Is there a constitutional right to same sex marriage?

Great Debates
61

It’s more than just an inkblot. The words of the Amendment are pretty clear, there exist rights outside of those enumerated, that should not be denied or disparaged simply because they weren’t listed. If you have another reading of the Amendment, I’d love to hear it.

Maybe while the Supreme Court visits the 2nd Amendment for only the second time, they could make a pit stop and actually acknowledge the real meaning of the Ninth Amendment.

Thanks for the link, but I’ve read it all before.

My point is relatively easy to follow:

The Ninth Amendment is clear: the fact that there were rights not enumerated should not be used to deny or disparage those rights. By saying that only the enumerated rights are entitled to constitutional protection, you’re doing the exact opposite of what the Ninth Amendment says. I can think of no better way to disparage an unenumerated right than by not allowing it constitutional protection.

The fact is, the judiciary has been following the intent of the Ninth Amendment, protecting rights that aren’t enumerated, without referring to it. Which, while not exactly the most honest, is fine by me. The judiciary was created, in part, to protect the rights of the people of the US, and if they use the 14th, 8th, or penumbras to do so, I guess I’m fine with it.

The problem comes with the people who seem to think that the judiciary has no role in protecting rights, or that the judiciary can only protect the rights specifically enumerated. Those people MUST ignore the 9th Amendment to take that position.

And, again, unless you think the judiciary has no role whatsoever in protecting rights, your position requires you to ignore the 9th Amendment. If you accept (as most people have), that the judiciary can protect rights, the fact that those rights aren’t enumerated should not be used to disparage them.

62

Just so I understand, you believe that, unless a right is specifically spelled out in the Constitution, the government is unrestrained in violating it? Could I ask why you think that? There is nothing in the Constitution, and, in fact, the Ninth Amendment says the opposite.

And do you truly believe that the Constitution would not forbid the government from instituting a one child law (ala China), requiring you to use contraception, punish you for having oral sex, or require you to take Zanax? I think not just the founders, but also a vast majority of ratifiers, would find that inconceivable.

63

This is a great debate, but I actually look at this a little differently. Basically, getting married grants me and my wife certain legal rights. We are presumed to be each other’s heirs if we don’t have a will, she gets to make decisions for me if I’m in a coma, etc. I would find that a law that prevents anyone who is capable of consenting to marriage from marrying who they want is in effect denying them their rights and is thus a violation of the equal protection clause.

64

It was rendered a “fundamental right” by a SCOTUS decision; I mentioned I considered this opinion wrong. So, as I said, ignoring such precedents, I see nothing in the constitution that guards a right to marry. Moot at this point–the “fundamental right” is now in play, detected by SCOTUS in the constitution via their extra-sensory methods.

65

I provided you references (in that thread) that show that amendment was never intended as more than a rule of construction, never intended as a source of a substantive right. It has been referenced, it would appear, in two decisions, redundantly. Sorry, it’s not much more than an inkblot.

No, I’m saying the Federal government (in the form of SCOTUS) for the most part has no cause to interfere unless a state law violates a constitutional principle supported by the text of the constitution. I’m not being flip here–would you consider the right of a pedophile to assault children an unenumerated right? Why not? Simply because the constitution ignores it? It’s meaningless text, in the sense that it protects, well, whatever the person invoking it wants it to.

Why in the world would you assume this? If there was a ninth amendment protection they saw, they would certainly invoke it. Hell, if SCOTUS felt one in the Force, they’d invoke it, actual wording be damned.

I believe the judiciary has a role in interfering with the execution of state laws ONLY to the extent that the text of the U.S. Constitution specifically describes a basis for it.

66

The unenumerated rights are quite an amorphous, undefined lot, aren’t they? Which right is the greater, the right to marry outside your race or the right to expect that the races will be kept pure (yes, that was once considered a reasonable expectation)? Which right is the more important, the right to bodily autonomy or the right for an unborn human to live?

I ask not to trigger debates on these topics. We all have opinions on which rights are greater or lesser. The question is, which ones are protected by the U.S. Constitution? Which ones demand protection by the ninth amendment? How do you decide?

