Quite a coincidence that they never made it on ballots “long before” the Massachusetts decision, but in the first major election FOLLOWING Goodridge, there were 11, with 2 making on the ballot even before the next major election.
Dewey said:
Emphasis mine. And he’s exactly right. There are ALWAYS groups working for the passage of all sorts of amendments – the 100% passage rate is what’s attributable to Goodridge backlash; the mere presence of people agitating for such goals ahead of time is irrelevant.
C’mon – why am I arguing this? Do you really believe that if the Massachusetts decision and the San Francisco mayor’s office had not made headline news that all these measures in all these states would have passed so overwhelmingly?
I think it’s kind of funny that in your last post you accuse me of not reading yours, and then you go on to say this after I’ve explicitly said the “backlash” point was not a substantive argument in favor of constructionism, but rather a mere aside on a comment you made in passing. Pot, Kettle, Black.
At any rate, I see the next shift has arrived. Bricker, kindly take over as I have clients scrambling to get deals done before the Thanksgiving holidays; I’ll tag back in later.
The “pro-SSM” argument is dependent on implying that there was a pre-existing and widely-accepted right to ‘gay marriage,’ which was embodied in the law and ratified by such innoccuous events as the Mass. court recognizing what was already more or less established fact, viz., a clear and pre-existing constitutional right to ‘homosexual marriage.’ Then . . . in a sudden lurch to the right, the bigoted American populace suddenly moved to take away these well-established rights.
It’s always good, rhetorically, to present yourself as the defender of already-established principles, and your opponents as the wild-eyed emotion-fueled radicals. The ‘pro-SSM’ crowd, by refusing to acknowledge that the sudden and effective energization of the ‘anti’ crowd has been actuated by one and only one thing, judicial activism, has convinced itself that the fact that homosexuals can’t marry is an acute and unprecedented injustice just now being inflicted on them, that things have gotten worse for them in the past four years (rather than far better, given Lawrence), and that they’re about to get even worse, with ‘existing rights’ eroding further. Instead, if anti-‘SSM’ amendments have momentarily stalled judicial activism in some states, it represents only a slowing of the leftward-trend of judicial policymaking. It certainly doesn’t mean that overall substantive policy on homosexual rights or ‘domestic partnerships’ is moving to the right of where it’s ever been historically.
No, you are misinterpreting. The constitutional right protected is the right to equal treatment under the law. Denying same-sex couples a marriage license, which has benefits, protections and responsibilities under the law, denies them equal protection. Ergo, the right to marriage is protected by the Equal Protection clause.
I would amend my original statement only by saying that the “pro-‘SSM’” position as it is currently being presented relies implicitly on the notion that there is some well-recognized right to “gay marriage.”
“But there is! Equal protection!” Which has never, up till five minutes ago, been judicially recognized or accepted as plainly establishing a “right” to “gay marriage.” And lack of prior judicial recognition matters, in a precedent-based system.
If it were as straightforward as you seem to imply (“Ergo . . .”) to get to “gay marriage right” from “equal protection rights,” don’t you think someone, somewhere would have done it before now? We’ve had the equal protection clause for awhile now.
A pilot’s license has benefits, protections, and responsibilities under the law. Not everyone can get one. I do not conclude that “Ergo,” the pilot licensure laws are unconstitutional.
“Equal protection” does not mean “everyone gets what he wants, equally, because anything else is unconstitutional.” It means that those laws that do exist must treat similarly-situated persons similarly. This has been explained at length in other threads, but suffice it to say, there’s the rub.
Simply arguing that equal protection guarantees “gay marriage” because anything else is unequal doesn’t advance the ball, but does partake of the problem I identified in the earlier post: the tendency to pretend, or set the tenor of the debate as if, there were a pre-existing (and recognized) right to “gay marriage,” for which the equal protection clause was a widely-accepted enforcement vehicle. It’s meaningless to speak of rights without remedies, and till Mass., no court had ever provided such a remedy, and the fed. courts haven’t quite mustered up the nerve to create one from whole cloth, not yet. This being so, using “violation of equal protection same sex marriage rights” as a predicate for why a judicial imposition of such rights would be constitutionally-justified is about as speculative, and useful, as invoking the “violation of my right to have state-funded medical care” or “violation of the right to public nudity” or “violation of my right to angelic intervention.”
If you feel the federal Equal Protection Clause requires every state to recognize same-sex marriage, then what are you complaining about? You task is done. You have the right to get married and have any state in the union recognize it.
Let me know when you have exercised this obvious right.
If you can’t… then you are wrong. Because merely repeating “there is a constitutional right” does not make it so. (Of course, my own pronouncements are just as weighty, I admit). The difference is that my pronouncements are echoed by the case law - or lack thereof - of federal courts. No federal court that has addressed the issue has found the Equal Protection Clause to mean what you say it means. Lawrence v. Texas, for example, was decided on Due Process grounds, not Equal Protection.
