Judicial activism is a good thing, unless you disagree! And how long have we had it?

[Hamlet]

In a recent Pit thread, we discussed the need for a bit more civility and in Great Debates and the need for people who may, in fact, agree with a particular poster to point out flaws in their in posts. In light of that discussion, I think you are being a bit harsh, ElvisL1ves. What Bricker, I, and Huerta88 (if he ever makes it back) are discussing purely constitutional issues. Bricker has repeatedly stated he supports same sex civil unions (which, unless it has the exact same effects as a “real” marriage is still creating a group of second class citizens) and may, in fact, not have a problem with same sex marriages. However, this is a constitutional discussion, not a simple policy one.

Looking at it completely objectively, the Massachusettes Supreme Court’s ruling in Goodbridge is clearly ground breaking and could be considered “judicial activism” by those who have a distaste for Substantive Due Process. In other discussions with Bricker and others, that is their main problem with the ruling. Not that it has an outcome that allows same sex marriage, but that it invokes SDP. Their argument is with the process, not the outcome.

@ElvisL1ves

Your inability to support your assertion that tradition alone is a rational basis, meaning one that is a product of reason rather than simple, base emotion, should have given you pause already, if the lack of any other remaining argument hadn’t done it first.

I will point out that rational basis is an extremely deferential test and almost anything will suffice. While I agree with you that “tradition” is simply insufficient, there is supporting caselaw, and Sosman’s dissent in Goodbridge makes a solid argument for their position. Sosman is wrong, of course, but there is a valid, if incorrect, argument to be made.

@ElvisL1ves

You might, btw, have read the MA SJC Goodridge dissents yourself before calling them arguments at all, much less “well-crafted” ones - all they amounted to was “We shouldn’t be dealing with this issue at all; it’s for the Legislature and the people to decide”. That isn’t argument, that’s simple evasion, although your own predilection for doing so as shown in this very thread may explain your difficulty in seeing the difference when it’s done elsewhere.

I disagree. As I’ve stated, while I agree that Spina’s dissent is poorly written and almost non-sensical, Sosman’s dissent is well-crafted and articulate. Cordy’s dissent, in my opinion, suffers mostly from conclusory statements without support, and his insistence that marriage is founded on procreative ability and use of the ERA are specious arguments at best. But Cordy does point out that:

This is not to say that a statute that has no rational basis must nevertheless be upheld as long as it is of ancient origin. However, “[t]he long history of a certain practice . . . and its acceptance as an uncontroversial part of our national and State tradition do suggest that [the court] should reflect carefully before striking it down.” Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 557 (1979). As this court has recognized, the “fact that a challenged practice ‘is followed by a large number of states . . . is plainly worth considering in determining whether the practice “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”’”

While Cordy does defer to the legislature way too much and his dissent is mostly tortured, he does make a valid point at times.

Sosman’s dissent, however, is brutally honest, intelligent, and articulate. To call it otherwise is a misinterpretation. Don’t get me wrong, Sosman is incorrect, but his dissent is a valid position to have.

[ElvisL1ves]

You do appreciate the difficulty in showing someone how their reasoning is faulty without giving them cause to be offended. But, as you agree, Bricker is wrong.

Looking at it completely objectively, the Massachusettes Supreme Court’s ruling in Goodbridge is clearly ground breaking and could be considered “judicial activism” by those who have a distaste for Substantive Due Process.

We’ve done that before, too, and have similarly found SDP to be in the eye of the beholder - perhaps even more so than JA. That’s the subject of the thread; the willingness of conservatives to use it as a pejorative rather than a conclusion.

Sosman is wrong, of course, but there is a valid, if incorrect, argument to be made.

An argument that has a formal-logic structure but is still incorrect is hardly valid. And Sosman’s “argument” is the one you respect.

[Bricker]

@Hamlet

I agree completely that same sex marriages do not have the same “deep roots” in our nations history. However, neither did same sex sexual encounters or interracial marriage. Civil marriage has long been found to be a fundamental right. Limitations on that right, whether between interracial couples, people who still owe child support, or same sex couples, do not change that fact.

