Same clause used to justify Roe v. Wade.
I think so.
Which part of my statement do you feel indicates incipient hypoxia?
Why is everyone insulting Bricker here? He’s telling you what the state of the law as it stands right now is. That IS the way that the law stands at this very moment. He’s not making things up, he’s not looking for excuses to deny us gay folk the right to marriage, he’s not lying to you, he’s not twisting things to make it look a certain way. He’s describing the state of the law as regards same-sex marriage, as it stands now.
And he’s even noted that he supports the right of same-sex couples to marry. He and the other people arguing the law’s side in this thread have all pretty much stated support for ssm. But the facts stand in the way of any court that values precedent when it comes to what we’re looking for.
Handwaving at Bricker and John Mace about it won’t change anything. They’re not new-millenium Wallaces standing in the courthouse doorway. They’re just explaining to you why a court may rule against ssm or for DOMA.
I think the part of this that disturbs me the most is the way that people who try to explain the case law behind all of this are painted as bigots or obstructionists or just plain apologists for bigotry and obstruction. No amount of twisting and turning of the case law on our part is going to require the courts to rule in our favor. IOW, they’re not saying we don’t deserve the right to marry, they’re explaining the factual and legal reasons why we may not be allowed to exercise it. Give 'em a break, folks…
But, as I’ve said over and over and the Supreme Court has held, it is. You can argue that marriage isn’t a fundamental right, but it’s right there in black and white, in Loving, Zablocki, and numerous other cases. The only problem is, when applying that to same sex marriages, the courts have had to say that “yes, marriage is a fundamental right, but that’s only marriage between a man and a woman.” To me, that’s neither fair, nor honest legal analysis.
Apparently not.
Prior SCOTUS’ have said so. The problem is getting the courts (and more importantly the people), to get beyond their idiotic bigotry and apply the law that is already in existance to same sex marriages.
Emphasis added by me.
There’s the rub. There is a right to marriage in the Constitution. It’s just that, to people less understanding to you, it shouldn’t apply to those nasty gay folk. And that’s reprehensible.
Because of the way he states his position every time someone say “Here are the following reasons why gay people should be allowed to marry” sounds suspiciously like he is saying “No, those reasons are wrong.” That, and the fact that he exudes a certain feeling…
He IS saying “those reasons are wrong”…as regards the law. Because, as regards the law (as it stands now), those reasons are wrong. Or at least not promising.
And as to your last sentiment, I prefer to save accusations of homophobia for people who actually show disdain or hatred for us. Using vague allusions to it to discredit someone because they’re trying to explain how the law and the courts work and you don’t like what they’re telling you (even though it’s accurate) is vile.
jaj-jay: Thanks for that post. I do feel awkward arguing the legal reasons against SSM while I’m 100% in favor of it personally.
But you have never answer the question I posed in explaining why I don’t buy the “marriage is right” proclamation. Can a state just get out of the marriage business altogether? If so, then how can it be said to be a right? I’m not trying to be pigheaded here-- if you can convince me that states CANNOT opt out of the marriage business, then I’ll agree that the courts actually mean somehting when they say it’s a right.
Got ,as in “I understand you now”, not that I agree with you. No need to get snarky. Your post was unlcear. It looked like you were disagreeing and agreeing with the proposition at the same time. This part looked like you were disagreeing:
so I was just asking for clarification. Jeez…
And yet you yourself agree that this SCOTUS would not agree that gays have a right to marry. How then can you conitinue believing that they really mean it is fundamental right? If someone says one thing, but acts in a contradictory fashion, I’m inclined to believe they don’t understand what they are actually saying. This illustrates that point very well-- it ain’t no “fundamental right” if it can be withdrawn at will by the legislature. And if one ruling claims that marriage is a “fundamental right” and another discounts that premise, which ruling is correct? I see a lot of “sound and fury, signifying nothing” regarding this fundamental right.
In some ways you are right, but his saying what the laws are smacks of defending them, in my eyes. I think many of the rulings were wrongly decided, and/or doesn’t say what he thinks they say.
