Deepest apologies, sorry. I missed the part where this *wasn’t * in the PIT. Damn. Scratch the first line nureotik.
Sorry, but we did it with civil rights for racial minorities. And we did it with civil rights for women.
Looks like we’ll have to do it for gays, too.
Suppose the voters of Louisiana voted yes on a referendum to outlaw interracial marriage? Would this be ruled unconstitutional by the Supreme Court? Although I believe this should be a states’ rights issue, the devil’s advocate in me is having a hard time seeing a fundamental difference between a right to marry someone of a different race and that of marrying someone of the same sex. People fall in love and want to marry someone of a different race, and some people are offended by it and even think it wrong. Ditto for falling in love and wanting to marry someone of the same sex. Do those offended by same sex marriage have more of a right to interfere than those offended by interracial marriage?
I understand how a bill becomes a law, thanks. Did you read the post I was responding to and quoted? I was making an ironic comment pointing out that six_personalities is implicitly supporting tyranny of the majority.
Too true. This really frost my tail when things like this happen. You end up alienating more people and end up with a backlash. If your case is strong enough and you think it’s supported by the constitution then let the issues stand on their own merits and take the usual route. Don’t hide behind some bench decision.
Back to the OP, on a procedural-technical issue: I have always had some reservations about the usual practice in many US states, of logrolling a whole bunch of constitutional amendment questions, bond-issue referenda, and citizen initiatives, together with the state/local election (primary or general). I just have this feeling that this can create a situation where one of those polls is affected by people who just showed up to vote for/against someone/something else altogether. I would at least do constitutional amendments separate from the election of public officials (as we do here).
On the vote itself, I agree with the earlier comment: this represents 78% of those who bothered to show up, which in the case of primary elections in the USA is usually already a puny fraction of the eligible electorate. So, a high motivation to go and be heard magnifies one or another part’s influence. If indeed the turnout was of 30% when it would normally be of 25% (a 20% variation), motivated by this issue, then maybe in a “normal” election it would have been still passed, but by closer to 60%.
On New Orleans: Visibility and activity does not equal raw numbers. And what I suspect is a large plurality of citizens with a “yeah, whatever, live and let live, no skin off my nose” attitude, probably also share an indifference to actually go out and vote for or against a particular position, since it’s no skin off their noses, after all.
On six_personalities’s rolling of eyes at our distinguished Airman: Read carefully, six. All he said is that he believes it is inevitable. As in, all these votes do NOTt mean it will go away forever, at most be will be put back in the state-by-state democratic process where it’ll take longer.
Oh, and yes, if SCotUS says gay marriage goes, then all State Constitution articles against it are wet paper.
This brings to mind an interview with Thurgood Marshall during the Brown v. Board proceedings.
Reporter: Why are you pushing for this right now? Don’t you believe in gradualism?
His response: It’s been 90 years since the end of slavery. To me, that’s pretty damn gradual.
Some people will never be ready to extend full rights to every segment of the population. Some will resist out of fear, out of hate, and some will just be stubborn, mutter ‘you’re not the boss of me!’ and dig in. The notion that we have to wait for an entire generation to die off or change their minds before we can right a wrong is ridiculous to me, and advocating this as a strategy seems to me the luxury of those that don’t have to labor under current conditions.
Shodan: The Constitution (for example) says nothing whatever about abortion. But some old fart in a black robe found it there nonetheless, and therefore simply overrode whatever the people wanted.
That argument could be applied to birth control and interracial marriage, to name just a couple of others. Face it, the Supreme Court makes a lot of controversial decisions, because it tends to rule on controversial issues.
*And therefore the Constitution can be made to say almost literally anything. *
I think that’s an exaggeration. The “old farts in black robes” (by which I assume you mean the justices of the Supreme Court) don’t actually get to put whatever they want into the interpretation of the Constitution. They have to take into account a lot of other legislative and judicial decisions, which is why they usually don’t end up making radical changes until a lot of popular support has accumulated for them.
For example, the decision in Roe v. Wade:
So while you claim that abortion rights are an invention of “judicial activism” because they’re not explicitly in the Constitution, the people who actually ruled on it considered that fetal rights were an invention because they’re not explicitly in the Constitution. Potayto, potahto.
Judicial interpretations do change, and the changes aren’t always easy to understand, but I don’t think it’s fair to argue that the old farts are just making up whatever they want to.
All your questions are good ones. Let the states answer them as they see fit. Since the Constitution doesn’t define marriage, we have to give the States a little room to work here. If they want to call hetero marriage Blessed Marriage, interacial marriage Marriage and gay marriage Unions then they should be allowed to. Until such a time comes that the people of that state determine otherwise. I’m not shallow enough to see that there could be a few States that abuse and stretch the boundaries of the Constitution(s). But in this case, since the country is so devided, we need to give the States a little breathing room. At a future time when it becomes apparent that most people in the country have became exceptant of gay marriage and the last lingering ‘redneck’ States have failed to fall into line and satisfactory cases have been made regarding equal protection, I will accept a judicial ruling on a State level. Not this early in the game.
Stonebow, I sympathise with your point. But the sad fact is that certain issues just take forever to garner majority support. It’s just the way things are on this planet. Ruling from the bench would only create more ruling from the bench and then we’re stuck with judges with too much power and elected officials that are powerless. Whether you like it or not, it will take time and it will come around. Slavery was clearly unconstitutional and it took many a generation for it to be abolished.
I think it’s wise to remember that there are people right now, who need the benefits that accrue to marriage but are shut out of the institution.
However, such people are forgotten, sometimes, by rabid activists that should be on their side.