Same-sex enounters are not a fundamental right even now. Your’re mixing rationales: Lawrence was decided on Due Process grounds.

Now, if you were to ask me: is there a substantive due process right to same-sex marriage, considering the precedent set by Lawrence… then I would say that yes, there is. It’s obvious.

But we’re talking equal protection here, still.

[Bricker]

@ElvisL1ves

Your refusal, or inability, to show how there’s a difference now, despite repeated requests, should give you pause. Your inability to support your assertion that tradition alone is a rational basis, meaning one that is a product of reason rather than simple, base emotion, should have given you pause already, if the lack of any other remaining argument hadn’t done it first.

With all due respect, ElvisL1ves, we are discussing constitutional issues here, in which words and phrases do not always mean what the layman’s intuitive understanding might think they mean. In an effort to assist you, I have offered detailed explanations of the Rational Basis test. Hamlet and I have had no trouble discussing the test and identifying the precise points at which we disagree. It really doesn’t add much for you to come into the middle of the discussion with a harsh condemnation based on an interprepation of “rational” that sounds good, but belongs only to you and not the courts.

I’d really appreciate it if you would go back and review the detailed discussions of the Rational Basis test posted earlier.

• Rick

[Bricker]

@Hamlet

In a recent Pit thread, we discussed the need for a bit more civility and in Great Debates and the need for people who may, in fact, agree with a particular poster to point out flaws in their in posts. In light of that discussion, I think you are being a bit harsh, ElvisL1ves. What Bricker, I, and Huerta88 (if he ever makes it back) are discussing purely constitutional issues. Bricker has repeatedly stated he supports same sex civil unions (which, unless it has the exact same effects as a “real” marriage is still creating a group of second class citizens) and may, in fact, not have a problem with same sex marriages. However, this is a constitutional discussion, not a simple policy one.

Correct. To clarify my position, I support same-sex marriages crafted by state law, but I do not believe there is a federal constitutional right mandating their recognition.

However, as I acknowledge above, if Lawrence is good law, and substabtive due process a valid analytical tool, then I’d say there IS a federal right to same-sex marriage.

[Hamlet]

@Bricker

Same-sex enounters are not a fundamental right even now. Your’re mixing rationales: Lawrence was decided on Due Process grounds.

You know, I really hate the decision in Lawrence. It’s poorly written, unclear, and inartfully drafted. I actually agree with Scalia’s dissent when he rightly so points out that Lawrence’s majority opinion does not come out and say that same sex sexual encounters are a fundamental right, but seem to treat it as so. They’ve created quite the quagmire.

@Bricker

Now, if you were to ask me: is there a substantive due process right to same-sex marriage, considering the precedent set by Lawrence… then I would say that yes, there is. It’s obvious.

Glad we agree.

@Bricker

But we’re talking equal protection here, still.

I did not know that we were limited to only equal protection. Could you explain how the right to same-sex marriage would be fundamental for an SDP analysis, but not for Equal Protection analysis? I’ll admit it’s been awhile since I’ve delved into the subtle differences between the two, but I have a hard time understanding how the right could be fundamental, but also not fundamental.

[Bricker]

@Hamlet

You know, I really hate the decision in Lawrence. It’s poorly written, unclear, and inartfully drafted. I actually agree with Scalia’s dissent when he rightly so points out that Lawrence’s majority opinion does not come out and say that same sex sexual encounters are a fundamental right, but seem to treat it as so. They’ve created quite the quagmire.

Right. And it’s precisely that quagmire that mandates my conclusion.
The process to identify fundamental rights is clearly described. Same-sex sexual encounters do not fall in to this category, but they are implictly recognized as fundamental. (I would note, parenthetically, that this is what happens when you start with the result and try to work backwards to shoehorn your reasoning in).

If same-sex sexual encounters are a fundamental right, and opposite-sex marriage is a fundamental right, I can imagine no set of reasons, however twisted, that would permit a conclusion that same-sex marriages are not a fundamental right - under the rubric of substantive due process. I can only assert that since Lawrence was decided on SDP grounds, we are not obligated to disturb the extant equal protection reasoning mandated heretofore.

