I do not have the time right now to give responses to every tiny sentence raised by Huerta and SlyFrog. I will simply reitterate what I’ve said before. Limits placed on marriage can, have, and will continue to be found constitutional. I never said any different and neither did Loving. However, stay with me here, the State needs to show a (once again depending on the level of scrutiny) rationale basis for those limitations. There is no onus on me or anyone else to disprove the repeated attempts to compare same sex marriage and polygamy. What I have tried to say is that there is no rational basis for not allowing two members of the same gender to marry. If you have compelling reasons, I’m all for it. I’ve given you the three the state argued in Massachusettes, if you have more, let’s hear them. When I have more time, we can spend an inordinate amount of time going over each and every one for same sex marriage, marriage to cousins, marriage to minors, and marriage to members of a different race. Convince me that there is a rational basis for states to deny the benefits (and curses) of being married simply because the couple are of the same gender. And, as I said before, simple “it’s tradition” is a consideration, but it is not the end-all-be-all.
Dude, I already said I don’t object to polygamy. I think perhaps some rational basis could conceivably be made to ban polygamy, but I’m not certain of it and I’m not agitating to keep it illegal.
And if there is any rational basis to ban gay marriage, I haven’t heard it and you haven’t articulated any other than you don’t think it’s “normal” (which is an ignorant perception all by itself).
No favored class needs to be found, only an irrational basis for deprivation of rights.
I’ll take that as a surrender. You have no comback to either Equal Protection or Substantive Due Process or to Loving…and to go way back to the very core of this thread, you can’t articulate a rational justification for denying civil unions to same-sex couples.
I’ll re-read your previous post – but I suspect you’ve moved the goalposts a bit. The previous post strongly implied that if miscegenation bans fell in Loving, “gay marriage” bans logically and necessarily fell. The part you left out was . . . (because “preventing ‘gay marriage’” can never be a rational basis). I read your previous post as attempting objective constitutional syllogism. And I asked why the syllogism didn’t extend necessarily to a another far-from-remote possible form of “marriage,” or why invocation of tradition (which you dismissed as to miscegenation) was okay as support for some bans, unacceptable as support for others. Your answer appears to be that only “good” tradition will be given weight. Well . . . that’s clear then.
Now you’re offering to debate whether there is a rational basis for one ban, not for the other. But that’s just what it is – debate. I would be interested in your views for why polygamy bans clearly have a rational basis, same sex bans don’t. But then we’re just debating public policy as a predicate for what Loving would hypothetically require if our respective public policy prevailed in the debate. It’s bootstrapping to pretend otherwise.
After the jackass posts (not yours) I’ve (unwisely) wasted time responding to that start from the assumption that you can prove a policy’s unconstitutionality by starting from the assumption that it is “definitely unconstitutional,” you may be able to understand why I’m deeply suspicious of any argument couched as presenting a logical and unavoidable constitutional reason for a particular conclusion, when the logic and unavoidability turn out only to necessarily follow if we suppose universal acceptance of subjective policy propositions that are not, in fact, universally accepted.
No one cares what you object to. This is your fundamental error. Constitutionality and what you do or don’t object to have absolutely no relationship to each other. You clearly believe that the class of laws to which you object are constitutional, and that any laws to which you don’t object are obviously constitutional. If you were Blackstone or Jesus Christ and the Twelve Apostles, this constant belief that your opinions have anything to do with constitutionality would be in somewhat poor taste. As it is, it goes beyond megalomania to a really sad form of ignorance: not knowing what it would be like to know.
Everything that has been argued here (including in the fifteen minutes since Hamlet mentioned Loving and ‘rational basis’ and gave you your magic words of the day) establishes that you are wrong both in the way you structure your ‘arguments’ (for instance, believing that the burden is on the state to disprove the existence of a right never before proven or extended) and in the conclusions you draw from them ("'gay marriage is guaranteed by the Constitution because it’s unconstitutional to deny any marriage!") But Bricker explained all of this, and more, to you three days ago. Notwithstanding your tacit admission that you believe repeating your unexamined convictions a million times makes them a million times stronger, you’ve shown us no more reason to “argue law” with you than to argue any of the dozens of other subjects whose vocabulary, logic, and history you’re utterly unfamiliar with.
un is what I meant.
A person is born homo-sexual, like a person is born black.
Interracial marriages were once unconstitutional. The constitution changed.
As it ought to change once more.