So if you wish to insist that federal Equal Protection gives you the right to same-sex marriage… insist away. It’s good exercise. But it won’t help you actually execute a same-sex marriage anywhere in the United States. (Yes, even in Massachusetts: they decided their rule based on their state constitution, not the federal one).
Let me point to the vast numbers of people that have successfully entered into same-sex marriages under the guarantees afforded to them by the Equal Protection Clause of the federal constitution.
Less snarkily, let me point out that a law is presumed constitutional until a court has said it isn’t. That is, we’re not on a even see-saw here: there is a federal law prohibiting same-sex marriage recognition. That law is constitutional, because the presumption is that it’s constitutional and it’s for the opponent to overcome the hurdle and show it UNconstitutional. So DOMA stands for the proposition that it is NOT a violation of the federal Equal Protection Clause to refuse to recognize same-sex marriage.
So the lack of federal case law on my side is not the same as the lack of federal case law on his side, since my side has federal law on it.
What? Do you even understand how jurisprudence works?
There is no burden on a person or state who maintains that there is no federal constitutional prohibition against a particular state action. The states have plenary legislative power, except when it can be clearly shown that the Constitution or some other law intervenes to preclude such power.
There is never, and never has been, a burden of proof upon a party who is merely opposing the creation of a new and never before recognized alleged “constitutional right” to prove a negative by showing that the purported right doesn’t exist. That isn’t how law works. I can’t point to any federal case-law that is directly on point to “prove that there is no constitutional right to government funded health care.” It’s nonsensical to suggest, though, that this does anything to weaken my clearly-correct statement that there is no such right, at least until you point to some case-law clearly meeting your affirmative burden of showing that a never-enforced, never-recognized “right” should now be enforced.
Oh, and here’s the kicker. The heroic Justice O’Connor’s concurring opinion in Lawrence made it clear that the rationale of Lawrence did not apply, mutatis mutandis, to “gay marriage.” So, the score is: fed. jurisprudence not supporting “gay marriage” 1. You: 0. And the “SSM” proponents are the ones with the burden of going forward. Not the opponents.
Your line of thinking leads to the odd situation in which the more ridiculous, unheard-of, unprecedented, and never-before-recognized the proposed new right is, the more you can claim it must be a right, precisely because no one’s ever been silly enough previously to militate in favor of such a far-out right, and thus there’s no case-law explicitly rejecting it.
Fortunately, this is not how the system works. The total historical silence of the Constitution and the courts as to a purported new right is not, to put it mildly, a fact in favor of its existence, as you seem to suggest.
[QUOTE=Huerta88]
What? Do you even understand how jurisprudence works?
[quote]
We shall see, shan’t we?
Change your bolded words to “always-existing but suppressed until brought into court”. Look into the equal-protection clause, and its history of having examples of its suppression being ended by court cases, for your own edification.
Only if you can support that “clearly correct” allegation, in the absence of any legal finding to that effect.
Concurring opinions have the force of law, perfesser?
True. There is no case without a plaintiff. Your point?
bricker, the status quo is indeed the status quo. Thanks for the brilliant explanation of that point. You do, however, evade the question of the federal law suppressing equal rights for certain persons being able to withstand the inevitable court challenges to it. You have no basis for asserting that the quo will indeed remain status afterward. State law, as you’re well aware, is 0-1 against you. Clear now?
I don’t know who is keeping score for you. You believe that the only state to consider the matter ruled in favor of same-sex marriage? You’d be stunned to hear of other states that have ruled again finding a right to same-sex marriage in their own state constitutions?
I’m really fascinated to hear where you got the ‘zero’ part from. Do tell.
“Always existing, but never recognized by the people who wrote the amendment, the people who read it for 140 years, and never invoked by any court as an available remedy under the amendment that created the always-existing right.” Seems a funny sort of “existence.” Almost, ontologically, like “non-existence.”
Do you seriously have a view of human history in which the following sequence of events is even plausible, let alone the simplest explanation for how we got to where we are? Framers and their constituents in the states mean to, and do, bring into existence a (or confirm the magical “always-existing” presence ex nihilo) right to “SSM;” then Framers and their constituents immediately give the lie to the existence of that which they have just gone to the trouble of ratifying by “suppressing” it; then complaisant judges unanimously, across 150 years, aid and abet such “suppression;” then, suddenly, brilliant message board posters and activists discover the long-“suppressed” Da Vinci Right, whereupon, “ergo,” all becomes plain?
Or did the Framers and their constituents accidentally or unknowingly create a right (how would this happen?) and, rather than going back to simply expunge it, find it easier to “suppress” it by hiding it in plain view? It doesn’t even make sense as conspiracy theory.
If you’re seriously suggesting that there is a constitutional right to free government health care, you’re beyond my help. If you seriously believe that the non-existence of such a right cannot be unanimously agreed to (as I can assure you scholars from Tribe to Graglia would agree) in the absence of a holding to such effect, then you go right on believing that; all I’m telling you is that you and I and our respective grandchildren I will all die of natural causes before any judge enforces such a “right,” which to me is indistinguishable, again, from saying that the right does not exist in any meaningful way.
