Yeah, and whatever could have precipitated those changes? The case you cite to involves the Vermont civil union kerfluffle. In the wake of that decision, a bevy of states decided to make clarifying changes to their marriage codes to make explicit what they had long thought clearly implicit.
Again, I think you have a hard case to make if you wish to show that legislators making those changes thought they were making any kind of substantive modification to the institution of marriage, as opposed to a simple legislative clarification making explicit what is already implicit via tradition.
It is hardly “presumptious” to recognize the simple fact that, until recently, the notion that marriage was a hetero-only institution was accepted as incontrovertible. Do you really believe that those legislators believed otherwise? What color is the sky in the world you live in?
Giving full effect to the will of legislative majorities is not activism. Indeed, it’s the very opposite of activism.
Incontrovertible is a very strong word to use. If it was indeed so, why would it have changed recently? It’s incontrovertible that the earth is not a flat disc supported by four elephants on the back of a giant turtle, floating through space. You won’t suddently see 35 states pass laws stating it to be round today. What’s not incontrovertible is exactly what the legislators intended with regards to marriage, other than what they actually codified. It’s quite possible they didn’t conceive of two men attempting to marry. If so, then there is nothing illegal about two men doing so until it’s codified. Until recently, it wasn’t. As far as I’m know, assumptions are not legally cognizable. Feel free to give me the lawyerly take on that. Heck, do it from a strict constructionist standpoint for fun.
Actually, I think Homebrew is trying to point out that legal definitions are usually made explicit, even when the words being defined are common and ordinary. I’m more or less on your side on this particular point - I think that the common law take on marriage would, if ever it had been spelled out, been explicitly heterosexual.
But there is a counterpoint here as well, and it’s not like DMC is away out in left field. If the legislators who rushed to explicitly define marriage following the court decision in Vermont (or Hawaii, or Alaska, or Massachusetts) truly believed the implicit definition of legal marriage as heterosexual in nature had the same legal force as the implicit common law tradition, they wouldn’t have bothered with their explicit definitions.
I’m not entirely sure what the significance of the point is, though. The bare fact that a group of people has historically been barred from participation in a social institution doesn’t constitute a reason to continue barring them. The grounds on which they’ve been barred in the past may, if they’re actually reasons, but the mere fact of tradition isn’t a reason of any sort whatsoever. That’s not a legal statement, that’s a statement based on my best understanding of what constitutes a reason. But none of that changes the fact that legal recognition of gay marriages would be overturning tradition. I believe all the Canadian decisions on this matter have been quite explicit in stating that they’re overturning the common law tradition.
Sure, whatever. Your only real response to my points has been to call me “vitrolic” and suggest I take things to the Pit. You are resorting to pounding the table, and even your table-pounding is misguided, as I’ve certainly heaped less venom on you than you have on Huerta.
What John Mace said.
Indeed, prior to 1967 many states allowed interracial marriage. Sammy Davis Jr. married May Britt in 1960; boxer Jack Johnson married white women three times, in 1911, 1912 and 1924, to cite two famous examples.
Indeed, the term “miscegenation” did not come into common use until shortly after the Civil War, and anti-miscegenation laws were largely the province of the Jim Crow South.
And yet, if the term “bicycle” was left undefined, you would be hard-pressed to argue to the court that it included motorcycles.
I have no reason to know the contrary? Are you serious? Are you seriously arguing for the possibility of legislators from several decades past having a more englightened view of gay marriage than today? Good heavens, what planet do you live on?
Well, yes. Even the Massachusetts Supreme Court (warning: PDF; see p. 6) had no problem ruling that the statutory definition of marriage in that state only meant man-women unions, even though the Massachusetts marriage statutes are silent on the issue:
(Emphasis added)
So spare me. Even the court that is arguably the most gay-marriage friendly in the country says the ambiguity argument is a stupid one.
Again, I don’t think you realize just how low the rational basis bar actually is.
I agree with this. But it isn’t always the case; there are plenty of statutes out there that don’t define every little word used therein. Could those statutes be better drafted? Sure. But that doesn’t mean you get to play “gotcha!” with latent ambiguities.
And the counterpoint to that counterpoint is that if the courts are mis-reading the statute in the view of the legislature, it is entirely acceptable for them to pass clarifying amendments. That doesn’t mean the original statute envisioned something different; it just means real-world events have required making things clearer. This happens all the time in less politically-charged situations (say, the implementation of a tax provision).
