But that’s not the point. You can’t take some’s statement about something like marriage without understanding what they meant by that word. Of course society’s attitude changes over time. Of course words even change their meaning over time. But if you want to use a person’s statements to bolster your argument, you need to consider what that person meant by using those particular words. Antimiscegenation laws did in fact change the definition of marriage, because it was not generally illeagal for people of different races to marry before they were inacted. But it has never been legal for same sex couples to marry and that term has never been used for same sex relationships (within the legal tradition of the US).
As much as I favor legalizing SSM, that would indeed be a change to the definition, so I don’t understand your point. The difinition isn’t being changed to exclude same sex partners-- it never had that meaning in the first place.
Again, I’m not sure how that is relavent. Certainly the court wasn’t saying that civilization and progress could not happen w/o SSM being legal. And what burden of justification has been deemed appropriate by the SCOTUS for matters of sexual orientation? Certainly not strict scrutiny, which the level used for racial discrimination.
As Justice Greaney stated in Goodridge: “A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide.”
Again, drawing on Loving and Zablocki, prior to those rulings, marriage was only available to couples of the same race, or persons who did not owe child support debts. Simply repeating the mantra that marriage is between a man and a woman adds a requirement that is not, even using the least strenuous test, not rationally related to the goals of marriage. Marriage is, to the government, a contractual relationship between two people and licensed by the state. The repetition that marriage has been traditionally between a man and a woman, does not end the discussion, nor does it provide a reason for the exclusion of homosexuals.
In the morass that is constitutional law, there are, generally, two ways a legislative enactment will be subject to more than the rational basis test, if it involves a fundamental right or involves a suspect class. Now, I do not buy the argument that the ban on same sex marriage requires a higher level of scrutiny because it discriminates on the basis of gender (although I believe O’Connor thought it did). And, as Romer points out, discrimination against homosexuals does not (though I believe it should) involve a suspect class. However, looking at Zablocki, the Court stated: “By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” The Court went on to state: “When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Since, of course, I do not believe that the ban on same sex marriage meets the rational basis test, there is no way it meets this somewhat higher test.
Or, to put it another way, (The way I was about to post, before you posted first) many people grow up hanging on to the idea that someday, they will tshare their lives with someone they in a state called marriage. Surprise! Tuns out that person is off the same sex as them. It’s still marriage.
The only point I’m trying to make is that when marriage was declared a “fundamental right”, I doubt any of the justices who agreed with that would also have agreed that it meant gays should be allowed to marry. So, when looking at what implications that statement has, I have to consider what the people who said it meant. That’s all. We can argue whether some people now think that it means something more, but I don’t believe it did at the time of Loving.
Further, the statement “marriage is a fundamental right” has as much meaning as the statement “education is a fundamental right”, which is to say that it has no meaning at all. In both cases, a state could opt out altogether, and no ones rights would be violated. Not so if a state decided to opt out of recognizing the right of free speech or the right of habeas corpus.
And there are other jurists who think it does. Where does that leave us? Unless, of course, you think that the SCOTUS would rule as you would, which I doubt. But we’ll have to wait to see on that…
…that some judges hold that the “rational basis” test is a “gimme” – as I noted above, the traditional understanding is that if a legislative body found some valid reason to pass the law, clearly in their minds related to a legitimate governmental interest, the presumption of constitutionality has not been rebutted, in fact becomes irrebuttable. Roy Moore, for example, would see DOMA as passing the “rational basis” test owing to his understanding of the goals of the Constitution. As I suggested earlier, and absent the criteria you specified, “rational basis” becomes “the judge is convinced the legislature had good reasons.”
Note the exceptions which Hamlet outlined above, in his post of 3:22 PM today. And notice the reiterated definition of marriage as a fundamental right. Though I understand that in originalist jurisprudence, Loving met the original purposes of the Fourteenth and SSM does not, the point was clearly made in Romer that discrimination against gay persons qua being gay does not meet the rational basis test. While I can and have advanced hypothetical reasons why a non-gay person might want to enter into marriage with a person of his/her own sex, it is evident on the face of it that, e.g., prohibition of someone wishing to endow a same-sex Platonic friend with a widow’s/widower’s share of his/her pension is not the predominant reason for opposition to SSM; “keeping them perverts from defaming the sacred institution of marriage” is. Ergo, in my personal opinion, the use of state marriage statutes to prohibit recognition of SSMs is contrary to the “rational basis” test. I can grasp why you (and I) might see the likelihood of a court finding otherwise.
In view of the present state of jurisprudence, though, the Tenth Amendment and FF&C are as defunct as the Fugitive Slave clause. I simply echo Barry Goldwater in wondering how people who hold those views can have the chutzpah to call themselves “Conservatives.”
And prior to Loving “marriage” didn’t mean one between a black man and a white woman in Virginia. I know you’re highly impressionable when it comes to the original intent of the precise meaning of words, but you have to ask yourself what is a marriage and why does it have to be between a man and woman. And if you’re only answer is “it’s always been that way”, you’re not providing a rational basis.