Oh, and he is a catholic, the group that claims to love the sinner but hates the sin. Excuse me if I feel a little suspicious of his claim to support it. If you feel that is vile of me, it’s no skin off my back. Shrug
Yes, I’ll take your interpretation over that of the lawyer…sure…
Because every Catholic in the world (including li’l ol’ gay me and quite a large number of my li’l ol’ gay friends) is a homophobic asshole just waiting with bated breath to stab all gays in the back. Of course! How did I not see it before!
:rolleyes:
Right. Remember that we’re talking about substantive due process here; it’s clearly not offensive to procedural due process.
The most honest and logical approach would be for the courts to extend intermediate scrutinty to sexual preference. It’s not a huge jump from gender discrimination. It makes perfect sense.
I’d much rather see that than see the rational basis test applied as you suggest.
Thanks very much for these words.
I find the eagerness to embrace ignorance instead of accurate understanding of the law to be scarily inapposite to this board’s raison d’etre. In Scott’s mind, it apparently would be better to hear honeyed words of undeserved merit when describing the legal recognition of same-sex marriage. Describing the real state of the law just suggests a certain… something. Right?
Jayjay: Heartfelt applause for some much-needed posts re: Bricker and John Mace’s positions. Because I disagree, quite vehemently, with Bricker’s legal perspective (and to a lesser degree with John’s as well), it often sounds like I’m putting him down personally. I have no desire to do so; except for one occasion when I thought he was belying his self-proclaimed support by a series of posts I apparently misunderstood, I do understand what Rick is trying to do, and appreciate his efforts to explain the intricacies of constitutional case law doctrines. And scarily I find myself agreeing more and more with John.
It does need to be said, though, once again, that as regards the U.S. Constitution as interpreted by current case law, marriage (i.e., the state of contracting with another to live as spouses, and having such contract recognized by the state) is a fundamental right. See Hamlet’s cites above.
That certain things claimed as valid marriages by those involved in them do not meet some individual’s personal definition, is almost moot. Perhaps a gay couple is not what John considers to be included in the concept of a valid marriage, but I’m sure it would take little effort to find statements by Virginians demonstrating that what the Lovings entered into in D.C. was not in their eyes a valid marriage. I have close friends who believe that the marriage of first cousins is an abomination, a form of incest; any number of state statutes disagree with their view. Hence the definition I stated above, which does not, be it noted, make any assumptions about the people.
And, of course, the states undoubtedly have powers to discriminate for non-suspect reasons. My honorary granddaughter is 13, and in love with a boy whom she will love forever and with a depth of love never felt by any other human beings since time immemorial – or so she feels. While she is level-headed enough to know that she needs to wait and grow up some, when she’s thinking rationally, I am quite happy that she is way below the age of consent for marriage in her home state. And in the course of my chequered life, I used to know a young man who was quite proud of the fact that he and his sister were sexually intimate; those are genes I don’t particularly see as valuable to perpetuate.
The issue at hand is whether a requirement that the parties to a marriage be of opposite sexes is in fact a violation of some constitutional protection (notably the EP clause, though arguably also the DP clause, which is what was principally invoked in Loving). I contend that Romer suggests that sexual orientation is not a valid ground for EP discrimination. I have not seen that contention explicitly addressed by Bricker, although it may be that some of his responses here were intended to deal with it and I’m being dense in not seeing it (that happens with me and Rick’s comments from time to time). And the fact is that, although in general only gay (and bi) people will want to marry someone of the same sex, legally the issue is dealing with the rights of all. If, to cite an example I’ve used in the past, something happened to both my wife and Amanda’s mother, I love her and her brothers and her father enough to seriously consider entering into a platonic quasimarital relationship with him if he so desired, to assure that such resources as I have would go to him and the kids and to be there for him and them. It’s a very odd hypothetical, but one that is meaningful to me, and makes it not just a fight on behalf of gay people (worthy as that may be from an altruistic standpoint) but one for the rights of everyone, me included.
Pfft. No sweat. Ever since I actually “got” how you approach these questions, I’ve been annoyed by people who can’t separate your personal opinions from your professional.
Plus I remember the thread where you actually “got” what the fight for SSM was all about and did a 180 as far as your attitude toward it went. Damned if I can find that thread, though…I wanted to cite it in the post you quoted but couldn’t remember which one it was. Regardless, I respect someone who can look at evidence or testimony from those most affected by a point of law and change their personal opinion when it becomes obvious that that point of law actually hurts the people in question.