Maybe I could have been more precise, but, as the court in Goodbridge pointed out, Loving clearly indicates the “well it’s tradition” argument is not a controlling argument
I’m not sure how much more clear I can make my position for you. I’ve stated it three times now. Tradition is one thing to consider but it is not controlling. Of course whether that tradition is “good” or “bad” is determined by other factors, but, they too, are not absolutely controlling. I can’t make it much more clear than that.
What is your and slyfrogs problem with “policy” arguments? It’s like a magic word for you two. Do you think: If I say someone’s arguments are “policy” they have no power? I repeatedly pointed out that State legislation banning gay marriage must pass the prevailing Constitutional test…which I assume is rational basis. It’s not bootstrapping, it’s applying a constitutional test to a set of facts. Repeating over and over that my arguments are “just policy” is getting quite annoying.
Yeah. DTC can be a huge pain. You have my sympathies.
I have yet, on this board or in real life, find a case of such magnitude where there was a “logical and unavoidable constitutional reason for a particular conclusion.” That’s why courts differ, that’s why we have appellate courts, the supreme court, and, more important than all of those, Great Debates at the SDMB. My argument was, and remains, the same as the Goodbridge decision.
It’s not a problem with you in particular. I think policy arguments can have a lot of power. I think one can make a strong policy argument that there is no rational reason to exclude gay marriage. But two things: 1. I do think you are shortcutting things a bit by simply exclaiming that there is no rational reason to prohibit gay marriage (I’m not saying that you and I have to agree with the reasons given, but I won’t act as though the arguments are so specious as to simply be laughable); and most importantly for this discussion, 2. admitting that it is policy hamstrings some people who simply want to magically end the whole discussion by waiving the magical “it’s unconstitutional” words about without explaining why (and the why is, in the end, a question of policy, because when we are deciding what is rational, we by default must make that decision within the context of our society and culture).
I think these two aspects are not independent. Because people who think the laws *should * be a certain way always seem to interpret the Constitution as *currently * saying what they want.
In any case, you’re right that there is some confusion.
My position (as a non-lawyer layman) is the following: if I think that a policy violates the “spirit” of the Constitution, I would say that that policy violates the Constitution even if, technically, following the letter of the law the policy is not unconstitutional.
For example, if somehow, a law banning people whose height difference is more than 4 inches is found to be technically not unconstitutional (because people with height differences aren’t in a “protected class”), then I would still think it violates the spirit of the constitution.
This may not mean much legally, but I guess it means that people should pass laws to make this policy illegal.
It also means, to me, that sterile, technical analysis of what is constitutional is somewhat lacking since it allows obvious stuff like that to be considered not unconstitutional.
So, if I find a class that is not protected (say blondes), then, technically speaking, laws that discriminate against whom this class can marry or cannot marry are constitutional?
To go back to the earlier example:
Let “X & Y” be " ‘marriage between people whose height differs by less than 4 inches’ and ‘marriage between people whose height differs by more than 4 inches’ “, and let “A & B” be " ‘people who date people whose height difference less than 4 inches’ and ‘people who date people whose height difference is more than 4 inches’”.
Assume both A & B are allowed to enter into contracts of type X, but not of type Y.
Is that technically constitutional?
I don’t see any protected class being discriminated against, and there is no explicit right for people with large height differences to marry, so I guess a law allowing both A & B to enter into contracts of type X, but not of type Y, should be constitutional.
This may be a silly example, but if the constitution isn’t constructed such that laws about obvious cases such as the above is found uncostitutional, then I guess we should re-structure how the constitution is interpreted.
That is, in an ideal world, the above silly law would be automatically considered unconstitutional, without having to add an amendment for it.
This is quite interesting. So, do you think that is such a law passed, we would need a constitutional amendment explicitly guaranteeing the right to interractial marriage?
Don’t you think that the constitution as is guarantees the right to interractial marriage? Do we need an explicit ammendment to guarantee it?
If we do need an explicit ammendment, then, as I said above, something is wrong with the whole legalistic framework of how lawyers and judges agree that something is constitutional.
Oh, but I can readily imagine clearly constitutional or unconstitutional laws.
You’re 34 and the government won’t let you be President? That’s clearly a constitutional position on their part.
You’re a New Jersey commuter and New York City wants to tax your N.Y.C. income while not taxing its own suburban commuters (real life case)? Clearly unconstitutional (equal protection of citizens of the several states).
