[QUOTE=Northern Piper]
This doesn’t sound right, on way too many levels. I think you’re mistaken.
[/QUOTE]
Okay. I’ve tried to Google quite a bit to see how Bork and Loving were “related”. But there’s just waaay too many pages that come up that relate Loving to gay marriage to conservative judges. But him and Loving or a similar case was an issue during his nomination.
[QUOTE=jtgain]
I think it is one more example of the philosophy that just because a law is stupid doesn’t mean it is unconstitutional..
[/QUOTE]
Indeed, keeping it carefully at arms length, slavery was apparently constitutional until the passage of the thirteenth amendment.
Eleven months ago was the 40th anniversary of the Supreme Court dfecision in Loving v. Virginia. Somebody got the idea of asking Mrs. Loving for a statement, and it’s a pretty powerful one:
===============
jtgain, it’s probably out of place in this thread, but, as an Originzalist, do you seriously believe that the Founding Fathers did not think people had a right to get married? Remember that state regulation and licensing are a 20th century development. My grandparents ere the last couple legally married without a license in our county and I think in New York State, on December 31, 1907. Even if you don’t see that as an affirmative right, would you accept that it is a matter of the liberty to act in manners not prohibited by law? Your “failure to find it in the text or history of the constitution” sounds like you’re approaching it from a Statist view that the people have only those rights which the state condescends to grant them. I’d love to see this discussion continued elsewhere, if you’re interested.
[QUOTE=Polycarp]
Eleven months ago was the 40th anniversary of the Supreme Court dfecision in Loving v. Virginia. Somebody got the idea of asking Mrs. Loving for a statement, and it’s a pretty powerful one:
[/QUOTE]
Very. Thank you for that.
It will be easy for me to remember the date of that decision, as it’s also my mother’s birthday.
[QUOTE=jtgain]
( Deep breath) I think that if you approach the issue from an originalist approach, there is little in the text or history of the constitution that would support the Loving decision.
[/QUOTE]
There’s little in the text or history of the Constitution regarding judicial review, and yet Marbury v. Madison seems to have held up alright.
Anyway, there is something in the Constitution that covers this, namely the Equal Protection Clause (of the 14th Amendment), which the Loving decision was based on.
[QUOTE=Polycarp]
Eleven months ago was the 40th anniversary of the Supreme Court dfecision in Loving v. Virginia. Somebody got the idea of asking Mrs. Loving for a statement, and it’s a pretty powerful one:
[/QUOTE]
And she included gay people? This Black, Southern, woman of my mother’s generation supported equality of marriage for gays and lesbians? She just totally went way up in my estimation!*
*I’m a gay man who finds it difficult to imagine himself ever getting married, so the gay marriage issue isn’t quite as…umm, personal for me at this time in my life (it was a long time ago, though) as it is for others, but still, injustice is injustice, and I’m glad she was able to see that and indicate her support of marriage for all. Really, really cool.
[QUOTE=Li’l Pluck]
And she included gay people? This Black, Southern, woman of my mother’s generation supported equality of marriage for gays and lesbians?
[/QUOTE]
The above is apparently from June, 2007. Were you referring to another?
Thanks,
CP
[QUOTE=Really Not All That Bright]
Anyway, there is something in the Constitution that covers this, namely the Equal Protection Clause (of the 14th Amendment), which the Loving decision was based on.
[/QUOTE]
Except, that’s what he’s questioning. Does the 14th Amendment requires states to allow interracial marriage? If it does, then why did the Congress that passed it not do anything about the anti-miscegeneration laws already existing?
[QUOTE=carnivorousplant]
The above is apparently from June, 2007. Were you referring to another?
Thanks,
CP
[/QUOTE]
I’m not sure I understand your question. Or did you misunderstand what I’d written?
Let me see if I can take a stab at it, though:
I come from a Black, Southern family, and I don’t know if I could imagine my mother, who is just a few years younger than Mrs. Loving was, publicly supporting gay marriage (part of me wonders, on the rare occasion that I care to concern myself with it, if she still prays for me to turn away from my “sin”), so I was just remarking how cool it was that Mrs. Loving felt as she apparently did, and had no qualms about saying so.
Did I get your question right? Please let me know if I didn’t.
[QUOTE=Li’l Pluck]
I was just remarking how cool it was that Mrs. Loving felt as she apparently did, and had no qualms about saying so.
Did I get your question right? Please let me know if I didn’t.
[/QUOTE]
I meant to gently suggest that she may not have felt that way about Gay folks forty years ago, and wonder if there was a quote like that from the 60’s.
The original judge’s ruling, if correctly quoted (and we have every reason to believe it is) is filled with reversible errors, the first being his contention that a law of the Commonwealth of Virginia appears to be based on a religious principle, contrary to the establishment clause of the First Amendment. (Obviously, I’m no law scholar, but I think that’s right.)