The foundation of the government promises freedoms. Group A demands them. Group B steps up and put up restrictions. The restrictions are the law for a bit, till people point out that they violate the foundations. Group B defends the processes that allows the restrictions, then after a while losses, and group A gets what was promised re: freedoms. Group B claims to be an important part of the process, and sees nothing wrong with what they are doing.
There’s nothing wrong with the process involved here. It’s the same process that has driven our goverment(s) since the inception of the republic. What “Group B” on this board is actually trying to do is explain to you how the law stands NOW and why this makes the courts unlikely to grant SSM. That does not speak in any way, shape or form to “Group B”'s personal feelings on the matter, especially when “Group B” has a large proportion of people who deal with the law and the courts professionally every single day.
What you’re doing is stripping the situation so absurdly far that “Group B”, who are only trying to explain to you why the historicity of case law makes SSM-as-fundamental-right-through-SCOTUS unlikely, is collapsing into the heretofore unnamed “Group C”, which consists of those who are quite happy to have things remain exactly as they are because they’re a bunch of bigoted assholes who hate gay people. When in reality “Group B” has shown that they personally support SSM, if not the process through which we are currently trying to make it reality. And, ironically enough, in showing us why our current attempts probably won’t work and therefore trying to get us to try another tack that may work better, they open themselves up to accusations of homophobia and bigotry from people who can’t wrap their minds around the possibility of separating your professional opinion from your personal opinion.
Sure…
Anyway, back in post 183, you asked. I answered. Now, I doubt either of us will change our minds, so be happy with what you have.
Oh, yes, your majesty. They’re telling you how things work, Scott. And regardless of how you feel about it, that’s how things work. Running around screaming “It’s not how things should be!” and calling people who are trying to deal with the real rather than the ideal homophobes, even parenthetically, is counterproductive. Personally, if this is the help you’re giving, I ask you, as a gay man, to not help.
Which is why I pointed out that it may not be a capital f Fundamental right, but it is a fundamental right. States could, I suppose, opt out of the marriage business, but, if they’re in it, they have to act constitutionality. The definition of what is a fundamental right is not whether or not the State can opt out of it.
My apologies. As Gary Larson once wrote: It was late and I was tired.
Once again, I have yet to find a Supreme Court case that applies the John Mace test for determining a fundamental right. And, when the legislature does act, even if it is not required to, it must do so constitutionality. You have two Supreme Court cases, and I can provide more if you like, that clearly, at least to my mind, state that marriage is a right of fundamental importance. If this, to your mind, is “sound and fury signifying nothing” I fear nothing will convince you otherwise.
I will attempt one more analogy to try and convince you. SCOTUS, in Bowers v. Hardwick, did the same thing that the lower courts are doing now: saying that there is a fundamental right (in that case to sexual intimacy), and then restricting the access to that right to “people we like”. In earlier cases and noted in Bowers, a man and a woman had the right to sexual intimacy, but Bowers said that that right doesn’t apply to gay folk. They relied, in part, on the repetition of the importance of tradition and the traditional hatred of homosexual conduct. In doing so, they said there is a fundamental right to sexual intimacy, it just doesn’t apply to homosexuals.
Then came Lawrence. Lawrence, for all it’s poor writing, made the case that defining the right to sexual intimacy and limiting it only to opposite sex partners in unconstitutional. They acknowledged the Constitutional problem with respecting a right to only one group of people, while denying that right to others, more hated, groups, and overruled Bowers.
I hope this analogy helps you understand my points a little better. The granting of a right to heterosexuals, and denying that same right to homosexuals, whether that right is the right of sexual intimacy or same sex marriage, is unconstitutional.
That would be fine by me. Then the recognition of gays as actual people wouldn’t have to be so piecemeal, where they must fight for the right to sexual intimacy, then marriage, then employment discrimination. However, when you say it makes “perfect sense”, does that mean it is decision you would make as a judge and that you support as a lawyer? Because I haven’t seen many judges adopt it.
And I’d much rather see a continuum, where the “fundamentalism” of the right is weighed against the valid interests of the State, rather than the patchwork rational basis, rational basis with bite, intermediate scrutiny, kinda strict scrutiny, strict scrutiny, and no way in hell tests. We’ll see what happens.