So, as twisted as it sounds, we KNOW same-sex enounters are a fundamental right under SDP analysis, because Lawrence says so, even though we are not told what process gets us there. Lawerence rejects relying upon equal protection grounds, most explicitly in O’Connor’s concurrence. Nothing in Lawrence purports to disturb well-settled equal protection analysis.

Until the Court clarifies (or, hopefully, overturns) Lawrence, this is what we’re left with.

Glad we agree.

I did not know that we were limited to only equal protection. Could you explain how the right to same-sex marriage would be fundamental for an SDP analysis, but not for Equal Protection analysis? I’ll admit it’s been awhile since I’ve delved into the subtle differences between the two, but I have a hard time understanding how the right could be fundamental, but also not fundamental.
[/QUOTE]

[Hamlet]

@Bricker

Right. And it’s precisely that quagmire that mandates my conclusion. The process to identify fundamental rights is clearly described. Same-sex sexual encounters do not fall in to this category, but they are implictly recognized as fundamental. (I would note, parenthetically, that this is what happens when you start with the result and try to work backwards to shoehorn your reasoning in).

I would disagree with you that the process of indentifing fundamental rights leads to the conclusion that same sex sexual encounters are NOT fundamental. Lawrence would be a much better, sounder opinion if they came out and stated that same sex sexual relations are a fundamental right.

And, just as an aside, I think this also illuminates our discussion of the propriety of limiting fundamental rights by definition. The concept that opposite gender marriage is a fundamental right, but same sex marriage is not is the same as sexual relations between opposite gendered consenting adults is a fundamental right, but same sex sexual relations are not. I find that argument completely unpersuasive.

@Bricker

Until the Court clarifies (or, hopefully, overturns) Lawrence, this is what we’re left with.

Overturns? Why, outside of it’s use of SDP, would you want it overturned? Putting aside the constitutional arguments for one second, would you not agree that having sexual relations with another consenting adult, regardless of whether or not that other adult is of your same gender, is a fundamental right? Now, again we’re not talking constitutionally but rather your personal opinion. Is it the same issue for you… sex between opposite genders is fundamental right, but not between same sex partners?
Oh, and I’m assuming there was a confusion between SUBMIT and PREVIEW, because you left this question hanging:

@Hamlet

I did not know that we were limited to only equal protection. Could you explain how the right to same-sex marriage would be fundamental for an SDP analysis, but not for Equal Protection analysis? I’ll admit it’s been awhile since I’ve delved into the subtle differences between the two, but I have a hard time understanding how the right could be fundamental, but also not fundamental.

[/QUOTE]

[Polycarp]

Well, given what has been set as parameters for this discussion, a question occurs to me. I presume we are going to work from the Loving ruling that marriage is a fundamental right, since that is a SCOTUS pronouncement in connection with the idea that interracial marriages may not be prohibited – and I will take that as a given in any context you feel appropriate. (In other words, I would presume that the fundamental right to contract a marriage, wherever you may find it, is subject to equal protection in that laws may not prohibit X from marrying Y on the basis of what race X or Y are, that being an invidious ground for discrimination.)

If any participant does not see Loving’s assertion of marriage as a fundamental right, he should so indicate, IMO.

However, given that, what precisely is the “right to marriage” defined as? A fundamental right to marry someone, although the identity of that “someone” may be restricted by law?

And if that is the case, then the identity of the Y whom X may or may not marry, which cannot be restricted on the basis of race (because race is a protected classification), is similarly protected on the basis of other protected classifications.

And, although sexual orientation is not a protected classification under Federal law, sex is.

In other words, if a state may not restrict X from marrying Y on the basis of the race of X and Y, it seems to me that equal protection would similarly mandate that a state may not restrict X from marrying Y on the basis of the sex of X and Y.

[Hamlet]

@Polycarp

And, although sexual orientation is not a protected classification under Federal law, sex is.

In other words, if a state may not restrict X from marrying Y on the basis of the race of X and Y, it seems to me that equal protection would similarly mandate that a state may not restrict X from marrying Y on the basis of the sex of X and Y.

