As for DCU, I understand that he does in some degree hold sympahty for the legal equality of gays, but “moral commitment to the school of construing law to which he holds allegiance” would have compelled him to vote against legal equality if he had been a Supreme Court justice hearing Lawrence vs. Texas, and what’s the point of having an “ally” who votes against you?
Or to put it another way, how is someone who opposes gay marriage, denies gay people a legal right to privacy, and is against gay adoption in any sense an ally?
My position on sodomy laws has always been that they should be done away with legislatively rather than by judicial fiat. I would happily join in an effort to repeal those laws in the states that still retain them.
Of course, getting called a “bigot,” “homophobe,” and “opponent of gay rights” doesn’t exactly encourage me to man the ramparts. **
If I in fact opposed those things, I would not be an ally. Fortunately, I do not oppose them, and have been quite clear in my non-opposition in prior threads.
I have taken some caveats in my position: accepting the term “civil union” rather than “marriage” is a useful compromise on that issue; gay marriage and privacy rights should be accomplished by legislation or amendment rather than judicial fiat. But I utterly defy you to find instances where I’ve been “opposed” to any of the things you mentioned. Quite the opposite, really: I’ve been rather vocally in favor of those listed items.
Dewey, I wish to present to you the concept that people who do not agree with your stance on strict constructionism might very easily see you as “paying lip service to gay rights,” perhaps to avoid the sort of accusations and innuendos you have received, while actually caring little for the subject. As it happens, having dealt with people who are pro-gay-rights but also Biblically-based Christians who believe gay sex acts to be sinful (and who do not read from that that gay people are therefore somehow more evil than themselves, recognizing their own sin as no different than the gay people’s in the sight of God), I can fully grasp the distinction you make. IMHO the Fourteenth Amendment does guarantee personal freedom, as a generic concept, from intrusive state interference, specifics to be ironed out in particular cases as they have been, not merely that certain rights spelled out elsewhere are protected against government intrusion and the government is free to regulate and forbid anything that wasn’t specifically prohibited. The former is the government of a free people; the latter is a totalitarian state with explicit limitations that it chooses to obey. But I do recognize your right to disagree with that perspective, and to see the Constitution as merely a set of textual rules on how government may and may not work, to be followed to the letter but with the state free to act except where explicitly prohibited by its terms. (And I’m sorry if that sounds disparaging of your position; it’s the conclusion that I see implicit in your arguments to date.)
So, my friend, I present to you the following hypothetical scenario. The State of Massachusetts has passed a set of laws that startle HRC in their thoroughness. In particular, it has explicitly specified that adult gay couples have access to marriage in exactly the same way as straight couples, with all the rights and responsibilities of the latter. Two Harvard students, having established legal residency, tie the knot, graduate, and move to Virginia, where they take jobs with NoVa companies. A matter comes up in which their marital state is an issue, their claim to be married is rejected by a Virginia civil servant, and they proceed to sue in Federal court, joining the Commonwealth of Massachusetts as joint plaintiff on their own motion because it has guaranteed them equality of rights with any other Massachusetts married couple. The case seems headed rapidly for SCOTUS, and controversial as the canonization of Mussolini.
The Assistant Attorney General of Massachusetts, who lurks on these boards, recognizes that to not only win by a 5-4 decision but to make the case stick, he will have to counter the arguments of the opposition and get a unanimous vote. He therefore needs to come up with arguments that will convince Clarence Thomas and Ninoy the Scaley.
Knowing you to be a person who supports gay rights and a strong, vocal, erudite, and clear-spoken exponent of strict construction, he in the name of the Commonwealth formally contacts you for (paid) advice on how to structure the Commonwealth’s brief and oral arguments.
What will you advise him?
Polycarp, I do respect you and hold you and your opinion in high esteem.
gobear has validated the perceptions I have had on Tars as well as DCU.
Neither are entitled to anything from me.
And as I e-mailed to you, my life is not existing for the armchair juris prudence sophistry of a dime store Daniel Webster who seemingly couldn’t care less what happens or how it affects us.
You are overly generous. You are giving foolishness a pass solely because a particular issue carries emotional resonance with my accusers. You should not do so.
As for your hypothetical, I fail utterly to see why the Commonwealth of Massachusetts would be a necessary or even desirable party to such a lawsuit. The conduct at issue is between the state of Virginia and our erstwhile couple. The couple is perfectly capable of raising objections to Virginia’s conduct under the federal constitution without involving Massachusetts. Massachusetts as an entity has suffered no redressable harm, and so would lack standing to sue.
And of course our erstwhile couple would fail. The provisions of the federal constitution demanding comity between the states have long been interpreted as not requiring a state to abandon its own internal public policy.
Take, for example, the full faith and credit (FFC) clause, which is the most commonly cited basis for the notion that other states will have to respect any given state’s election to allow gay marriage. The courts have clearly stated that the FFC clause does not require abrogation of any particular state’s individual public policy interests. See, e.g., Nevada v. Hall: “[T]he Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy.” The definition of marriage is one such legitimate state public policy interest.