The government wants to condemn your property under eminent domain but isn’t offering you any money? Clearly unconstitutional (takings clause).
In each of these cases, there’s nothing to debate: The explicit text of the Constitution and the unanimous case law truly do make the decisions slam dunks.
The problem comes when someone glibly announces that “gay marriage” bans are “clearly unconstitutional,” implying that the issue is similarly a slam dunk. “Nothing to see here folks, move along, this law just isn’t any different from that in Loving, so it’s gotta be unconstitutional. Hey, this isn’t my opinion or anything, it’s just a logically-necessary conclusion of reading the Constitution and case-law.” You didn’t quite say that, but your OP, and others I’ve seen on this topic did and do, I submit, fall prey to this temptation: Declaring victory in the second quarter of the game and invoking the Most High Supreme Court as authority for why no other result is even logically contemplate-able.
I don’t speak for SlyFrog, but I suspect his concern with “policy” arguments is similar to mine. I don’t (and no one adopting a constructionist position ever could) have any problem at all with policy preferences informing law. Saying “We can’t enact that law, that just reflects your personal policy preference!” is as stupid as saying (as some do) “We can’t enact that law, that’s consistent with your religious beliefs so it violates the First Amendment!” The notion that there is a basis for legal policies other than the aggregate sum of the populace’s personal policy preferences is nonsensical.
No, when we characterize your arguments as going to policy preferences, we’re objecting because (in our view) the Legislature is the primary vehicle through which policy is supposed to be enacted and memorialized in a democracy. If we’re sensitive about “policy” arguments being invoked in the same breath as the Supreme Court, it’s because (in our view) there’s been all too many instances of courts usurping the role of the Legislature to decide far-from-settled issues of public policy in favor of one faction or another. That this is so can be clearly inferred from the kneejerk tendency of persons, dissatisfied with their inability to gain a popular consensus for their opinions, to immediately think that they can short-circuit the democratic process by persuading the Supreme Court to enshrine their particular policy preference as not just good, not just the subject of a democratically-earned majority, but untouchable and undebatable. Well, I prefer the democratic way of arriving at such “consensus,” especially when it will be imposed on everyone.
From this you’ll gather that if Utah legalized (or de-legalized) polygamy, or “gay marriage,” I might think they were a bunch of rubes, I might think they were tremendous fellows, I might move there and lobby my legislators to change the law, I might resolve never to set foot in the State – but what I wouldn’t start doing is thinking that any of the legislation implicated the Constitution, or tossing around the Constitution as a reason for why my preferences must clearly prevail.
This explains a great deal.
You should not look to the federal Constitution as the final arbiter of All Things Good and Right, which I suspect your “siprit of the Constitution,” is leading you to do. The Constitution establishes the framework of our government and the powers permitted to Congress. It does not purport to be the final word on Rightness.
I imagine reading of actual legal cases is anathema to you, but I strongly recommend you read Atwater v. Lago Vista, 532 U. S. 318 (2001).
In this case, a Texas woman was observed driving without a seatbelt, an offense for which Texas law provides a penalty of $50. She was pulled over, verbally berated, removed from her car, handcuffed and placed in the back seat of a police car, and taken to jail and booked.
She sued, claiming her arrest and jailing for such a trivial matter was unconstitutional. (Perhaps, if she had thought of it, she might have argued that her arrest violated the spirit of the Constitution).
I won’t spoil the ending for you. Read the case.
Actually, I’m not arguing for the denial of gay marriage – I’ve explicitly stated I find that outcome perfectly acceptable, so long as it is accomplished via legislative majority.
Having said that, to the extent I do have reservations about full-blown gay marriage, those reservations stem from a Burkean respect for society’s institutions. I am keenly aware of the law of unintended consquences. Pillars of social organization – like marriage – ought not be trifled with, not just because of the negative outcomes we can foresee, but also because of negative outcomes we can’t foresee. And if we do go forward with such radical alterations of those institutions, they should be done deliberately and with a substantial amount of societal consensus.
The Goodridge court simply states that antimiscegenation laws had been around in the US for “[f]or decades, indeed centuries.” In terms of age, that isn’t very much at all, not when compared to marriage writ large. Indeed, one could make a fair argument that antimiscegenation laws were themselves a significant change to a longstanding social institution.
Brown was premised on equal protection, not substantive due process. Loving was premised on both equal protection and on substantive due process, and I agree with its result on the former but not the latter.