I only have a few moments, but I will state that this argument was also made, and rejected, by the courts in Lawrence. The discrimination in denying same sex marriage is not on the basis of gender, and it does not have a disparate impact on one gender or another. It is on the basis of sexual orientation. I have yet to see a court accept the idea that discrimination on the basis of sexual orientation amounts to discrimination on the basis of gender. It’s been argued, but rejected by almost every majority opinion out there.

[Bricker]

@Hamlet

I would disagree with you that the process of indentifing fundamental rights leads to the conclusion that same sex sexual encounters are NOT fundamental. Lawrence would be a much better, sounder opinion if they came out and stated that same sex sexual relations are a fundamental right.

Except it would beg the question of which standard they used. “Long tradition in our nation’s history and culture?” Nope. “Deeply rooted in the concept of ordered liberty?” Um… nope.

So to identify same-sex sexual enounters as a fundamental right would also entail enunciating a third rule for fundamental rights, or some discussion of why “Nope” is not the right answer above.

And, just as an aside, I think this also illuminates our discussion of the propriety of limiting fundamental rights by definition. The concept that opposite gender marriage is a fundamental right, but same sex marriage is not is the same as sexual relations between opposite gendered consenting adults is a fundamental right, but same sex sexual relations are not. I find that argument completely unpersuasive.

Well, yes. That’s a glaring contradiction. But while you resolve the contradiction by assuming all of those should be “fundamental rights,” I resolve the question by saying that Lawrence was wrong to sneak in same-sex enounters as a quasi-fundamental right, under the radar.

Overturns? Why, outside of it’s use of SDP, would you want it overturned? Putting aside the constitutional arguments for one second, would you not agree that having sexual relations with another consenting adult, regardless of whether or not that other adult is of your same gender, is a fundamental right? Now, again we’re not talking constitutionally but rather your personal opinion. Is it the same issue for you… sex between opposite genders is fundamental right, but not between same sex partners?

My personal opinion is that states are foolish to criminalize same-sex encounters, just as they are foolish to criminalize adultery and fornication. But that foolishness does not offend the Constitution, any more than the city of Lago Vista handcuffing and jailing a woman for an offense punishable, at most, by a fine.

From a constitutional point of view, sex between unmarried persons may be criminalized, as many states do. Sex between persons married, but not to each other, may be criminalized.

Originally Posted by Hamlet
I did not know that we were limited to only equal protection. Could you explain how the right to same-sex marriage would be fundamental for an SDP analysis, but not for Equal Protection analysis? I’ll admit it’s been awhile since I’ve delved into the subtle differences between the two, but I have a hard time understanding how the right could be fundamental, but also not fundamental.

I’m just following the natural conclusions mandated by the existence of Lawrence. Same-sex sexual encounters are a fundamental right as a matter of substantive due process analysis. Although the majority does not explain how they reached this conclusion, they clearly have, since they treat it as such. Equally clearly, they reject Equal Protection guarantees in this area. Therefore, there is a difference between Equal Protection fundamental rights and Due Process fundamental rights.

And to be clear where I stand: as a member of, say, the Fourth Circuit, I would vote to uphold a due-process right to same-sex marriage, following the dictates and reasoning of Lawrence as I am legally obligated to do. As a member of the Supreme COurt, I would find no such right exists, and overturn Lawrence to the extent it was inconsistent with that holding.

• Rick

[Gorsnak]

@Hamlet

I only have a few moments, but I will state that this argument was also made, and rejected, by the courts in Lawrence. The discrimination in denying same sex marriage is not on the basis of gender, and it does not have a disparate impact on one gender or another. It is on the basis of sexual orientation. I have yet to see a court accept the idea that discrimination on the basis of sexual orientation amounts to discrimination on the basis of gender. It’s been argued, but rejected by almost every majority opinion out there.

It’s certainly discrimination on the basis of gender. It’s not like they’re checking the orientation of the applicants. It may not be discrimination against either gender, but it’s certainly discrimination, and the basis on which the discrimination is being done is gender.

