I’ll bail out at this point. Perhaps, as been suggested, I’m grossly overestimating the ability for civil unions to mirror marriage–in fact, some are stating that many civil union proposals do not do as I’m suggesting, and specifically leave out important rights associated with marriage. If that’s the case, I need no explanation. If it’s not the case, I don’t think we’re going to make any ground here. Thanks.
Stratocaster, I perhaps owe you an apology, and I think the latter double dozen of posts in this and the parallel thread have been a bad case of people “posting past each other” based on assumptions that are not shared.
First, your hypothetical civil union identical to marriage is, in fact, purely a rose-colored-glasses hypothetical. I fully concede your right to advance it, but as a matter of practice it has no more real likelihood of being accepted than full-fledged same-sex marriage. In support of this, I offer you the Vermont Civil Union Law, which was by explicit legislative intent, in response to the relevant court case, defined as a non-marriage conveying exactly the same rights as a marriage. Well, in Vermont that is true. But I believe there are four states that recognize the legality of Vermont civil unions.
There’s a court case wending its way up the Federal ladder which bodes well to be explosive. Two women contracted a Vermont civil union, and one bore a child. The mother then decamped to Virginia with the child, had a born-again experience, and is denying custody and visitation rights to her former partner. Vermont, on the other hand, has awarded visitation rights to the partner who remains there and is, under Vermont law, half of an undissolved civil union in which the partners are living apart. Under Virginia law, however, no such union ever existed, and Virginia courts are refusing to grant the visitation rights awarded by the Vermont court system to a woman who in their eyes had no legal relationship to the child whatsoever.
What SCOTUS does with this case, and in particular the grounds on which they do it, will almost certainly produce new precedent law on the entire issue of gay unions of any sort.
But for the moment, I place this before you to demonstrate that a civil union is in the nature of things not the legal equivalent of a marriage. To prove my point, contemplate only the hypothetical in which a man and a woman marry in Vermont and the same events happen, and what the court rulings would be.
Exploring the issues a bit further, and not in answer to Stratocaster:
Now, I grasp clearly Tom~'s point that when legislators in 1908 codified the Alabama (picking a state at random) family law statutes, they meant clearly by “marriage” a situation in which a man and a woman said their vows in front of a clergyman or judge and then lived together as man and wife.
The point behind the Equal Protection argument is that Constitutional practice requires that you have a valid reason for discriminating between two people on any basis. If I am making a movie about the Norwegian Resistance in World War II, and I refuse to cast Denzel Washington as Vidkun Quisling, I do have a valid reason for discriminating against him by race. (Aside: One of the things I like most about Morgan Freeman as an actor is that he can, as a tour de force, make you ignore or focus on his being black, as the role calls for.) On the other hand, if I run a random business with a dozen regional offices, and require that the Regional Manager be male, I’m committing sexual discrimination without just cause.
To say by law that I am delimited in entering into a contract to people of only one sex is on its face a violation of the Equal Protection Clause, unless there is some reason valid at law for such a limitation. Right there is where we fall into problems. Is there some valid reason why one can only contract marriage with a person of the opposite sex? If so, what is it?
In passing, here, Stratocaster, I note that you have mentioned being Catholic. In no way do I wish to sound adversative to that, but I raise it for a good reason. Catholicism has a rather thoroughly developed theology of marriage, which is inculcated in good Catholic children as a part of their moral upbringing, and it stresses the importance of reproduction in marriage. With all diffidence, I submit to you that that theological point has likely colored your understanding of what constitutes a valid marriage, and hence your discussion of same-sex marriages here.
As a matter of law, though, I offer the point that questions of religious belief and personal ethics cannot be completely divorced from legal issues, but they cannot be permitted, in a state which has as a basic constitutional principle the Establishment Clause, to define what is legally permissible.
If two senior citizens fall in love, the fact that the woman is past menopause is not a valid reason for denying them the right to marry. Likewise a couple in which the woman has had a hysterectomy, or the man his tubes tied, or he’s been rendered sterile by mumps. In fact, there is no legal reason to forbid the marriage of a couple who desire to marry but practice complete celibacy. I have thrown more than one fit on this board against people who denigrate my own childless but very successful and meaningful marriage.
I offer to Tom~ and others working with his exploration of “what was meant by marriage” the idea that original intent is not always the appropriate principle in exploring the full implications of a constitutional principle.