I would suggest that to the extent the constitution is silent on something, it’s up to the states to decide, whether I like the state laws or not (I often don’t).

I would answer by saying if SCOTUS can decide against such laws, it should be because there is specific text that gives them a basis for it. If not, then I accept I have to live with laws I don’t necessarily agree with.

67

As, again I must repeat myself, but even if you don’t consider it a basis for rights, it, at the very least, acknowledges that there exists rights not enumerated and that those rights should not be denied or dispareaged simply because they aren’t enumerated. It seems I’m just talking past you.

Putting aside the federalism issue (which is unnecessary for these purposes), the 9th is, oddly enough, in the text of the Constitution.

If you’re not being flip, why ask such a silly question? Of course there’s no right to violate someone else’s rights.

SCOTUS has found rights in the Constitution, such as decisions of medical care, procreation, privacy, etc. They did what the 9th Amendment requires, protecting non-enumerated rights.

And, for the 8th time, to do that, you have to ignore the clear wording of the Constitution. Requiring a right to be enumerated before offering it protection is directly in conflict with the 9th.

68

Yes. That doesn’t mean we simply ignore the 9th.

A right to expect something? I suppose, by the broadest definition, that could be a “right”, but a damn weak one. If you’re asking which is greater, the right to marry or the power of the State to keep races pure, I think the answer is obvious.

If you’ve read the thread, you’d know my answer.

How does anyone? By judging, relying on precedent, presumption of liberty. The fact that it requires judging doesn’t mean it shouldn’t occur. The judiciary has been doing the same thing for centuries.

And, now for the 9th time, the Constitution isn’t silent about it. It’s in the 9th Amendment.

Are you going to answer the questions? Do you think privacy, contraception use, making medical decisions, procreation, and sexual intimacy are rights protected by the Constitution? I, for one, would be absolutely stunned if the founders, ratifiers, or a majority of Americans thought they weren’t rights protected.

69

No, it seems you’re ignoring the points inconvenient to what you’d prefer. You apparently think repetition and hand-waving amounts to an argument, I guess. I’ve already provided cites to you that demonstrate the ninth was not intended to carry the weight you so much prefer that it did, and that it has formed the primary basis for virtually no SCOTUS decisions. Sorry that’s inconvenient.

Really, read the cites in the thread I provided.

Almost any right has the potential to violate someone else’s “right,” if exercised. Again, who decides which right the ninth amendment protects (playing along with you here; the ninth–AGAIN–has formed the basis for no substantive right).

SCOTUS has found all sorts of rights that have no basis in the text of the constitution. That doesn’t make it right. And, again, endless repetition that they are basing this on the ninth amendment, in contradiction of the actual opinions rendered, won’t make your argument stronger.

70

Baloney. First, the posts in the other thread by no means ends the discussion. Second, and I’ve said it over and over, but, apparently you don’t seem to grasp it, the clear language of the 9th Amendment is against you.

I did, and already told you I did. Is this a battle of attrition to you?

Who decides? The same branches that decide the existance and weight of all rights. The legislature and the judiciary. Again, this is the fourth time I’ve explained this.

Good God, you don’t even bother to read my posts, do you? I never said they “based it on the ninth amendment”. Now I know why I have to repeat things multiple times for you.

71

Sorry, can’t keep running around the same track again and again with you, when you refuse to acknowledge simple points. I have asserted nothing that places “the clear language of the 9th Amendment against me.” I have stated that it was intended as a rule of construction, and never intended as a source of a substantive right, and provided a cite for this. Moreover, it has served no real purpose in any but two SCOTUS decisions, and in those two it was redundant. This apparently amounts to ignoring the blinding truth that is so obvious in the text of the ninth amendment, a truth so obvious that SCOTUS missed it in deciding Baker v. Nelson, in which they decided (as cited by the CA SC):

You keep believing what you’d like. See you in the funny papers.

72

Sure you do. You believe the enumeration of rights in the Bill of Rights means other rights are disparaged (not protected by the Constitution). You can’t get much more contrary to the wording of the 9th Amendment.

If you actually want something to read, here’s some quotes from people who were afraid of your view of the Bill of Rights:

Charles Pickering:

“[W]e had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated.”