Hall doesn’t deal with family law, but it is a clear statement of the rule in play. And the courts have consistently held that the FFC clause doesn’t apply to many facets of family law. See, e.g., Estin v. Estin (state may continue enforcing support order even after an out-of-state divorce purportedly terminated it), Olmstead v. Olmstead (state need not honor another state’s statute legitimizing children born out of wedlock), and Hood v. McGhee (state need not respect another state’s adoption proceedings in determining land inheritance).
The other common constitutional provision is the privileges and immunities clause, which has been interpreted extremely narrowly, and thus no serious person thinks it a workable alternative.
And that leaves us with…what? Equal protection or substantive due process (and you know how I feel about the latter.) In any event, use of either such provision from the federal constitution would go beyond simply requiring Virginia to recognize Massachusett’s rule on gay marriage; use of those provisions would necessarily entail requiring that all states permit gay marriage. Even the majority in Lawrence was reluctant to go that far, specifically disclaiming that their holding applied to formal state recognition of particular relationships.
My advice to the Commonwealth thus is (i) you will not be a party to this lawsuit, (ii) you can still write a nice amici brief to the SCOTUS outlining why the Commonwealth elected to adopt the rule it did, and (iii) you should get prepared to see the plaintiffs lose, not on strict constructionism grounds, but on the simple basis of precedent – the great weight of prior decisions, and long-accepted concepts of federalism, are against you. Forget Scalia and Thomas – you’re gonna have a hard time getting Kennedy and Souter on board.
And, I might add, that this is how it should be. Not because I’m a bigot – I think any state worth its salt should adopt a civil union law – but because that’s how a federal system is supposed to work. The resolution of a given social issue in Massachusetts may not be the best resolution for Virginia. Virginia should not be made to honor the Massachusetts rule, and Massachusetts should not be compelled to abide by the Virginia rule (it is for this latter reason that I find proposed amendments to define marriage in the federal constitution to be absurd – federalism is one of our strengths, and ought not be weakened).
Ah yes, the blind validating the blinder. **
Mercifully, the gay rights movement is not entirely made up of people like you. Were that so, you would have no allies – you’d alienate them all. **
You mistake a refusal to adopt a “by any means necessary” approach to social change with a lack of concern for gay people.
Mercifully, a just universe would not have you reproduce and put more of your sophorific semantic drivel in the world.
You have no fucking clue about me, gobear, or any other gay person.
Do you plan on burbling on? I really need a nail file if I’m going to see anything constructive come of your posts.
Yet oddly enough, with exactly the same type of information about me – namely, posts on a message board – you feel you have enough of a “fucking clue” about my character to label me a “bigot.” Pot, meet kettle.
I’ve clearly laid out my positions. Anyone – gobear, you, anyone – who draws a conclusion of bigotry from those positions is simply not paying attention.
And he jugs on, spewing into the air, creating more smog.
Blah, blah. Woof, woof.
Thank you, Mockingbird, for once again demonstrating your typical degree of committment to discussing issues calmly and rationally in an adult fashion.
Now we see DCU again attempting to claim the moral high ground, unwilling to either waver or just STFU.
Ah… the life of the pedantic passive aggressive hypocrite. Will DCU ever share with us how he got that way and maintains such a standard?
Mr. Pot, meet Mr. Kettle…**
Well, my mother met my father and they got married…
Seriously, though, I think you’re stringing pejoratives together without a thought. Let’s review:
Pedantic – Yes, I realize you think pesky things like “the law” and “constitutional government” are nitpicky trivialities. I, and I think most rational people, would disagree. The points I raise about the role of the judiciary and the federalist system are not mere details, but fundamental aspects of our society.
Passive agressive – My aggression is anything but passive, dear. It is quite active. (More seriously, Unca Cecil went over this term once; I don’t think I fit the definition).
Hypocrite – Like most folks, I’m sure my life is not free of hypocrisy. However, I think I can say with some certainty that my position is not hypocritical on this issue. One can support gay rights without accepting the “by any means necessary” school of thought on achieving those rights.
yawn
[sub]Zzzzzzzzzzzz…[/sub]
It was probably due to posting in the “More homophobia from Bush” thread too close to bedtime, and having this thread’s title rattling around my skull.
I dreamt that the board had turned into a Bigot Magnet. And it was beautiful.
I held it in my hands. It was one of those ancient bulk tape erasers, and it weighed about eight pounds. It was blue and yellow, and stenciled with the slogan “Fighting Ignorance Since 1973.”
The best thing about it was that it worked.
That is a great dream.
I do not believe you to be a bigot; I do believe that despite your ostensible support of gay civil rights your actual interpretation of Constitutional law puts you in real opposition to practical gay rights.
It is no comfort to me to hear that you’d like to sanction gay rights for gay people but your interpretation of the law forbids you to do so.
Yes, to hell with notions of representative democracy – it’s just so damned impractical… :rolleyes: **
Actually, my interpretation of the law only forbids me from using one avenue for gay rights – namely, the judiciary. I am perfectly in favor of working via the ordinary legislative process for the changes you listed.
I am a firm beleiver in representative democracy; howver, I do not believe that it must necessarily equal the tyranny of the majority. I know that you must understand the difference.
Just because he may understand the difference, it doesn’t mean he’ll agree or stop his demeaning diatribes.