In 1972, Uncle Harry, back from Vietnam but having lost his testes in the war, makes out a will providing that his estate shall go to his only nephew Tom or to “the children of Tom’s loins” – i.e., children begotten by Tom, as opposed to adoptive children. Tom and his wife Violet, however, are plagued by infertility, and resort in 2000 to a fertility clinic, which produces an in vitro embryo from an ovum of Violet and Tom’s sperm. The embryo is implanted, Violet gives birth to Jacob as a result. Tom is killed in a car accident in 2002, and Uncle Harry passes away in 2003. Does Jacob inherit Uncle Harry’s estate? Is he, legitimately, a “child of Tom’s loins” albeit by a technique not contemplated in 1972? I would suggest that few people would argue he is not, although the classic meaning of “child of one’s loins” – a child begotten by Tom by sexual intercourse – is not applicable.
Now, to address John Mace’s issue: Yes, every law should ideally be the product of the popular will. However, in the real world, this is not the case. Special interests, public disputes, etc., can often influence the legislature to do less than the ideal.
For this reason, American jurisprudence takes a rather nuanced stand: The act of the legislature is presumed to be good law. The onus of proof is on the party challenging it. But if a challenge demonstrates that the law works to restrict a right guaranteed in the Constitution, then the law is deemed null and void as violative of the Constitution, or at minimum not applicable in the particular case before the court. For example, the right of cities to annex from and abandon land to the surrounding county has never been voided – but the City of Tuskegee’s attempt to disenfranchise its black citizenry by annexing abutting land owned by whites and abandoning city areas owned by blacks, was in fact violative of the blacks’ due process rights. (Bricker may have some comments on that case.) It is when a plaintiff with standing can demonstrate that a law works harm to a Constitutionally guaranteed right by discriminating against him as a member of a suspect classification that the presumption of validity is overcome.
How this applies to gay people is, I think, fairly evident. If a law operates to give putatively equal rights to people in a manner that unfairly discriminates against a suspect classification, it is not operating to give equal protection and is therefore void. For example, say that there is the very technical job of widget installer. To legally become a widget installer in the State of West Carolina, you must (1) pass a course of study in safe and effective widget installation, and (2) be examined by a board of licensed widget installers and in consequence be awarded a widget installer’s license. Installing widgets without such a license is a crime at law. Sounds fine – but the board of licensed widget installers are all men, license only other men, and find pretexts to reject women who have passed the widget installers course. Suddenly it becomes a case of discrimination on the basis of sex, and subject to equal protection laws.
Okay, under current law everyone has the right to marry an unrelated unmarried adult of the opposite sex, both parties consenting. But note that while this is formally equality before the law, it works a wrong against gay people, who are not interested in consenting to such a marriage, as opposed to straight people, who are.
Further, it discriminates against the rights of all people. Flip back to Uncle Harry and his will. Neither Uncle Harry nor Tom are gay, but suppose Uncle Harry has a government pension of the sort that continues for his spouse. Uncle Harry, involuntary eunuch, has never had an interest in marrying for love or sex. But he dotes on Jacob, and Violet rather than Tom was killed in that car accident, which severely injured Tom and left him with a rather small disability award to live on. Uncle Harry has a substantial pension, which will terminate with his death since he is not married, but minimal savings. Suppose Uncle Harry and Tom agree to marry. Tom then becomes Harry’s surviving spouse, and entitled to that “widow’s pension,” providing for Jacob as Harry wanted. Sex is not at issue, but the issue of providing for family is. (And never mind, for the moment, the idea of an uncle/nephew marriage being incestuous; I’m building this hypothetical to illustrate a point.)
If it had been Violet rather than Tom, no one would object to Harry and Violet marrying, and would consider Harry’s act selfless in assuring that Violet and Jacob are provided for. But that’s not how it worked out in this particular hypothetical situation, and it becomes evident that there is discrimination on the basis of sex. Note that the Harry/Violet marriage would be a valid one under any state’s laws, voidable on the basis of Harry’s inability to have sexual relations, but only if Violet chose to seek an annulment on those grounds, not intrinsically void and not voidable on the basis of a third party’s interference.
The motivation of Harry and his putative spouse would be identical: to provide for Jacob and his surviving parent. The distinction between the validity of the hypothetical marriages is purely on the basis of sex – not sexuality (which I intentionally ruled out by defining the circumstances as I did) but legal gender. As a matter of law, the distinction between the odd but completely valid marriage of Harry and Violet, and the equally odd and illegal-under-present-law-in-49-states marriage of Harry and Tom, is purely on the basis of the sex of Harry’s proposed partner – even though the motivation is identical.