[Bricker]

@Gorsnak

It’s certainly discrimination on the basis of gender. It’s not like they’re checking the orientation of the applicants. It may not be discrimination against either gender, but it’s certainly discrimination, and the basis on which the discrimination is being done is gender.

But this view has been argued, and rejected. It may sound good, but it’s not the law.

[Polycarp]

Regarding the last few posts, I think a case can be made – while it might be a quite reasonable assumption that two persons of the same sex desiring to enter into a marriage are gay, the basis on which the law prohibits the union is not whether or not they are gay, but upon their sex (in the MorF sense).

Rick, could you expand on the circumstances under which such a claim was made and rejected, with reference to marriage, as opposed to sexual relations or some other related behavior? I’m not so much doubting as curious – while I’ve done some reading regarding the subject, I’m not familiar with any case of the sort you appear to be referencing. Thanks.

[Polycarp]

@Hamlet

Overturns? Why, outside of it’s use of SDP, would you want it overturned? Putting aside the constitutional arguments for one second, would you not agree that having sexual relations with another consenting adult, regardless of whether or not that other adult is of your same gender, is a fundamental right? Now, again we’re not talking constitutionally but rather your personal opinion. Is it the same issue for you… sex between opposite genders is fundamental right, but not between same sex partners?

Mmmm…while I think that a good case could be made for its being a strong instance of using SDP to identify a “newly discovered right” from the strict-construction perspective, what was identified in Lawrence was not a constitutional right to have consensual sexual relations regardless of sex, though that was the circumstance that caused the issue to be raised, but a right to autonomy in personal relations in private – in other words, individuals have a right to do what they mutually agree to do in privacy, and the state is not empowered to enter into their privacy to regulate it. For obvious reasons, this is a rather far-reaching claim, covering much more than the anti-sodomy-law application that made the case celebrated.

And while I celebrate it as a foundation of modern pragmatic libertarianism, I can certainly see why Rick might find it a less-than-palatable decision, for reasons quite different than any imputation of homophobia – the behaviors it would place a constitutional-rights shield over would tend to partially emasculate the police power.

[Gorsnak]

@Bricker

But this view has been argued, and rejected. It may sound good, but it’s not the law.

Eh? It’s an indisputable logical fact. I wasn’t making a legal point. There is discrimination with regards to who may obtain a marriage license, yes? Now, what categories are used to determine whether a license is issued? Do they check the orientation of the applicants? No, they do not. They check the gender of the applicants. This is discriminating on the basis of gender. There is no way to dispute that.

Now, this apparently doesn’t count as discriminating on the basis of a suspect class (gender) for the purposes of equal protection analysis, but that is, apparently, because neither gender is disadvantaged, and not because the discrimination is not on the basis of gender.

[ElvisL1ves]

@Bricker

we are discussing constitutional issues here, in which words and phrases do not always mean what the layman’s intuitive understanding might think they mean.

And it is precisely that disconnect between the effete, hermetically-sealed, realm of academic discussion and the real world in which real persons who sometimes have to really become plaintiffs and litigants to establish their rights that causes so much of the friction here. This is not a law board, requiring bar membership to allow the basic privilege of posting; it is Great Debates. Your discussions just might benefit from a little ventilation to the outside world, ya know?

I’d really appreciate it if you would go back and review the detailed discussions of the Rational Basis test posted earlier.

And we would *all * appreciate your unevasively answering questions posed to you - for instance, how you reach this conclusion that tradition is “rational”. You claim to have explained it, but you’ve really only asserted it. We would all appreciate your actually answering how the race standard in the Loving precedent is different from a sexuality standard - that’s something else you’ve simply asserted without support. See the problem here?

[Hamlet]

@Bricker

Except it would beg the question of which standard they used. “Long tradition in our nation’s history and culture?” Nope. “Deeply rooted in the concept of ordered liberty?” Um… nope.

So to identify same-sex sexual enounters as a fundamental right would also entail enunciating a third rule for fundamental rights, or some discussion of why “Nope” is not the right answer above.

