Pat Robertson claims federal judges are greater threat than al Qaeda/Nazi Germany

[Bricker]

@elucidator

Correction noted. You are substantially correct in that the Mass court did not rely on a semantic quibble. Point of fact, more power to them. I underestimated their courage.

Thanks for the acknowledgement.

That is precisely the function they are assigned, yes? It is their job, not yours, not mine, to decide what is supported by the text within the four corners of the document. Do you suggest that the pizza delivery boy is an “activist” pizza delivery boy simply because he brings the pizza?

Well… yes, and no. Yes, it’s their job, and no, I think they would acknowledge that their decision is not based directly on the text within the boundries of the document. I am sure that they would say that they view the state constitution as a living, evolving document, and that it is not necessary for their decision to find support directly from the text of the document. I don’t believe they would accept “activist” as a label, but I’m sure they would readily acknowledge their belief that the text of the constitution alone does not constitute the beginning, middle, and end of the meaning therein.

If I order a pepperoni and anchovy pizza, and the pizza boy brings me spinach on whole-grain crust because pepperoni is too high in fat to be healthy, and anchovy are living creatures for whom being slaughtered is a cruel fate, and since the job of a pizza delivery boy is not simply to deliver pizza, but to take responsibility for his role in the health of his customers and his place as a ethical inhabitant of the planet… then, yes, I’d call him an “activist” pizza delivery boy.

[Diogenes_the_Cynic]

Can we agree that the Mass. decision was a ruling on the constitutionality of an existing law and not a creation of a new law? The fact that you disagree with how they interpret their own state constitution does not change the fact that interpreting their state constitution is all they did. They did not write a new law. They struck one down because it was unconstitutional (and THEY are the ones who get to decide what is constitutional in the state of Massachusetts).

It seems to me like all you’re doing is proving the perception that an “activist” decision is one I disagree with.

[Bricker]

@Diogenes the Cynic

Can we agree that the Mass. decision was a ruling on the constitutionality of an existing law and not a creation of a new law? The fact that you disagree with how they interpret their own state constitution does not change the fact that interpreting their state constitution is all they did. They did not write a new law. They struck one down because it was unconstitutional (and THEY are the ones who get to decide what is constitutional in the state of Massachusetts).

It seems to me like all you’re doing is proving the perception that an “activist” decision is one I disagree with.

If they simply struck down a law, that would mean that no one in Massachusetts could get married… that they had struck down the opposite-sex only law, leaving nothing. They did more – they wrote a new law: that marriage must apply to same-sex couples as well as opposite-sex couples.

[SteveG1]

@LouisB

He claimed, along with Jerry Falwell, that it was God’s punishment because the USA allowed homosexuality to flourish. Every time I hear another piece of garbage spouted by this jerk I want to hunt him down and do him some physical harm.

I’m glad you said that, it means I’m not the only one who feels that way.

[Gorsnak]

I find it odd that Bricker and Dewey are both claiming that the Mass SC was inventing rights in Goodridge. The decision makes it very clear that the question is one of whether the existing marriage statutes violated the guarantees to equal treatment under the law made by the Mass Constitution. The right to equality before the law is hardly a new right. Requiring equality with regards to sexual orientation in the realm of civil marriage might be a new application of that right, but the right itself is certainly not new. Moreover, the majority decision proceeds in exactly the fashion recommended by our local strict constructionists in any number of threads on this issue. It takes the issue to be one of equal protection, it proceeds with a rational basis test, and finds that the state does not fails to meet the requirements of that test. Many times both Bricker and Dewey have said that this is precisely the way the courts should analyze the situation.

What makes Goodridge “activist”, then, must be the fact that the MSC thinks that the rational basis test isn’t automatically passed by any statute that isn’t clearly insane. This, however, seems extremely sketchy grounds for drawing the line between activist and not activist.

I am sure they will both respond by asking rhetorically whether the legislators that passed the equal protection amendment intended to be mandating same-sex marriages, assuming the answer to this question to be no. I agree that the answer to the rhetorical question would be no, but I don’t find this argument persuasive in the least.

Suppose we travelled back in time to the passing of Article CVI (if memory serves, this was the early 70’s), and we sit down for a chat with a Massachusetts legislator. Our conversation might go something like this:

Us: So, by passing this equal protection amendment, do you mean to be requiring the state to recognize same-sex marriage?
Him: What the hell are you talking about?
Us: I mean, if two homosexual men (or women) wished to marry each other, should the state be required to recognize that marriage?
Him: Absolutely not!
Us: But this amendment requires that the state have a rational basis to violate persons’ equality before the law, doesn’t it?
Him: Of course.
Us: But doesn’t that mandate state recognition of same-sex marriages?
Him: Don’t be ridiculous. Homosexuality is a psychological disorder. The state’s mandate to promote public health is all the rational basis needed to discriminate between same-sex and opposite-sex couples with regards to marriage.