The Constitution is not a pinata that can keep being pounded on to magically yield those last elusive pieces of chicle, much as the unelected Platonic guardians have treated it as such in recent history.
They have considerably more persuasive authority than your non-existent federal authority in favor of the pro-‘SSM’ case, to be sure. While I didn’t bother to mention it, the Lawrence majority opinion also contains language distinguishing regulation of sodomy from regulation of marriage or similar contractual relationships between two persons. But it’s beside the point; as I mentioned, it’s a red herring to suggest that anti-“SSM constitutional right” arguments require any affirmative support at all, in the first instance.
And there is no prima facie case to which a defendant would even have to respond without a showing by the plaintiff that some established right is being violated.
A right which is not enforced does not therefore cease to be a right. You mistake the application of rights in a particular circumstance with the underlying right.
The right to privacy asserted as an inference from the Fourth Amendment and other related Constitutional protections, and the right to autonomy in personal relationships which Kennedy in Lawrence set up as its corollary, is not a “right to practice sodomy” but a right to engage in whatever behavior, in private, is mutually agreed to by consenting adults without intrusion by the minions of the law. To wit, James Buchanan and Rufus King in their apartment had the right to discuss the Missouri Compromise to their hearts’ content – or to engage in whatever other behavior suited the two of them; Katharine Bates and Flora McFlimsey had the right to go into their home and engage in a brisk game of Whist or the exploration of the butterfly kissing the orchid, as they chose.
Our ardent strict constructionists would fail to infer a right to privacy, on the construction that only when engaged in strictly defined searches and seizures are the police limited by the Fourth Amendment. The insipidity of this position is best illustrated by the suggestion that under that construction, a policeman in uniform has every right to enter your home, stand in your bathroom as you defecate and bathe, spend the night in your bedroom with you and your spouse, so long as he is not actively “searching” and/or “seizing.”
The principles of Constitutional law apply in circumstances not contemplated by their authors. For example, whether or not the Federal government has the right to regulate stem cell research may be found in the grant of powers in Article I – if some construction of those enumerated powers permits such regulation, then they may, and if not, not. That such research was not within even the imagination of the Founding Fathers is no bar to this reading – the grant of enumerated powers was intended to place the Federal government supreme within a strictly limited ambit of power, and the regulation of new developments in culture or science will either fall within that grant of power or not.
Too, no one would make the case that vanilla has no right to attend the Assembly of God, since it was founded about 1906 and the First Amendment was adopted in 1789. Rather, the First Amendment guarantees the free exercise of any religion, not merely those that happened to be in existence in the Thirteen States when it was adopted.
And in a society where allegations of election fraud are rampant (whether justified or not) and redistricting has come to mean the representatives choosing their constituents rather than the other way around, to found an argument on whether the officials doing their legally prescribed duty are elected or not is arguably disingenuous. I have as much chance of having Richard Burr advocate my views in the Senate over the next six years, as Barney Frank does of getting James Dobson’s endorsement for reelection.
Question begging. Something can’t “cease” being a right, or be discussed as such, until it “begins” being a right. Identify for me the time when the “right to ‘SSM’” came into being. If it is at the Creation Of The Universe And Time, well, good luck, you’ll need to convince your fellow citizens of that, rather than simply asserting so or telling a court it has to accept your divine assurance on this point. If it is 1789 or 1865, show some evidence as to how this right was created, or understood by anyone on God’s Green Earth to have been created, since nobody until five minutes ago thought there was any “right” to “enforce” (certainly, no one, among the thousands of jurists who may even be as smart as this board’s members, ever enforced it), or to “cease” enforcing.
Your example regarding the policeman is not very bright. If a policeman were in your home for any reason other than search or seizure (i.e., if he could not elaborate a police-duty-related reason to be there), you’d not need the Constitution at all. He’d be in violation of the laws on trespass. The common law might even give you the right to shoot him if he resisted your attempts to eject him.
What part of “equal protection” don’t you understand? Suppressing a right doesn’t make it disappear, no matter how much scorn you try to apply in lieu of argument. Ask any black person if his equal protection rights were always recognized, for instance.
As is comprehension on your part. I claim no such thing - but that may change in future generations, mayn’t it?
Only if you confine your thinking, as does Bricker, to the status quo, dismissing any possibility that any change can both happen and be proper.
What, then, does “equal protection” mean to you? Where can you draw limits on it that can withstand either intellectual or moral scrutiny? No hurry; I know you’ll have to think about that awhile.
IOW, no. I’ll take that as a concession of being full of shit, loath though you be to admit it directly.
Do you ever succeed in court by telling the judge “I don’t need to present a case, I’m the defendant”? That may be true, but it’s the best way to guarantee losing there is. This issue is going to court. Proponents of continuing to suppress equal rights have to have a sound argument for doing so. That sound argument would be, what? Your vitriol?