The problem, of course, is who defined what is “unconscionable,” what is properly called “tyranny,” and how all this fits in to a society premised on the notion that goverment derives its just powers from the consent of the governed. Rather than re-type all this stuff, I suggest you search for a thread titled “Right? What’s a Right” if you want a fuller explanation of my position on SDP.
I am not licensed in Massachusetts and am not familiar enough with their state constitutional jurisprudence to determine the contours of the rational basis test as applied therein. For all I know, those arguments may well fail the Massachusetts version of the rational basis test. However, at the federal level, the rational basis test is one that is virtually impossible to fail. I think any of those proffered rationales would survive that level of scrutiny.
Having said that, again, my reservations about gay marriage policywise stem less from actual anticipated deletorious effects and more from a cautionary concern for the unanticipated consequences of monkeying around with institutions having deep societal roots. And again, my reservations are just that, reservations; as I’ve noted, I’m not opposed to gay marriage being enshrined into law by legislative means. I just think we might be running off a little half-cocked (no pun intended), and that we might consider taking a slower, steadier course.
The “argument against the use of SDP” is the entire thrust of why I oppose these types of changes being imposed by the judiciary. I guess it’s easy to win a debate if you simply “put aside” your opponent’s most serious objections without even considering their merits.
And once you’ve “put aside” the notion of the judiciary mandating recognition of gay marriage by fiat, you turn to policy arguments properly considered by legislative bodies. And there, I suppose, a “good reason” is in the eye of the beholder. A Jacobin revolutionary will naturally find notions of preserving key social institutions silly. That doesn’t mean we should all be Jacobins.
Huerta88, I’d be interested to see what your opinion on this is.
From your cite:
My mind boggles at the thought that we have to make a new constitutional law forbidding arrest “when conviction could not ultimately carry any jail time and the government can show no compelling need for immediate detention”.
It seems the constitution has severe deficiencies if it does not logically result in the above type of arrest being illegal.
On a more general note, I think it is misleading when people say “we prefer a strict interpretation of the constitution”. When the constitution says stuff like:
it is always a judgement call whether a seizure is “unreasonable” or not, so how can anyone make a strict constitutional interpretation?
I’m not a lawyer, but I think many laws have language that depends on people finding that something is “reasonable”, that there is “sufficient cause”, that “rises to the level of …” and other such phrases that obviously require a judgement call on the part of whoever decides these things.
So, I would think that the whole concept of “strictly interpreting the constitution” is logically impossible.
Three answers:
(1) I am not certain that the Constitution guarantees a right to marriage, period (Loving notwithstanding). I’ve said in other threads that I could probably live without civil endorsement of my marriage (which is, after all, a personal and religious commitment), so long as the govt. didn’t try to meddle with the other aspects of the marriage. I mean, can I honestly claim that the “incidents of marriage” are constitutionally guaranteed? Sure, I’ll take the tax break or the child care credit if they extend it. But I can’t realistically argue that the Constitution requires that these boons be extended to me but denied to a single person, or a guy shacking up without benefit of clergy, or two maiden spinsters sharing a house so as to save on rent. No, I’m not arguing that any kind of recognition or govt. expenditure ought to be extended to those groups; the better course might be to get the government out of the business of giving some special imprimatur to voluntary personal relationships, period.
If the Constitution does not guarantee my right to marry, surely it does not guarantee the right to marriage of someone who would likely have been burned at the stake in 1789 for his sodomistic bent. Remember, the Constitution is a very old document, passed largely by people of whose overall opinions and lifestyles you wouldn’t likely approve. Looking to the Constitution as the source of new never-before-imagined progressive rights is thus a bit ironic, at best.
(2) If someone did pass a law banning interracial marriage, and you were unhappy with that, I would wager that a constitutional amendment would be readily available. Would it be necessary? Maybe not. Maybe. You have to understand that, because of the history of the U.S., the Constitution as it now stands is imbued with explicit guarantees to (and legislative history reflecting concerns for) racial minorities, in a way that it simply does not guarantee, or even contemplate, special rights for homosexuals. Blacks and other minorities thus have a far easier time proving that regulations which screw them are suspect. But blacks went through the extremely difficult process of persuading their fellow citizens of the merits of their claims to being similarly situated to whites. Homosexuals have not yet, in a constitutional context, managed the equivalent of democratically persuading a fairly racially divided country (in 1865) to grant them explicit, eternal rights. Blacks and their patrons did manage this, and for this reason, can legitimately claim to enjoy what amounts to a special exception, or a lowered burden of proof, when it comes to chalenging rules/laws that arguably dis-privilege them. In short, it is far easier to find explicit constitutional and legislative history support for construing a broad right to black “equality of options” than for creating, ex nihilo, even a narrow right to homosexual “equality of options.” Sorry, that’s how it works in a precedent-driven system.