Well, sure, and as I’ve stated before, I think from a policy point of view the country ought to move toward gay marriage or something like it. But what we’ve been discussing, in part, are things that satisfy the rational basis test, and for purpose of that test, tradition is an entirely acceptable and sufficient way to sustain a piece of challenged legislation.
Sure, but it doesn’t seem terribly implausible that you might convince a court that the definition covers something like this, say, if it was a law restricting vehicular access to bicycle paths in the park.
I’m not going to dispute that this is in fact the case. But it is on the face of it a ridiculous statement, since it essentially means that if you can just get away with your unconstitutional law long enough, it will magically become constitutional in virtue of the fact that it’s now traditional, and hence will pass the rational basis test where it wouldn’t have otherwise. What this means is that the courts are taking the bare fact of tradition as a reason. This offends my logical sensibilities, not that I should expect many people would care about that.
Nope, I said no such thing. I said your logic regarding equal protection claims was faulty, and I used a particular application to show why. Talk about your weaseling. You honestly think you can make any claim, wave your hands hysterically, and that somehow makes your argument stronger. Whatever.
You are either beyond the capacity for rational thought as it relates to this issue, or you are lying. It’s difficult to think this kind of grandstanding with no basis in fact isn’t deliberate. Perhaps you really are as bad a debater as you seem. Tell you what, champ, why don’t you call in a mod. If I am actually perpetrating slanderous lies, that ought to be grounds for banning. Why would you stand for such a thing? Go on, I encourage you to.
Honest to God, it is posters like you, with your insulting, baseless horeshit in response to reasonable debate, that has degraded this board over the last couple of years to the point where it is a chore jumping into a thread, anticipating the vile spray of lying, blind PC chauvinism that one is apt to get splashed with.
No, I think I can provide logical arguments and clarify them where that may be needed. I harbor no illusions that I will receive comparable responses, however. You are a weak, dishonest debater, and I should have known from prior exchanges. Why bother. Feel free to work yourself into a self-righteous lather.
Classic Elvis bullshit! Anyone who disagrees with him is on the side of evil–fucking incredible! There’s no possibility of honest disagreement. If you think I’m getting into an endless exchange with someone incapable of honest debate, forget it. What’s nice is that this is a written exchange, so we can leave it to anyone who cares to read to decide whose credibility has taken a hit in this thread.
However, all indications are that they will not – at least the current Court has not shown a willingness to extend “implausible” to rationales such as preserving the tradtional societal institution and encouraging procreation.
Simple thought experiment: if you could place an equal protection same-sex marriage case on the Supreme Court’s docket right now, would you?
Yes. The election is over, and I think the chances of a favorable same sex ruling is at least as good as a coin toss. Justice Scalia apparently fears it, since he listed same sex marriage among his parade of horribles that will ensue after Lawrence.
Any “backlash” that might ensue has two years to die down. And if the Court upholds the same sex marriage bans, the only thing that will happen is to leave in place the anti-gay marriage regime in 49 States.
Add to this, I believe that once gay marriage is legalized nationwide, we’d largely grow to accept it. So even if the decision is reversed later down the road by a more conservative court, most states would choose to still allow it rather than strip thousands of their citizens of rights they already have.
Well, so far as I can tell, leading gay rights activists are not in agreement. They seem to be advocating that test cases stay away from federal claims and explore only claims under states’ constitutions.
Oh my. Do you not see that your entire post supports anti-“SSM” legislation?
The states are free to permit (or deny) marriage rights, outside any realm covered by the Constitution, so you have it?
“There is nothing illegal about two men [marrying] until it’s codified.”
Quite true. And every state so codifies it as illegal, until Mass.
Likewise, and inevitably, then: “There is nothing illegal about two men [not being allowed to “marry”] until it’s codified [in the Constitution].”
Q.E.D. , in at least the other 49 States, “SSM” is illegal, full stop. No problem, no Constitutional conflict.
Honestly, I don’t think (just for your sake) that people should tinker with constitutional interpretation until they understand the possible consequences of their “logic.” But hey, thanks for the assist. But hey, that’s just one man’s opinion; bring on the laymen’s learned constitutional interpretations, if they wish. How are they faring against Bricker and DCU, again?
So . . . the action of deceived or rogue ministerial employees, subsequently and definitively disclaimed and denounced by their principals, has precedential value?
Much more importantly . . . your proposition that precedent is not “sound social policy” is a very interesting one, but one that is contrary to the entire Anglo-American common law. Just so’s you know, and what not, as far as the burden you’ll bear in applying this unique and individualistic view of the non-applicabiliaty of prior conduct in adjudicating and evaluating laws under the Anglo-American jurisprudential paragidm.