He also contradicts history by assuming that the races were placed on separate continents because they were never meant to mingle; that presupposes that Europeans should never have come to North America, which was populated by asiatic natives, and that Africans should never have been brought to the Americas as slaves. It appears to me to be the ravings of a bigot who knew he was going to be reversed but wanted to get his licks in before the inevitable mongrelization began.
I can only imagine the discussion that took place during that SCOTUS deliberation: “Good Lord, will *somebody * find precedent so we can get rid of this stinker!?”
[QUOTE=Polycarp]
jtgain, it’s probably out of place in this thread, but, as an Originzalist, do you seriously believe that the Founding Fathers did not think people had a right to get married? Remember that state regulation and licensing are a 20th century development. My grandparents ere the last couple legally married without a license in our county and I think in New York State, on December 31, 1907. Even if you don’t see that as an affirmative right, would you accept that it is a matter of the liberty to act in manners not prohibited by law? Your “failure to find it in the text or history of the constitution” sounds like you’re approaching it from a Statist view that the people have only those rights which the state condescends to grant them. I’d love to see this discussion continued elsewhere, if you’re interested.
[/QUOTE]
I’ll try to take these one by one. Did the founders think that people had a right to interracial marriage? Absolutely not. You would be hard pressed to find any argument in that time period.
Marriages, at least in the state of Virginia, were recorded back to the 1700s. I’m not sure what the licensing requirements were, but they did serve a state function. Do you think a town clerk in 1810 would have registered a gay marriage, for example? License or not?
Of course I don’t take that Statist view. But, like Scalia, when you try to determine whether or not a certain thing is a fundamental right, I feel that you need to look at history and culture as a guide.
Take the racial component out of it because I feel that injects emotion into the debate where it doesn’t belong. Imagine conduct that has been prohibited by most societies since ancient times and continues to be prohibited by most societies today, although a recent view has cropped up thinking that such conduct is okay.
Is it legitimate to look at our 200 year old constitution and say that such conduct is now an affirmative right buried in it? I think not, and also it is an incorrect means to an end.
[QUOTE=jtgain]
Is it legitimate to look at our 200 year old constitution and say that such conduct is now an affirmative right buried in it? I think not, and also it is an incorrect means to an end.
[/QUOTE]
I don’t see how its an affirmative right. Its clearly a negative right – the right to not have the government intrude overly on a matter that precedes the state.
It’s not, “the right to marry interracially.” Rather the “freedom to marry whomever, without gov’t excessive regulation.”
[QUOTE=jtgain]
Take the racial component out of it because I feel that injects emotion into the debate where it doesn’t belong. Imagine conduct that has been prohibited by most societies since ancient times and continues to be prohibited by most societies today, although a recent view has cropped up thinking that such conduct is okay.
[/QUOTE]
It’s all well and good to remove emotion from the debate, but… what ancient societies prohibited interracial marriage? Alexander the Great married (or married his generals off to) women from all sorts of ethnic groups. Marriages between Romans and Nubians were certainly not unknown. Englishmen of the 18th and 19th centuries married lots of Indian women, and probably African ones too.
In any case, the rationale for the original ruling is your problem. One of the tricky things about having the Constitution (or the Bill of Rights, at least) is that judges can’t go around ruling based on God’s will anymore.
Missed edit window.
Not necessarily, but that depends on your point of view. You’re an originalist, so you look for those things. Others, though, recognise that attempting to reconstruct the original intent of an amendment (or portion of the main text) is pointless because our records are incomplete at best. Moreover, if the intent isn’t clear from the text, tough shit.
If I, as a state legislator in Florida, drafted a bill intended to increase the state minimum wage, get it passed, and then find out that because it was worded incorrectly I’ve actually decreased it, the courts aren’t going to care.
If you want a law to fulfil your own narrow purpose, write it that way.
[QUOTE=carnivorousplant]
I meant to gently suggest that she may not have felt that way about Gay folks forty years ago, and wonder if there was a quote like that from the 60’s.
[/QUOTE]
No need to be gentle, because what you suggest is certainly possible. Maybe even likely, given the tenor of the times.
I doubt, though, that such a quote exists from 40 years ago since gay marriage wasn’t as likely to be thought of, much less uttered, as a viable possibility then as it is today.
[QUOTE=Hello Again]
I don’t see how its an affirmative right. Its clearly a negative right – the right to not have the government intrude overly on a matter that precedes the state.
It’s not, “the right to marry interracially.” Rather the “freedom to marry whomever, without gov’t excessive regulation.”
[/QUOTE]
Again, where does this “freedom to marry whomever” come from? It is not in the text of the constitution, nor is it an historical concept that is understood to be implicit in the concept of liberty.