James Wilson was also concerned about your view of the Bill of Rights:

“In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.”

And so did James Iredell:

“*t would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”

So how would the Constitution deal with this? What could assauge the fears of these fine men? What would they say if you appeared and said: “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.” Because that sounds a lot like what you’ve been saying, that rights not enumerated in the Constitution are insecure. That thought is certainly “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.”

Luckily, however, there was a response: “**ut, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution (what became the 9th Amendment).” The solution to all those concerns that people would take your view of the Bill of Rights was… the Ninth Amendment.

You can continue to repeat that the 9th Amendment is not a font for rights. But, at the very least, acknowledge the fact that the clear wording of the Amendment, as well as the reason for its inclusion in the Bill of Rights, was to stop people from arguing that any rights listed are thus given to the government to violate as they see fit.

73

You didn’t address this to me, but I’ll take a stab at responding.

To do so, we must first define our terms. When you speak of “government”, it’s important to remember that the US actually has 51 constitutional governments, one for the Federal government and one for each of the 50 states. Since each state government is governed by its own constitution, there remains the distinct possibility that any one of your hypotheticals is unconstitutional for reasons having nothing to do with the US Constitution (for example, my own State, Florida, has an express right to privacy, actually enumerated and written down. It also has a section on the housing of pregnant pigs, so don’t get all teary eyed about its eloquence). Since this is a debate about the US Constitution, though, I’ll assume we are talking about the Federal government.

Now, anytime the Federal government passes a law, it must do so by virtue of the express authority granted to it under the Constitution. IOW, the congress must be able to point to some provision granting it authority to act (just as specific Fundamental Rights aren’t implied in the constitution, IMO, neither are powers). Even if the Congress can point to a specific provision of the Constitution, it is still limited by the “necessary and proper” clause in the document to justify why the law adequately falls within the purview of that power.

Where, then, does the Federal government derive the power to legislate on contraception or blowjobs? Note, please, that laws regarding same-sex marriage or sodomy aren’t federal laws. The GOP often pushes a Federal Amendment defining marriage between a man and a woman, but it doesn’t propose it as a bill in Congress. Why not? Because there is no Federal power to legislate such matters (and, as I’ve noted, there already may be state protections against such laws; in Florida, a no blowjob law would be clearly unconstitutional).

The broadest grant of power in the constitution is the “general welfare” clause in Article 1, Section 8, and I suppose it could be used to justify putting additives in the water (don’t we already do that with fluoride?) or restricting the number of children a family could have. Ultimately, though, the check on most such actions is the democratic process. While it’s true that the Bill of Rights do protect a minority of people from the tyranny of the majority, in a democracy, the majority usually does win.

I realize that, in this day and age, it’s natural to be cynical about the corruption in politics, and to believe that nobody can be trusted. But, in the absence of a better alternative, our democratic government has to trust that bad laws won’t be proposed by legislators who need to remain in the good graces of their constituents. I can certainly see a population explosion rendering serious consideration of a “one child” policy. I can’t see a politician successfully convincing god-fearing, family values, salt of the earth voters to accept such a policy, “just like them commie Chinese do it.” Similarly, I believe there would be a huge uproar if the government attempted to pass a law adding an addictive drug like Xanax to our water supply, especially if the intent was to mollify the population into complacency.

74

I appreciate your answering the question honestly. I find it absolutely against the language of the 9th Amendment, the intent of the founders, as well as damn dangerous to our country, to believe that the government is unrestrained in violating our rights unless those rights are specifically enumerated. Also, as a practical matter, I think you have waaaaaayyy too much faith in people. Although we haven’t yet had the one child, the government has, in the past, outlawed certain sexual acts and made contraception illegal.

Madison, when discussing the 9th Amendment, certainly thought like you did, in part at least. He thought the limitations placed on the federal government would serve as a protection against the governments infringement of rights. In my estimation, he seriously “misunderestimated” the powers the government would eventually have. But, in addition to that reason, he did recognize that, by enumerating certain rights, people would (wrongly) think that other rights didn’t exist and weren’t protected. Hence, the 9th Amendment.