Both Loving and Zablocki clearly state that marriage, if not a capital “F” fundamental right, is of “fundamental importance”. In Preiser v. Rodriguez, the Supreme Court specifically found that education was not, in fact, a fundamental right. In Loving and Zablocki, they did.
In Great Debates. Discussing the issue. You thought perhaps we’d solve this one once and for all? Optimist.
I don’t see this Supreme Court finding that anytime soon. And it won’t be the first time they’ll be inconsistent with precedent when it doesn’t suit their purpose. But I also believe that in another 100 years when the public, legislature, and judiciary look back, they’ll be appalled at the blantant discrimination against homosexuals that had the full support of this presidency, and the evangelical minority. Changing hearts and minds ain’t easy.
I am starting to have a major problem with all the “ifs”. On one hand, we are told it is the text that matters (textualism?). If so, then nothing in the original text said only one man and one woman. If we look at intent, we are scolded for playing “mind reader”. If we look at “tradition”, then slavery and lynching were once a tradition too. Let’s stop playing games. You can’t hold to textualism, then switch to originalism, and then go for “intent” with a quick stop by tradition whenever it suits you. Stick to one. DOMA was nothing but a stopgap to placate the backlash against gays and gay friendly people. Nothing more. Same with “don’t ask don’t tell”. But neither was in the Original text of the constitution. Likewise, “it’s always been that way” is nonsense. It wasn’t, at least not in the old civilizations “we” heavily borrowed from. The simple fact is, people “don’t want none o’ them thar faggots aroun’ these here parts”. Plain and simple. Just like they didn’t want none o’ them thar Chinee, Injuns, Irish, or everyone else.
Too many people believe in freedom and liberty for “me” and none for everyone else. Now, instead of a rope, they use God, fancy words and circular arguments. It’s still the same thing.
By the way, Beres, who leads the Christian coalition, one of the more vocal “supporters” of the “sanctity of marriage” is now facing charges of abusing children in his own family. So much for “holy marriage and the welfare of the children”. Next argument???
Gays only want one thing - to be left alone. They don’t want to “recruit” anyone’s children, they don’t want to forcibly redecorate. They just want to be left alone.
I have no valid explanation, and neither, in my opinion, do the courts. The decisions I’ve seen continue the marriage is a fundamental right, but only if it’s one man and one woman “argument”. You have something better?
I’m just laying out the current state of the law. Your answer is that the current state of the law is wrongly decided. I don’t disagree that the ultimate result of the current state of the law is wrong.
I would ask, just when were the “man and woman” part got added, and exactly what the reasons were. Then i would ask, does said state then choose to ignore marriages in say Massachusetts. Finally, I would ask what business does the Supreme Court or federal legislature have in writing additional laws that are already covered by the states. The only reasons I can see have not a thing to do with anything but religion and prejudice.
Actually, the word itself did NOT mean only people of the same race. If that were the case, it would not have had to be spelled out explicitly in antimiscegenation laws, because a VA court would have simply interpreted marriage as being only between people of the same race. Do you see the difference? People weren’t relying on the inherent defintion of the word to exclude interracial marriage, because THAT WASN’T THE PART OF THE DEFINITION. Look at how antimiscegination laws were justified-- as being necessary to keep the races seperate, as God intended. The issue of *Loving *wasn’t the meaning of the word “marriage” but whether it was legal to discriminate by race.
But that’s not even the argument I’m trying to make here. My objection (if I understand you correctly) is that you seem to making the case that *Loving *directly implies that SSM must be legal. That simply isn’t true.
I’m confused. Are you’re backing off from your assertion in post #157 that marriage is a fundamental right? Your first sentence seems to imply “yes”, but the third seems to state “no”. If “yes”, do you think that a state would be forbiden by the SCOTUS to opt out of the marriage issue altogether-- ie, to simply have no marrage laws at all?
Agreed. We’re in GD. But I don’t see where you offered a rebuttal to **Bricker’**s explanation of what “rational basis” means wrt SSM.
It has the support of much more than “the evangelical minority”. But that’s neither here nor there. I expect that SSM will be commonplace in most states 100 years from now, too, but I doubt it’ll come about by action of the SCOTUS. I think there will still be some states that forbid it, and the court will not overrule that.
Loving, and Zablocki, stand for the proposition that marriage is a fundamental right. Your argument, seems to me, echoes that of some of the judicial opinions about DOMA: Yes marriage is a fundamental right, but only if you aren’t homosexual.
From Loving (quoting Skinner): The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival."
From Zablocki: “Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required.”
"More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court observed:
“We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
I’ve been using their words, not mine. My reading of those cases clearly indicate that marriage is a fundamental right, but perhaps not a Fundamental right that requires strict scrutiny analysis. But it does require a “critical examination of the state interests advanced in support of the classification.” Call it intermediate scrutiny, or whatever precise words you want to pin on it, it’s not rational basis. Unless, of course, it involves homsexuals. 'Cause they don’t really count.