I notice in your somewhat detailed discussion of the Equal Protection Clause, and your examples, you have glossed over a somewhat key point: the TYPE of classification the law makes is relevant to how the law is analyzed.
A law that creates racial classifications is subject to strict scrutiny - the most narrow and demanding scrutiny standard. The law must be narrowly tailored to accomplisha compelling and legitimate governmental objective.
A law that creates a classification based on gender is also subject to Equal Protection analysis, but under the more relaxed standard of intermediate scrutiny.
Laws that create other classifications – such as laws that forbid marriage recognititon for same-sex couples – are weighed under the rational basis test. This test does not ask if the law is the best way, or the most rational way, to accomplish the desired end. It does not require that the law’s rationale be consistent with other laws. It merely asks if the government could have any conceivable rational basis for the law. It’s been described, only somewhat tongue-in-cheek, as the “test that’s impossible to fail.”
For this reason, I believe that forbidding recognition of same-sex marriage is perfectly constitutional. As noted above, I don’t believe it’s wise at all; I believe it’s not the right choice for a state to make. But the Constitution does not forbiud unwise laws. The Constitution does not require that a law be the best choice for a state to make.
Same-sex marriage bans are NOT violative of the Equal Protection Clause. Baker v. Nelson, 291 Minn. 310 (Minn. 1971), dismissed for want of a substantial federal question, 409 U.S. 810 (1972). That dismissal (unlike a simple denial of cert) creates binding precedent.
Unless and until the Supreme Court overrules itself, the federal Equal Protection Clause does not compel same-sex marriage recognition.
I know I’ve challenged you on that before, with no more result than anyone else: What would that “rational basis” “conceivably” be? Once again, you can’t scrutinize an argument that doesn’t exist.
That approach to continuing discrimination works even better than lame rationalizations. Simply pretend the problem doesn’t exist. Thanks for the information.
Next up: Full Faith and Credit , possibly Due Process.
You keep arguing the way things are. ElvisL1ves is arguing the way things should, and I believe will, be. Just as Lawrence threw Bowers on the scrapheap of history, there will come a day when Baker v Nelson will be overturned. I think it’s clear that doctrinal developments, such as the Lawrence and Romer decisions, are changing the basis of that decision. In 1972 what percentage of people supported the decision? And now?
Yes, and thanks. Such changes are brought about by, in large part, discussions and explorations of exactly the type we’ve been doing here, and only by doing so. At least at first; other methods are helpful in helping the cracking of the dam turn into crumbling and torrents. Minds and hearts do change. Society does change. But not by “deluding” oneself into thinking that the way things are must be the way things should be or, for that matter, the way things always have been.
I should have clarified that the Constitution exists in large part to provide protections against the popular will of the day. The popular will is, as the Founding Fathers understood, too easily manipulated and can too easily have its baser nature aroused to be a fully reliable basis for a just society. Codifications of our higher principles, that cannot be easily overturned or ignored, are absolutely needed. The 14th is such a distillation.
Excellent point, Bricker, and thanks for the discussion of levels of scrutiny. Though I think I understand them reasonably well, I’ve never felt really comfortable attempting to rattle off the explanation by way of informative post. (When it’s convenient, speak to what “intermediate scrutiny” calls for by way of test – I’ve never been clear on that.)
Yes, Baker v. Nelson’s dismissal for want of federal question does set a precedent. But I’d observe that there is a much clearer and more recent precedent, though not quite as strictly on subject: Romer v. Evans. It is unconstitutional to institute discrimination against gay people simply for being gay, with no clear rational basis behind singling them out. This is one of the rare cases in which a law fails the “rational basis” test, deemed nearly impossible to fail in most circumstances. (You’re welcome to distinguish between Colorado’s Amendment II and a law prohibiting same-sex marriages, and I’ll be glad to listen, but I trust you see the application of Romer’s precedent which I envision. I’d need to see a clear rational basis, however weird, in why any opposite-sex marriage but no same-sex marriage is legal (ceteris paribus, with Sen. Santorum’s dog, the precocious twelve-year-old, and the rest of the Red Herring Gallery seated in the audience and told not to make themselves a nuisance).
And that may well be what comes to pass.
But I argue that it should not – although I absolutely support same-sex marriage, I do NOT support its enactment by that method. It’s a worthy goal reached by unworthy means.
