSM amendment), then you need to rethink your tactics.
Like Bricker, I do support SSM, as long as it is derived from the legislative side (ie, the will of the people) rather than the judicial side. I just don’t agree with his “backlash” argument.
That’s a very good point. I guess I thought the OP was being free in handing out his “fuck yous” to the governor, who is simply following the law of her state, and sought to offer other, similarly remote targets.
But you’re correct – a judge that decided the issue in Massachusetts based on his or her fear that other states would adopt anti-SSM laws would not have been doing his or her job.
Such a judge might have been legitimately motivated by the desire to let their own state legislature, rather than the judiciary, decide – as were some of the judges in Goodridge’s dissent. But no Massachusetts should have been swayed by the likelihood of extra-state consequences, and it was wrong and short-sighted of me to even suggest that.
I don’t either. Judges who make the rulings should determine the case based on legal standards and precedent.
I imagine the “activists” are no more united in a single plan of change than the civil rights era activists in the 50’s and 60’s. And, to use that as an example, I would point out that Thurgood Marshall pushed for, and got, change through the courts in 1954, when the Supreme Court decided Brown v. Board of Education. It wasn’t for almost a decade after that that the legislature made meaningful changes in the arena of civil rights.
And if the will of the people, judging from the votes this November, is to continue the discrimination? Look at Romer v. Evans, where the people of Colorado voted for an amendment to their Constitution that forbade the enacting of anti-discrimination laws for homosexuals by municipalities. It wasn’t until the Supreme Court stepped in that we got rid of that garbage. How long shall they wait before going to the courts? 10? 20? A couple more decades of anti-homosexuality legislation before they should go to the courts? Or never? As long as the majority of Americans believe the lies about “special rights for gays” same sex partners shouldn’t go to court?
I don’t see what grounds ‘the people’ have to demand any say in SSM. It’s no more Otto’s straight nextdoor neighbours business what he does in the privacy of his own home than it is George W. Bush’s.
I didn’t mean to imply that they are. It doesn’t take any coordination at all, just each activist himself or herself thinking the consequences thru. I will agree that the odds of that happening are next to nil, but it’s hard to have sympathy for those who don’t and who are shocked, SHOCKED, that there would be backlash.
Of course it’s hard to determine exatactly when the right time is, but it certainly isn’t now. I don’t know of any instance when people (ie, a majority in any state) voted FOR a pro-SSM law or amendment. But, people do vote for civil union laws, and that would seem to be the route to pursue right now. Of course, if you think “all or nothing” than go to the courts now. Just don’t be surprised if “nothing” is the result.
The simple fact is that constitutions, whether state or federal, reflect the will of the people. Whether that will is right or wrong, there is no better system for putting a constution in place. And right now, the “will of the people” is no SSM. What needs to happen is education and working to break down the fears that people have, and that’s going to take time. But once you put a constutional amendment in place, it’s damn hard to get it revoked. We’re heading fast down the road of most states having anti-SSM wording in their constitutions. And if the federal judiciary rules in favor of SSM, a federal constitutional amendment banning SSM will likely follow very quickly. That amendment, if it were to pass, would be next to impossible to get rid of, and we’d see no SSM in the US for the next 100 years at least.
I’m not endorsing that position, just recognizing it as the most likely outcome.
See my post above. The only way to NOT have them have a say is to set up a system where only “enlightened overlords” can change the constitution at the state or federal level.
Look at your own OP. Domestic partner benefits have been removed from the contracts of Michigan state workers following the passage the anti-marriage amendment. That’s a step backwards, and one that likely wouldn’t have happened without the Massachusetts ruling.
Does that step backwards outweigh the step forwards in Massachusetts? Probably not. But, as you yourself note, this is probably only the first fallout of the anti-marriage amendments. How many more negative things need to happen before gay rights, in the aggregate, are behind where they were two years ago? (And note that this is not a rhetorical question. I’m not sure how I feel myself, but it’s certainly reasonable to believe that no amount of fallout will outweigh the good in Massachusetts.)
I really, really hope you’re right. And if you are correct, then that negates my above statements. But I am, I fear, more pessimistic.
I am unclear on how you imagine Otto will get a marriage license in the privacy of his own home.
In other words, marriage is an act that is public, and involves active recognition by the government. There is no “privacy of his own home” at issue here.
I don’t understand why the same strict constructionist reasoning can’t be employed to restore legal segregation. After all, the imposition of non-whites in previously all-white institutions was accomplished by judicial fiat, was it not? In Bricker’s and John Mace’s opinions, should Brown vs Topeka be overturned? If not, when why do you make an exception for civil equality for gay people? Why do you insit that other citizens get to vote on our rights?
Because when the law classifies people by race, it’s a “suspect classification,” presumptively unreasonable. This is because the Fourteenth Amendment was written to eradicate racial discrimination. Note that the Fourteenth Amendment did not give women the vote. This is because it was understood that the focus of the Fourteenth is race.