Gay marriage is producing a massive backlash, sufficient in many places (Virginia included) to threaten even civil union benefits. If civil unions had been the goal, and the benefits were persued as a matter of fairness, I don’t believe that the backlash would have been so severe.
I have believed for some time that gay marriage is a political impossibility right now. Civil unions, on the other hand, could be passed in many places, especially if the benefit is opened to any two people that want to establish a household and aren’t currently in a traditional marriage.
By setting their sights on marriage as the goal, I think some gay activists have imperiled the progress of the civil union. The people who need benefits right now are, sadly, caught in the middle.
On the other hand, Mr. M., maybe this is the perfect time for people like you to renew a very vocal and visible push for civil unions. People who oppose gay marriage but don’t want to think of themselves as denying civil rights to gays might be more receptive to civil unions as a band-aid on the marriage controversy.
I’m pro-marriage rights myself, but I agree with you that if everybody had the civil-union option, that would at least be an improvement over what we’ve got now.
I’m not as certain about the particular inevitable outcome as you are, but I share your concern about the long painful process we are going to go thru to get there. I say the sooner this whole thing gets decided by the SCotUS, the better. It’s going to end up there sooner or later-- might as well be sooner.
And a question for our resident lawyers: What’s taking it so long for someone to bring a case to the Supremes? This thing has “fame” written all over it.
I’m having a hard time figuring out what the court will decide, though. I’m afraid that they’ll punt, as they often do with sticky issues like that-- ie, claim that states can’t outlaw civil unions but they can’t be forced to enact SSM. And that will start the deabte all over again about what exactly constitutes a civil union.
Good morning, Shodan.
May I respectfully submit that you apparently have lost your former capacity to grasp the idea of generalizations, at which you were at one time quite competent?
Whatever the intent of the Fourteenth Amendment may have been, it specifies that rights guaranteed to citizens of the United States may not be deprived by act of individual states.
Many of those rights are guaranteed in the Constitution, the first eight amendments, and selected amendments such as the 13th, 15th, 19th, and 26th. It is arguable that others are guaranteed by the Ninth – you’ll have seen the discussions which Dewey and I have had regarding this.
Further, those things which are necessary to give social reality to the enumerated rights are held by virtually everyone, regardless of his school of constitutional construction, to be implied in the enumerated rights. For example, the Constitution merely guarantees you freedom of speech and of the press – but a law which granted you full freedom to speak, but only when no one could hear you, or the freedom to print whatever you choose – but not to distribute it – would be regarded as violative of your rights. Likewise, the only guaranteed right to gather is for the purpose of petitioning the government for redress of grievances – but the freedom to assemble for any legal purpose in a non-disruptive manner is understood to be a clear part of the First Amendment.
Mr. Justice Blackmun carefully reviewed the medical jurisprudence of his time, and found a right to terminate a pregnancy to be present. I think there are grounds for attacking the legal logic of his decision, which was IMO poorly written. But this little gimmick of attributing every decision you don’t like to “judicial activism” is getting extremely obnoxious.
For example, you have the right to “freely exercise” your religion – in your own home, in private. There is no explicit right guaranteeing you the right to attend a church, to evangelize others, etc. If I were a judge dealing with a case of people handing out tracts and inviting people to a revival, would I be indulging in judicial activism to suppose that holding that revival and distributing those tracts are an element of their free exercise right? Because it doesn’t say explicitly that they can hold revivals, or distribute tracts – just that they as individuals have the right to free exercise – which means that they arguably, on a strict construction basis, have no defensible claim to be bothering others with their free exercising. That’s “judicial activism” to claim that they have a “penumbral right” to evangelize!
Under a strict constructionist reading of the Constitution, slavery was constitutionaly, up until the 13th Amendment was passed. If slavery had been unconstitutional, there would have been no need for the 13th Amendment to begin with.
My local party leaders and my elected state officials are aware of my views on the subject.
JM: *I share your concern about the long painful process we are going to go thru to get there. I say the sooner this whole thing gets decided by the SCotUS, the better. *
No guarantees that that will put an end to the “long painful process”, though. SCotUS has already ruled in Shodan’s example, abortion rights, but that hasn’t stopped many people from continuing to get extremely hepped up about the topic one way or the other.
Except that even if civil unions were to be recognized, the first time that two men or two women were to apply for one, the backlash would be fierce. And the conservative fundamentalists would be up in arms, and the wording of the state constitution would be changed. Just like what happened in Missouri and most recently in Louisiana.
This thing will have to go before the Supremes before groups of people are no longer discriminated against. And the end result will be that churches are allowed to do whatever in hell they want, and that people will be allowed to marry legally.
And John Mace: DoMA will, IMO, go before the Supremes before these most recent abominations.
IANAL, but I believe someone must be working on it already, it’s just that on something like this, you need to have and make the kind of case that will get as far as SCotUS even deciding to actually make a decision. And it takes forever to get there even under normal circumstances.
The example you show is even optimistic: IMO this is the sort of issue where courts all the way from district to Supreme are likely to look for any technical or procedural hook on which to hang a decision or dismissal that does NOT address whether there is a fundamental right to SSM (and specially that does not involve nailing anything down “forever”).
Referendums are a TERRIBLE thing, because often the people don’t understand the implications of what they are voting on. Better to let informed legislators make the laws.
How about: sometimes they’re a good thing, and sometimes a bad thing, depending on a lot of circumstances?
And don’t be too eager to hand this over to the legislators. There are very few pols who want to go on record as supporting SSM. Don’t forget that 32 Demoratic Senators voted for the DOMA, that it passed the Senate by an 85:14 margin, and that a Democractic president signed it into law. I suspect it would have received a much higher “no” vote precentage from the general populace. It’s hard for me to imagine any state legislature voting in favor of SSM. At least not yet.