And I have some hope that I’m right – I think Lawrence was unwisely decided, and in any event Lawrence was decided on Due Process, not Equal protection grounds.
Romer can be readily distinguished from the present issue. In Romer, Colorado’s Amendment 2 was struck down because:
The Court found that Amendment 2 failed the rational basis test, in other words, precisely because its ends were so broad, encompassing all sorts of consequences, and yet it was so narrowly tailored as to strike only at gays. Here, the effect is as narrow as the classification. The same finding cannot be made.
Now, of course a future Court could extend the rationale in Romer. But it’s not the case that Romer compels a result here.
So from a purely jurisprudential standpoint, the Court has simply not yet gone the distance… and from a policy standpoint, I fervently hope they do not. The backlash from such a decision would almost certainly guarantee the passage of a federal “marriage amendment” and set the entire process back decades.
Today, yes. A decade from now, it will be received with an “about time”.
Well, let’s see, shall we?
So the rational basis test is only almost “impossible to fail”. 
Yet, when targeting gays, there it failed nonetheless.
Why not? Mixed-sex-only marriage laws are similarly narrowly tailored as to strike only at gays. The consequences aren’t even as broad, in fact they make it clear that *only * gays are struck at (and again without a stated basis in the state’s interest whatsoever). Was it the mismatch that caused the problem, then? Would the CO amendment have been constitutional if broken out into a bunch of individual amendments, each with its own “rational basis”, rather than an omnibus? Would some consequences of discrimination have passed the almost-unfailable test and not others? Like what? That makes no sense.
Even if that were obvious (it isn’t), what do you propose instead?
Probably - perhaps even sooner. But we’ll get there by the legislative process and we won’t do violence to the idea of self-governance while we’re getting there.
Probably - perhaps even sooner. But we’ll get there by the legislative process and we won’t do violence to the idea of self-governance while we’re getting there.
That approach worked fine for ending school desegregation, didn’t it? Nobody needed the Supremes butting in; Congress was just about to fix the problem themselves, weren’t they?
You have a knack for failed analogies.
By the time that Brown was issued, there had been over twenty years of growing (if still low key) pressure to rectify the “Separate but Equal” provision, including enough pressure on President Truman that he desegregated the military by executive order six years prior to Brown.
When Brown was issued, it addressed only school desegregation (although it paved the way for broader interpretation) and it took ten years before Congress actually passed a law (as opposed to SCOTUS making a declaration) to render discrimination in other forms illegal. It addressed de jure (not de facto) school segregation that was active in only a small number of states (so the larger number of states where de facto segregation was practiced were not immediately threatened by the decision).
And the climate of the country was different, so the calls for Constitutional Amendments were rather scarce.
In contrast, of the three states that have had Same Sex Marriage declared illegal (or even had opposite sex marriage declared “possibly” illegal) by judicial fiat, two of them had the court decisions immediately overthrown by popular vote in referenda asserting that marriage must be between persons of opposite sex. And, as soon as one state accepted Same Sex Marriage, based on a judicial decision, seventeen separate states raced to the polls to pass constitutional amendments that would prohibit their courts from behaving in a similar fashion to Massachusetts.
So, on the one hand, we have a limited action by SCOTUS to act on one specific action of government (the maintenance of schools) that, while setting a precedent for broader action, took no actual further action, itself. That limited action then led to enough national agitation to call for a legislative solution after 10 years and the legislative solution did not prompt a backlash to change the Constitution and remove the remedy from the courts.
On the other hand, you are seeking an immediate judical solution, with successful precedent in only one state, and a whole raft of evidence that thare are already forces prepared to change the Constitution to render your solution moot–forces that have already been successful in ~40% of the states, red and blue, large and small.
If you think that using the courts to declare same sex marriage legal in more states is not going to send hordes of opponents rushing to the polls to pass more changes to state constitutions (and possibly to the Federal Constitution) to outlaw recognition of same sex marriage, you truly are not paying attention. Bricker and I both support Same Sex marriage. However, we would prefer that the tactics employed to achieve it actually bring it about rather than causing a backlash making it even less likely to happen.
With all deliberate speed.
And I’m wondering when Virginia would have gotten around to repealing its anti-miscegenation statute – especially with the Nixon and Reagan Presidencies coming along in a few years.
After all, everybody knows that none of the Southerners were every prejudiced against black people, they just were standing staunchly for judicial self-restraint, right?
