I’d hold off on that cookie until reading the thread – the only one in GQ in which scott_plaid has participated in the past week:
My favorite responses to his “GQ answer” are Hamlet’s:
…and…
I may move that the latter sentiment be adopted as the scott_plaid motto.
Well, be fair Scott “I’m shooting for a thousand posts a month” plaid may be prone to testicular pronouncements, but he’s certainly managing plenty of quantity.
I think although its arguments aren’t presented as such, they each and every one make a better case for than against recognising gay marriage, and are very irrelevant. There isn’t, in the end, a shred of argumentation here that makes a case against gay marriage, that can’t be made against any other important historical event, including giving all men the right to vote, giving women the right to vote, abolishing slavery and so on. And look at the benefits this has brought us eventually.
More importantly, in the case of gay marriage, we are discussing a relatively insignificant change, in the context of all the other changes the institution has been through that have altered its significance far, far beyond what recognising the right for two men or two women, gay or straight, to receive the benefits of marriage. This is not a change, but a rectification of something that was, basically, overlooked.
Quite simply put, the true benefits of the legal rights and duties currently associated with marriage, as recognised by those who have considered them, apply equally to two men or two women as they do to two persons of different sex.
That’s not really a valid analogy, unless you can find a religion that requires a minimum of three for a marriage (since only in that case would the religion’s marriages be flat-out precluded).
This is to say “We do not discriminate against religions that practice polygamy, so long as their adherents do not actually contract any polygamous marriages” - which doesn’t sound that far from saying that gays have the same right to marry an opposite-sex partner as straights do.
You might be on pretty solid ground with your legal arguments, but you start to lose coherence when you move to suggesting that gays have it just as good as the rest of us. You analogy of the polygamous religion is silly.
If i practice a religion that allows polygamy, it is true that i am prevented from marrying as many people as i might like. But it is also true that i can at least marry at one person that i love and gain all the privileges attendant on a regular marriage. The gay man or woman has not even this option. The polygamous person has exactly the same rights with respect to marriage as every other heterosexual person—the right to marry one person of his or her choice. But straight people don’t have that right, and the only way they can take advantage of the institution of marriage in our society is to reject their sexuality and take a partner of the opposite sex, in defiance of their own sexuality. That’s pretty second-class opportunities, as far as i can see.
Also, your argument about polygamy assumes that there’s actually something wrong with it. Personally, i think that if three or more consenting adults, of any sex, all want to marry each other, then why should you or i give a fuck about it?
Actually, my argument doesn’t assume there’s anything wrong with polygamy. As a policy matter, I tend to agree with you, and I would not be opposed to the legislative repeal of bigamy statutes, at least in the abstract.
The question, as always, isn’t what I’d prefer as a policy matter; it’s what policy choices are actually forbidden by the constitution. I think it reasonably clear that the constitution is silent on the issue of polygamy, and that being the case, the states are free to outlaw it or allow it as they see fit. Ditto for same-sex marriages.
As for the rest of your and Steve MB’s respective replies, what **Macalandra **said.
And to follow up, Oregon’s Supreme Court has now upheld this action, finding that even before ballot 36, state law mandated marriage in Oregon was to be recognized only between one man and one woman, and that the passage of ballot measure 36 further cemented that action. All of the marriage licenses issued to same-sex couples in Oregon were found to be void, ab initio.
I’d just like to note that there’s a large empty spot in my heart which, when we start discussing things like what happened in the quoted post, fills with grrr and makes me think very bad thoughts about the neanderthalic troglodytes who vote against gay marriage every time it comes up.
Kind of makes me wish evolution would hurry up and get rid of the dinosaurs, you know…
You know I too once thought this. That all opposed to SSM had to be dinosaurs or fundies of some kind. But now im just so sure. The number of states baning SSM is growing alarmingly. I find it hard to believe that everyone voting for the ban in those states are fundies and dinosaurs. Which means that everyday “silent majority” types are also voting for the ban. And that bothes me more than anything else.
I can see where a fundie gets their ire, I dont understand it, but I see where it comes from. But where do Harry and Sally Homeowner get their objections? This I would like to know.
I don’t see why this is such a surprise. How many politicians, even soially liberal politicians, have come out in favor of SSM?
I don’t think Harry and Sally homeowner, who don’t think gay sex is a sin, can actulally undertand that gay relationships are of the same nature as straight relationships.
And I believe that the Massachusetts decision hurt the cause of gay marriage in this country, by forcing the issue from the bench, rather than from the legislature. I am convinced that the massive swell of anti-SSM legislation is due in part to backlash from that decision.
In other words, people are voting not so much to stop the evil queers from marrying, but to stop such a change from being forced on them by a judge.
This is a terrible outcome, because ultimately, permitting same-sex marriage is the right thing for a state to do.
You know, I do see the logic in what you’re saying. But allow me, without the rancor of some of our recent exchanges, to ask you this, Rick:
I’m aware that there are reasons for feeling Loving v. Virginia to be jurisprudentially wrong, in identifying the “right to marry” as a fundamental, Constitutionally protected right, when the document is itself silent on the subject – and that someone of your or Dewey’s constitutional-law philosophy can support the result of that decision without approving of the means taken to get there.