- If someone somehow passed an anti-miscegenation law today, it would be swiftly followed by a “right to miscegenation” constitutional amendment. The point becomes sort of moot.
Burned at the stake, put in charge of training the nation’s army, whatever. Though execution was a fairly common result of late 18th-century American jurisprudence, I’m pretty sure it typically involved hanging or shooting, though. Burning a man to death was more of a lynching method, by that time.
Actually, I believe the 14th amendment guaranteeing equal treatment already covers this, so such a ban is unconstitutional on its face. Antimiscegenation laws persisted well into the 20th century, mind you, but so did systematic disenfranchisement (which some might argue is still going on, to some degree).
Constitutional protections have never magically asserted themselves. It would take a couple being interracially married in a state with a ban, facing the charges, and challenging them to the Supreme Court, if necessary. I doubt it would need to get that far. The first federal judge who got his hands on the case would likely void the law on the spot, and higher federal courts wouldn’t bother to hear the state’s appeal.
I’ve seen you make statements like this before, and I still don’t understand you. What “explicit guarantees” are you referring to? The 14th requires equal treatment, not special treatment, or is it “special” to have rights that cannot be cancelled by a majority vote? If so, than every individual has “special” protection because the constitution does not allow a state legislature to pass a, for example, “Let’s Get Huerta Law”, instantly criminalizing all behavior by people named Huerta.
Hmmm? What “special exception” are you talking about? Does this have something to do with Affirmative Action?
You keep using the word “explicit” when as far as I can tell, the words black and minority don’t appear anywhere in the constitution, and race only appears in the 15th, just to be explicitly disregarded when it comes to voting.
It would be moot the moment the law was passed. The 14th would guarantee it. Now, if the state passing the law started sending out police to break up interracial wedding ceremonies, and arrest people of different colors for getting married, the logical outcome would be involvement by federal law enforcement. It wouldn’t be necessary to ratify a “right to miscegenation” amendment (frankly, even calling it that lends more legitimacy to the quack concept of miscegenation than it deserves) because it is quite clear that the state is not treating its citizens in an equal manner.
If there is ever a constitutional challenge to SSM bans, it will almost certainly use the 14th as a basis, though I’ll admit it would take a gutsy Supreme Court to do so. Further, the subsequent backlash against “judicial activism” might be enough to push further amendments through, defining marriage as strictly heterosexual and putting restrictions on the courts. What’s needed now for SSM proponents is to get laws on the books in at least 13 states, so a restrictive constitutional amendment can’t be (easily) ratified. It’s delicate, now. Overreach and you could easily push the whole thing back twenty years.
Hmm, on further examination I found a site documenting American executions and burning was used circa 1789, though you had to be a slave to earn the privilege.
These punishements weren’t for sodomy, though. The last sodomy (well, sodomy/buggery/beastality) execution the site details is that of Jose Antonio Rosas, shot in California in 1801. He’s listed as a soldier, so presumably this was a military execution. The previous documented execution on similar charges was of Joseph Ross (no relation, I presume) in 1785. Of the fifteen executions on this charge listed, none of them were by burning, though two are listed as using “other” methods.
Go figure.
Fascinating website though I make no claim about its accuracy.
You are certainly free to feel the Constitution has “severe deficiencies.”
However, I hope it’s now clear to you that your view that the Constitution is the ultimate arbiter and source of redress for every unwise law is … wrong. The Constitution is not intended to guarantee the wisdom of government. Please stop trying to make it do that.
No.
No, no, no. A strict reading of the Constitution is very possible with words like “reasonable.” The “reasonable man” test in law is well-understood as an objective test.
A strict interpreter can decide between a reasonable and unreasonable search. But he does not look at that language and say, “Ah, because searches must be reasonable, that means there is a right to privacy!” No. There is a right to be free from unreasonable searches. To infer a right to privacy is an example of what a strict constructionist abhors. A strict constructionist is perfectly comfortable construing “reasonable.”