It is an aspect that in regards to interracial marriage has gained acceptance in the last 40 years, and in regards to gay marriage in the last 10 years.
In other words, these are new concepts, and it could very well be argued that they are good, forward looking changes that have been made to our thinking. However, they do not then take the next step and become part of our founding document without an amenment as prescribed by Article V.
Does anyone disagree? Do you think George Washington or James Madison would have thought it a fundamental right to miscegenation? I’ll bet you couldn’t find one founder who thought it should be legal in his home state, let alone mandated nationwide.
[QUOTE=Really Not All That Bright]
If I, as a state legislator in Florida, drafted a bill intended to increase the state minimum wage, get it passed, and then find out that because it was worded incorrectly I’ve actually decreased it, the courts aren’t going to care.
If you want a law to fulfil your own narrow purpose, write it that way.
[/QUOTE]
Assuming there is no ambiguity in the law, you would be correct.
But if there were two possible interpretations of your law, one interpretation raising the minimum wage, and the other lowering it, then the courts would certainly look back at the debates in the legislature to see what the drafters meant.
And to your point about ancient cultures and interracial marriage, that was my fault. I was about to mention sodomy laws, but lost my train of thought.
Anyways, when you respond, I’ll start a new thread so as not to further hijack this one. But back on point, even though I disagree with the strict legal outcome of the case, I too mark Mrs. Loving’s passing in the great result her case achieved.
[QUOTE=jtgain]
I’ll try to take these one by one. Did the founders think that people had a right to interracial marriage? Absolutely not. You would be hard pressed to find any argument in that time period.
Marriages, at least in the state of Virginia, were recorded back to the 1700s. I’m not sure what the licensing requirements were, but they did serve a state function. Do you think a town clerk in 1810 would have registered a gay marriage, for example? License or not?
[/quote]
Well, first, I agree that the Constitution does not contain an explicit guarantee of a right to contract an interracial marriage, or a gay marriage, or indeed any marriage.
But also the Constitution does not contain an explicit guarantee of your right to post the words you just posted. Rather, it guarantees you freedom of speech in broad terms, and that’s one specific example. Now: can Congress or the states prohibit marriage? Period: No new marriages may be contracted; all existing marriages are voided? Is this within their powers? If not, and I’d be inclined to say it is not (and can make a case for this if you like), then at least some people have a right to contract marriages. And if that’s the case, then the Equal Protection Clause says that anyone has the right to contract marriage – unless there is some legally valid reason for the state to prohibit specific sorts of marriages (a lawyer can explain the degrees of scrutiny on “legally valid reason”). For example, a law prohibiting a 13-year-old from contracting a marriage is validated by the state’s longstanding interest in protecting the young from the consequences of youthful impulsiveness. But absent that sort of overweening reason, a state law restricting a class of people from marrying another class of people is going to fall afoul of the Equal Protection Clause.
Second point: There is a major distinction between “register” and “license.” The state doesn’t give you a property owner’s license and say you cannot own land within the state without one. It does say you cannot operate a motor vehicle without a driver’s license. It makes no judgment on your mental, physical, emotional, or ethical capacity to properly use the land you own – it merely registers that you inherited or bought it. It does vouch that you have passed minimum qualifications to properly operate a motor vehicle before issuing you a license.
If a couple contracts marriage and then places it on record, with a registrar or whomever, they’re simply ensuring there’s a public record of their marriage for any old biddy who wants to check. Ownership of land does not depend on whether you’ve filed a copy of a deed at the county courthouse – if you got killed between the closing and the courthouse, your estate owns that land.
Now, distinguish between a Registry of Marriages and a Marriage License Office.
Catch the distinction I’m making? Mr. and Mrs. Loving had a right to contract marriage, not because there’s a penumbral “constitutional right to interracial marriages”, but because there’s a right to marry, and racial difference is one of the suspect categories under the Equal Protection Clause.
What conduct? Contracting a marriage? Living together as spouses thereafter? If you are talking gay sex, please convey my deepest sympathies to your wife,who probably thought she was getting into a real loving marriage, not just a license to have sex. And if that’s not why you married, why in the world would you accuse a gay couple of having that as their motive for marrying?
[QUOTE=Polycarp]
But absent that sort of overweening reason, a state law restricting a class of people from marrying another class of people is going to fall afoul of the Equal Protection Clause.
[/QUOTE]
The rationale behind the antimiscegeneration statute was laid out in the 1953 VA Court of Appeals case, Naim v Naim, saying that it was within the “power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens.”, and that “the obliteration of racial pride” and “corruption of blood” would “weaken or destroy the quality of its citizenship”
I think you are showing exactly why I believe that Christians should refuse to allow state sanction of marriage. It’s a religious matter, over which the state should have no authority.
Conception should require a license.
Tris