And the Fourteenth Amendment was passed by legislative process: approved by Congress and ratified by the requisite number of states. So even in the case of race, other citizens got to vote to extend equality to blacks FIRST, before they got the legal protections mentioned in Brown.
When the law classifies people by sexual orientation, it’s not a suspect classification, and the law is presumptively reasonable.
I’ll respond to the other point you made in post 49 tomorrow (I’m in a netcafe with about 3 minutes left. Gotta be quick!) but are you saying that since laws classifying people by sexual orientation are reasonable according to the constitution they are reasonable by definition? Sorry if this sounds like a dumb question but I’m no expert in any of this and would appreciate some education.
**Bricker **is talking about judicial rulings, but my point was that the constitution is a legislative document, voted on by the people, or their representatives. If we don’t allow “the people” to vote on constitutional issues, who DO we allow to? I hope no one is so tied to the SSM issue that he or she would prefer to overturn the democratic process in order to get it.
If “the people” vote to re-institute slavery in the constitution, then I’m ready to join the revolution. SSM does not, IMO, rise to that level.
I’m saying they are presumptively reasonable under the law. I personally favor same-sex marriage, so if I were a governor I would not sign any laws that removed same-sex marriage from my state. BY that definition, I don’t consider such laws wise.
But if I were a judge and asked to decide if a state’s failure to recognize same-sex marriage is a violation of the federal constitutional equal protection clause, I would respond in the negative: it is not.
“Understood”? I thought that you dealt only with the language as written without trying to read any “understood” meanings into it.
Nowhere does it mention blacks, does it? Sure, it was passed during Reconstruction and a reasonable person could assume that it was meant to remedy the legal status of ex-slaves, but that’s by the way. The language of the amendment does not address race, does it? The wording only says “any person,” so it could as easily address gender as it does race. The exact same reasoning that struck down racial segregation can also be applied to sexual orientation.
But that’s an evasion. The SupremeCourt found that “separate but equal” was perfectly consistent with the provisions of the 14th Amendment in Plessy. Integration can be viewed as granting “special rights” to blacks and an infringement of the right of white citizens. The 14th Amendment assures that a blakc child is entitled to an education, but saying that black children are entitled to education in white schools is, by your reasoning, unwarranted judcial activism, creating a right that is not explicitly mentioned in the Constitution.
I searched “suspect classification” at Findlaw,.org, and although I came up with several hits, none of the cases cited explained why race is a suspect classification and sexual orientation is not. Please explain.
On the contrary, I am asking why we are not following legal precedent in allowing judges to interpret the Constitution. We didn’t put racial integration up for a plebiscite, so why the insistence that SSM must be voted on? SCOTUS renders verdicts on Constitutional issues every year; if you didn’t on ratification by popular vote on other hot-button issues like abortion rights or racial integration, why do you persist in subjecting only SSM to a vote? Why do you make an exception for this issue and no other?
Race is a “suspect class” because the Supreme Court said it was. The words “suspect class” appear nowhere in the text. True enough that sexual orientation is not a suspect class currently; but there’s nothing that says given the appropriate case the Court can’t declare it to be so tomorrow (note I am not saying this Court would merely that they could).
And as long as you brought it up yet again, the Fourteenth Amendment didn’t confer the right to vote upon blacks. If it did, the Fifteenth Amendment would have been unnecessary. So may we be spared the constant canard of “the 14th didn’t give women the right to vote”? The 14th didn’t give anyone the right to vote.
Yes, normally we try to read the language of the law without reading any “understood” meanings into it. But we do not do that when doing so would yield an absurd result. Read myopically word for word, there are very few laws that could survive, since the purpose of laws is to create classifications of people. Felons are treated differently than non-felons. Persons over 18 are treated differently than persons under 18. Employers are treated differently than non-employers. A literal application of making every single human being equal before the law in any and all respects is impossible.
In GD, in the Judicial Activism thread, there is a great analysis of Equal Protection jurisprudence.
We DID put racial integration up for a vote. The results were the 13th, 14th, and 15th amendments.
True. The whole swirling mess of EP jurisprudence comes from “because the Supreme Court says so.” If they were to rule tomorrow that sexual orientation is a suspect class, then it would be. You’re absolutely right.
True. But that’s MY point you’re making: even though it says “equal protection” and “all persons” it didn’t confer voting rights. That’s a clue to how it should be read.
Exactly what I said. SCOTUS took up a case and declared it so. In other cases it declared religion to be a suspect class. Sex is a “quasi-suspect” class, as is IIRC illegitimacy and a few others.
Sexual orientation is not a suspect class because SCOTUS has not said it is. Period.
I’m at work and I really should be working, but if they haven’t been posted when I get home I’ll put up the cases later.