I discussed Congress’s slowness, and you’ve discussed the Executive and Judicial taking up their responsibility instead, as they in fact did, despite heavy resistance - even if Bricker would say they “did violence to the idea of self-governance”. Oh, wait, look, here:
As a local sports radio talk show host is fond of saying, “You’re *makin’ * my point!”
Spending less effort looking for ways to snipe at those with the temerity to call you wrong would be greatly beneficial. 
Apparently, I needed to make your point, since your little drive-by was rather unclear.
My reading of your context-free insertion was that having the courts change the rules on marriage would be exactly the way to go, since Congress was not moving fast enough to suit you.
My response simply showed that a direct court intervention for same sex marriage would not be directly analogous to the Brown decision and that it would probably have the diametrically opposed result to the one for which you hope.
As to calling me wrong: feel free any time. In the context of this discussion, you have called me wrong several times, but failed to indicate an actual error on any occasion. Nothing I have posted to challenge your unsupported or erroneous assertions meets a definition of “sniping.”
I have determined that I’m competely incapable of being objective about this issue. Of COURSE I want instant SSM, and if that requires judicial intervention, so be it. Of COURSE I want to toss a court victory in the faces of the stultified bigots who insist that my relationship is inferior to theirs. Of COURSE I want it NOW!
But the whole backlash thing is a point to consider. Although even in typing that, I’m getting a bit of stomach pain from the idea that we have to kowtow to the bigots because otherwise they’ll make sure we never get equality. And I look back at the civil rights movement of the 1960s and wonder why they were allowed to get angry, why they were allowed to demand immediate equality, why they were allowed to get their rights via the courts, when my people keep getting told to wait it out, give it time, the tide is turning, maybe your grandchildren will be able to be actual full citizens of this country regardless of their sexual orientation.
I simply can’t maintain objectivity, courtesy, or decorum on this subject anymore. Period. I don’t know which way is best. I don’t know how to fight for this anymore.
jayjay: I think a better way to look at this is that the best strategy is to take a step-by-step approach to gaining ultimate equality. One needn’t simply wait things out completel, but rather go for the political gains that are possible now (some sort of legal recognition for some rights) instead of screwing up the whole process by insisting on an all or nothing approach. I don’t see any other realistic choice. The possibility of a legislative backlash against a federal judicial decision is not an iffy thing-- I see it as a near certainty.
One thing to remember is that, at least according to public perception, the Civil Rights movement did not begin in expressions of anger by the black community. From the 1900s through the 1940s, the movement took the form of essays and speeches directed at the reading public, calling for intervention to halt lynchings or to put an end to policies of exclusion. It was fairly quiet pressure from the black community, linked to reports of white-on-black violence that got Harry Truman to desegregate the armed forces. In Oliver Brown et al v. The Board of Education of Topeka, Kansas, multiple cases of segregation were joined together for the purpose of fighting de jure school segregation, but there were no public protests or displays of anger and the case was not pled to remove all laws of segregation in the country. When Rosa Parks challenged the bus policies, the black community simply boycotted the bus system. They did not launch angry displays at the community. Finally, when the community began to attempt to desegregate the lunch counters and, later, began to organize marches to insist on their rights to vote and to call for what became the Civil Rights Act of 1964, they maintained peaceful resistance to the laws and let Bull Connor and his dogs display the anger. Up through 1965, the number of “angry” blacks who caught the public’s attention were few and far between and were vastly outnumbered by the whites who resorted to dogs, fire hoses, axe handles, kidnapping, and murder to express their rage.
In fact, it was the expression of black anger (however legitimate) that began slowing some of the process of change in the mid to late 1960s.
As has already been noted, however, black rights were not secured through the courts. The deciding victory in the Civil Rights movement was the Civil Rights Act of 1964. The courts did chip away at the various bulwarks of segregation–the schools, the poll tax, etc.–but it was the overwhelming change in popular opinion following the attacks on peaceful marchers that established the support for the various peices of legislation that eventually made Jim Crow illegal. Had Stokely Carmichael of 1968 been widely reported in the news in 1958, it is entirely possible that there would have been no Civil Rights Act (and even possible that some court decisions might have been decided differently–as Mr. Dooley astutely observed: “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”).
I think that getting state courts to chip away at limited discriminatory laws while pushing for popular recognition of the concept of same sex marriage until there is sufficient support for a legislative change to the law regarding same sex marriage will be the best approach. I do not believe that it will take generations and I also believe that it will suffer fewer reverses.