Someone, I can’t think of who , said rational basis is make up any ole’ excuse test. And the way Bricker applies it, that’s just what it is. I don’t see what there is to rebut, other than to reiterate that there is no rational basis for discriminating against homosexuals in marriage.
Perhaps I am the optimist after all. I like to think they’ll be an end to unfounded bigotry in my lifetime. I like to think that America will wake up and realize that homosexuals are just like you and I, are able to engage in committed relationships, raise children, and be a family just like you and I. I like to think that the people will realize that this bigotry against homosexuals is insane. But I won’t hold my breath. On the upside, with Romer and Lawrence in our camp, I’m hoping the courts will apply the constitution as it was meant to be, fairly to all.
It’s more complicated that that. The fight against anti-sodomy laws is simply about wanting to be left alone. The fight for SSM is about NOT wanting to be left alone, unless you consider the desire to get Social Security survivor benefits, for example, as wanting to be left alone.
Note: I’m not arguing against SSM, I’m just pointing out that your argument is incorrect.
NO, I’m arguing that marriage isn’t a fundamental right at all. It isn’t any kind of right.
OK. Got it.
I have no problem with SSM. I think gays should be alowed to marry. But then, I think prostiution should be legal, and I think drugs should be legal and I think people should be allowed to work for less than minimum wage if they so choose.
I’m not arguing about my own beliefs here, but how I read the legal situation we currently live under. It wasn’t but a few decades ago that homosexuality was thought to be a psychological disorder. That was the mainstream scientific view. We have discarded that view, but we haven’t really developed a replacement theory yet. There is no scientific consensus that homosexuality is (entirely) genetic. We simply don’t know what the cause is. To me, it doesn’t matter. But to the law we have now, it does.
You’ve said that you think issues of sexual orientation should get a higher level of scrutiny. I can accept that, but I’m not sure the SCOTUS can.
I share that vision. I lean towards a libertarian view, and am not in any way a social conservative. However, I also lean toward a strong federalist position. Thus, I happily and without reservation voted against prop 22* back in 2000, but I can still say that I don’t read the US constituion as guaranteeing the right for gays to marry. In fact, I think the consitution leaves it up to the states. I hope I haven’t left you with the idea that I’m anti-SSM. What I’m anti is the federal government imposing SSM on the states.
*CA ballot initative to restrict marriage to one man and one woman
Someone like Scalia, who calls himself a textualist, is also an originalist. That means he seeks to determine the original meaning of the lawmakers (those who wrote the laws and those how voted on them) by primarily focusing on the text of the laws. He doesn’t try to read people’s minds, which is why he focusses on the text. But words have meanings, and an originalist would consider the relavent meaning to be what the word commonly meant at the time the law was made. Sometimes that’s easy to determine, and sometimes it’s hard. IIRC, you saw the wisdom of this approach back in the Scalia/originalst thread a few weeks ago.
How would someone like Scalia approach the word “marriage”? By looking at how that word was typically used (by itself), I don’t believe he would see that it implies that the participants are of the same race. I don’t think it was ever the norm to use that term, by itself, to denote a racially exlusive institution. In fact, the point of anti-miscegination laws was to add a racial component to the intstitution of marriage because it wasn’t there to begin with.
If one wishes to ban interracial marriage, one cannot simply rely on the word “marriage” to do so. One must explicitly formulate the law to exclude it, and then one enters an entirely different territory-- when is it OK to discriminate by race?
SSM is not in the same ballpark. Until very recently, homosexuality was considered a psychological disorder-- an abnormal condition that needed to be corrected. While there’s plenty of evidence that marriage has always been thought of as meaning opposite sex partners, is there any evidence at all that the term was ever used in our legal tradition to cover same sex uinions as well? I’m not aware of any, but if you have some, I’d be happy to consider it.
Society may evlove to the point where “marraige” does include same sex partners. We’re moving in that direction now. Hence the rush to codify marriage = man + women into law. But the question to ask is, who determines when we’ve reached that point? Do the people, through the leglislative branch, make that determination explicitly, or do handful of judges decide? If the latter, how do they go about making that determination?
One possible rationale: married couples are allowed certain priviledges such as next-of-kin rights, tax rate benefits, insurance coverages, etc. To deny access to these benefits to homosexuals may be unconstitutional under the XIVth Amendment.
I don’t know if it would hold up, but it seems to me that if you start giving special rights/benefits to married couples, then you need to be more careful who you deny marriage rights to.
It’s not offensive to the EP clause. It may well be offensive to the DP clause – although no court has held it to be so, it would be consistent with the evolution of SDP.
, said rational basis is make up any ole’ excuse test. And the way Bricker applies it, that’s just what it is. I don’t see what there is to rebut, other than to reiterate that there is no rational basis for discriminating against homosexuals in marriage.