Would it be your contention, given the above, that 30 years ago the Lovings and other Virginia couples who happened to be of different races should not have married and challenged the Virginia antimiscegenation law in court, but rather remained unmarried and lobbied the Legislature to repeal the antimiscegenation law, not marrying until they did?
To me, that is almost a precise parallel to the circumstances surrounding gay marriage today. And I’d be interested in seeing your analysis of the situation as it existed then, and the proper course to be taken in your view. [And, given that your problem with gay-marriage court decisions is process-based rather than results-oriented, I’d ask that if you do respond, no one flame you for your answer, whether or not we’re in the Pit. You’re talking strategy here, and it might behoove those of us on the opposite side of the constitutional-law argument to listen.]
I am sure that Bricker will say this is a bad analogy, but I am sure that the Stonewall riots hurt gay rights, as did the taking over TV Talk shows, in the short run. Oh, and I can always bringing up disruptive civil rights activists, unless I can’t do to too many people claiming I should try and compare them.
I’ll be interested in the analysis as well.
The Virginia Legislature is about as conservative an institution as you’re likely to find. Hell, even Democrats today in the GA are pretty damn conservative (with certain exceptions). 30 years ago the GA was dominated by the Democratic Party, but these were all the last vestiges of the Byrd machine and they could have just as easily passed for Republicans in nearly any other context. To be a Republican in VA during this time, you had to be pretty rock ribbed.
Had the Lovings tried to lobby the VA legislature of 30 years ago they would have met a very cold, stony silence.
Polycarp: Hasn’t **Bricker **has been clear that the 14th amendment was enacted in order to forbid discrimination on racial grounds? Thus, a judicial review striking down anti-miscegenation laws would be appropriate and constitutionally valid. IOW, the constitution is NOT silent on matters of racial discrimination.
If he sticks to strategy, and doesn’t insult other peoples views, as well as if you, Polycarp, signals if/when it is appropriate to pick apart his examples, then yes, I’m in. When and if the time comes to pick apart his case, that I will refrain from insulting him. Should he start being condescending, I will open up a new thread pitting him, rather then express my feelings in this pit thread.
Sorry, Bricker, but that’s absolute crap. Most people don’t care about strict constructionalism. I doubt they’d even recognize the phrase. This backlash came about because people realized there was an actual chance of gays getting the right to marry, and that was intolerable to them. The fact that it came through the courts and not through the legislature is immaterial. If California or Washington state had managed to pass a law opening marriage to homosexuals, we’d be seeing exactly the same backlash in Ohio and Virginia. I think this has been demonstrated pretty clearly by the Terry Schiavo case, where the same group of people who are so outraged by “activist judges” legalizing gay marriage were driven to new heights of frothing irrationality when judges refused to interpret the law to suit them, and instead ruled directly off of the letter of the law and legal precedent.
I can see your point here, but I do think **Bricker **is right in that the prcoess has been accelerated due to the fear of judicial rulings. After all, if SSM had a chance of passing thru the legisltative process, then anti-SSM legislation and amendments would NOT pass. However, I have no doubt that if the legislature of a given state legalized SSM, then most of the anti-SSM crowd would be appealing to the jduciary to overturn those laws.
You are right in that very few people are consistent about their vews of the consitution and how it shoudl be interpreted. You should note, though, that there are very few self described constructionists out there. The more common school of thought is originalism, but it’s easy to mistakte the two-- I have on several occasions. I would call myself an originalist, and I think **Bricker **would as well. And, IIRC, Scalia and Thomas refer to themselves as originalists, not constructionists.
Not to be a smart-ass about this, John, but my impression is that both Rick and Dewey are largely textualists, although adhering to a relatively narrow construction of the text. And I may be in error in believing this; I’ll let them correct me if that is the case.
But an originalist should be a fairly loose constructionist, owing to the fact that the original document and the Bill of Rights were authored and adopted by men who largely believed in the Natural Law and droits de l’homme concepts which are today largely in the perview of “living Constitutionalists.”
However, while your point about the underlying purpose of the Fourteenth may have a large bearing on the question, I very much want to see what Rick, as a thoughtful man of conservative political views and, as he himself notes, a tendency to wish to seek legislative rather than judicial relief for a social ill whenever possible, would deal with the applicability of Loving. It’s possible that your simple explanation of Fourteenth-originalist racial discrimination is his answer. But that doesn’t correspond to the principle that he has been arguing. It’s not that he is adamantly opposed to a school of construction different than his own, it’s that his philosophy is to advocate seeking legislative rather than judicial relief. And right there is the crux of the question: clearly the Virginia General Assembly would not have granted the Lovings relief, so how might they proceed? I hope to learn from how he responds, since he and people who think as he does are the ones that advocates like myself must be winning over, if there is to be any success in resolving this issue.