The quick answer to why “Nope” is not the right answer above boils down to the discriminatory way you define the right. The right to sexual relations or marriage should not be defined simply by those who have traditionally possessed those rights. Saying there is a fundamental right to sexual relations and marriage, BUT ONLY IF YOU’RE heterosexual, is improperly defining the right. Just as the right to marriage was once defined as “only if you wish to marry someone of the same race”, that discrimination in the defining of the right is what violates the constitution. Unless the State has a rational basis/compelling interest in making that discrimination, it should be held to be unconstitutional. Which, once again, boils down to why do heterosexuals have rights that homosexuals do not.

@Bricker

Well, yes. That’s a glaring contradiction. But while you resolve the contradiction by assuming all of those should be “fundamental rights,” I resolve the question by saying that Lawrence was wrong to sneak in same-sex enounters as a quasi-fundamental right, under the radar.

Lawrence was wrong to sneak in same sex relations as quasi-fundamental rights. They should have just stated that consenting adults have the fundamental right to have sexual relations (or marry) with the person of their choosing, regardless of race or sexual orientation.

@Bricker

My personal opinion is that states are foolish to criminalize same-sex encounters, just as they are foolish to criminalize adultery and fornication. But that foolishness does not offend the Constitution, any more than the city of Lago Vista handcuffing and jailing a woman for an offense punishable, at most, by a fine.

But when that “foolishness” has no rational basis/compelling interest to be grounded in, it should be Unconstitutional.

@Bricker

From a constitutional point of view, sex between unmarried persons may be criminalized, as many states do. Sex between persons married, but not to each other, may be criminalized.

While I agree fornication statutes (of which I’ve never heard there being a conviction for) may indeed be unconstitutional, adultery statutes have a clear state interest at stake: to preserve monogamy, to protect spouses from harm visited by the other spouse, and to maintain an orderly system for assigning the benefits and burdens associated with marriage, and so on. If you ask me, openly cheating on your wife is a lot more destructive to the institution of marriage than allowing two same sex people to marry.

@Bricker

And to be clear where I stand: as a member of, say, the Fourth Circuit, I would vote to uphold a due-process right to same-sex marriage, following the dictates and reasoning of Lawrence as I am legally obligated to do. As a member of the Supreme Court, I would find no such right exists, and overturn Lawrence to the extent it was inconsistent with that holding.

• Rick

And you would be wrong.

[Bricker]

@ElvisL1ves

And it is precisely that disconnect between the effete, hermetically-sealed, realm of academic discussion and the real world in which real persons who sometimes have to really become plaintiffs and litigants to establish their rights that causes so much of the friction here. This is not a law board, requiring bar membership to allow the basic privilege of posting; it is Great Debates. Your discussions just might benefit from a little ventilation to the outside world, ya know?

As a general proposition, I agree.

However, in this particular debate, we are discussing specific principles of constitutional law – not anything else.

And we would *all * appreciate your unevasively answering questions posed to you - for instance, how you reach this conclusion that tradition is “rational”. You claim to have explained it, but you’ve really only asserted it. We would all appreciate your actually answering how the race standard in the Loving precedent is different from a sexuality standard - that’s something else you’ve simply asserted without support. See the problem here?

Some time back, I asked you to explain your understanding of the various tests and standards used in Equal Protection jurisprudence. You did not do so.

Without an understanding of those fundamentals, you cannot meaningfully participate in this discussion.

I have not merely “asserted” that tradition is a valid element to establish rational basis. I have backed it up, with citation to appropriate case law, showing that race-based classifications are suspect and sexuality-based classifications are not.

I will again offer you this deal: you explain to me your understanding of Equal Protection analysis steps, and explain how deferential, under existing case law, “Rational Basis” is. Look back at the post I made, explaining that the “native English speaker” plan you put forth earlier did not apply.

If you can summarize these points adequately, I am willing to continue explaining to you. If not, I see little hope, because it will mean you lack either the interest or the ability to comprehend these matters.

[Bricker]

@Hamlet

But when that “foolishness” has no rational basis/compelling interest to be grounded in, it should be Unconstitutional.

Was Lago Vista wrongly decided?