75

I think this is an outstandingly good and clear post, FWIW.

I get the clear impression that the objection being raised by Stratocater (and perhaps Atomicktom?) is that there is no clarity or coherence to what it is that the Ninth Amendment guarantees. Is that correct?

I direct your attention, then, to the “cases or controversies” clause of the Constitution. Jurisprudence is spelled out, not in grandiloquent dicta handed down by the alleged “activist judges,” but in response to issues raised in actual cases where a criminal trial or a lawsuit implicates someone’s propounded right under the Constitution. In 1931 the only rights citizens of the United States were guaranteed as against state action by the Bill of Rights were freedom of speech and of the press. Why? Because no one had yet raised valid questions laying claim on other enumerated, guaranteed rights as against state action. Does that mean that nobody had the right to a jury trial, to free exercise of their religion, to be free from cruel and unusual punishment if a state decided to deprive them of that right? No, it merely means that nobody had raised such a claim in a case where the SCOTUS say fit to take the case and guarantee that right.

Likewise, the inchoate mess of actual, possible, and fictitious rights that might be alleged to be guaranteed by the Ninth Amendment is discovered by their being raised in an actual case or controversy. Can a state legally deprive people of the right to marry? No, because it’s a fundamental right. Can they deprive people of the right to travel, or to relocate? Nope. Does a state have the power to prohibit the practice of contraception? Nuh-uh. These are instances where examination of the facts revealed that a right which the FF neglected to enumerate was being infringed upon by a state.

Does a state have the power to prohibit Heather McNubile, 13, from contracting a marriage with Chester Moe Lester, 40? You bet; it’s implicit in the general welfare provision’s protection of the young. To prevent Richard Loving from marrying Miss Jeter, they being of different race? Nope; that’s a suspect classification. Now, what about Del and Phyllis? or Larry and Jack? What overarching state need supersedes their right to equal protection under the law? It’s not “a right to gay marriage” – it’s a right to contract marriage with the partner of your choice, and the state’s power is constrained to what’s intimately related to essential state purposes. Protecting Heather from Chester is a vital state purpose; protecting the body public from an interracial marriage or a gay marriage is not.

76

What, in your view, would be a good method to determine if a particular right is protected by the Ninth Amendment?

77

I am not Hamlet, nor was meant to be. But let me offer you my own perspective. It consists in two parts: the “reasonable man” concept and the classic ad absurdam text from logic.

If it is alleged that N is a right, then analyze this by contemplating whether either the founding fathers or a consensus of present-day reasonable men would have contemplated a law prohibiting N completely. If it becomes clear to think that the prohibition of N is something people then or now would not have stood for, N is a right. May it be regulated? Yes, under the standards of Footnote Four and the scrutiny levels tests. And define N carefully: e.g., what is being claimed is not the right to say “Fuck the Army” but the right to protest what the Army is doing, not the right to gay marriage, but the right to freely contract marriage to the willing unencumbered adult partner of one’s choice. Not the right to collect some form of benefits a Wisconsin resident, but the right to establish residence in Wisconsin.

78

Maybe a good way of finding out whether a consensus is in favor of N is to put it to a popular vote. That would be respectful of the Tenth as well as the Ninth Amendment.

And by all means let’s see the evidence that the founding fathers were in favor of N.

And, just to clarify, I believe the default of the Constitution is not that the feds may not prohibit unless the Constitution says they may. The default is that the feds may not act at all unless the text of the Constitution says they may. And this applies to all branches of government.

IOW, if the people have a referendum, the supreme court may not overturn or amend it unless they can point to a specific clause in the constitution that addresses the specific subject of the referendum.

Regards,
Shodan

79

Me? I’d go with the “Whatever Hamlet says” test.

Seriously though, I’m a big fan of the writings of Randy Barnett, including the presumption of liberty. You could, if you like, also use the 200 years of caselaw as a guide, that’s one reason it’s there. The “concept of ordered liberty” or “matters so fundamentally affecting a person” can be a good start also.

80

And, once again, that flies in the face of the 9th Amendment. Just thought I’d point that out, again.