One might also imagine that our hypothetical legislator might object on the basis of straighforward bigotry. It seems clear to me that the intent of the legislators was to require equal treatment before the law absent rational basis to do otherwise. It seems equally clear to me that the legislators would have assumed that this didn’t require recognition of same-sex marriage based on false views about the nature of homosexuality which, had they been true, would have given the state a rational basis to deny equal treatment.

I see no reason to understand the intent of the legislators through the filter of their historic misconceptions of reality, rather than understanding their intent based on the principles they were setting in place, to be applied using an up to date understanding of reality.

Certainly it is possible to disagree with this analysis. Asserting that it is “activist” in any interesting way is going to require an actual argument.

[Bricker]

Prohibiting same-sex marriage rationally furthers the Legislature’s legitimate interest in safeguarding the primary purpose of marriage, procreation. The Legislature may rationally limit marriage to opposite-sex couples because those couples are theoretically capable of procreation, they do not rely on inherently more cumbersome noncoital means of reproduction, and they are more likely than same-sex couples to have children, or more children.

Now, you may not agree with those goals. But IF those are the goals of the legislature, how can you say they are irrational?

What makes Goodridge “activist”, then, must be the fact that the MSC thinks that the rational basis test isn’t automatically passed by any statute that isn’t clearly insane.

Um… yes. That’s what the rational basis test is… “Is there a rational basis, however slight, that would support the legislature’s action?” It is not an invitation to the court to substitute their own judgement for the legislature’s.

The first paragraph of this post is lifted from the original trial court’s opinion upholding the law.

[Diogenes_the_Cynic]

@Bricker

Prohibiting same-sex marriage rationally furthers the Legislature’s legitimate interest in safeguarding the primary purpose of marriage, procreation. The Legislature may rationally limit marriage to opposite-sex couples because those couples are theoretically capable of procreation, they do not rely on inherently more cumbersome noncoital means of reproduction, and they are more likely than same-sex couples to have children, or more children.

Now, you may not agree with those goals. But IF those are the goals of the legislature, how can you say they are irrational?

Cite that that the massachusetts legislature has ever defined procreation as the primary purpose of marriage?

Doesn’t this let out infertile couples or couples who past the age of childbirth? Does it let out people who don’t want children? What about same-sex couple who do have natural children of their own or adopt.

This “procreation” thing is complete bullshit, IMO.

[Dewey_Cheatem_Undhow]

@Diogenes the Cynic

@Dewey Cheatem Undhow

If the law doesn’t actually violate their state constitution, it is activist to strike down that law.

But the law DID violate their state constitution. That was the ruling of the state supreme court and theirs is the opinion which is binding.

Dio, are you truly this fond of circular reasoning?

Here is what you are saying: the court was correct in its decision because that was the decision it made.

Do I really need to point out the fallacy in this line of thinking?

Yes, as a matter of pure political power, the highest court can say “black is white” and have that be enforceable as a matter of law. That doesn’t mean that black actually is white.

@Diogenes the Cynic

No they didn’t. All they did was uphold what the constitution already stated.

You can disagree with their interpretation, but as a matter of procedural fact, that is what happened. The state supreme court reviewed a law and found it violated their own state constitution. It is not “dishonest” for me to say so.

The court, in doing so, effectively crafted a new constitutional provision. They did in fact, in Bricker’s formulation, “change the law,” and it is indeed spectacularly dishonest of you to pretend you don’t understand what he was saying.

[Dewey_Cheatem_Undhow]

@Diogenes the Cynic

Cite that that the massachusetts legislature has ever defined procreation as the primary purpose of marriage?

Cite for the proposition that an explicit legislative statement is necessary as proof that procreation is the primary purpose of marriage?

I mean, I can think of serveral reasons for outlawing murder, but I doubt very seriously you’ll find explicit legislative pronouncements that any of those reasons are central to making it a crime.

But I’ll tell you what – why don’t you actually read Goodridge? It’s obvious you haven’t, since you consistently misrepresent what it actually says. And while you’re reading, continue on to the dissent, which provides quite a bit of support for the procreation proposition.

You don’t have to agree with that proposition – I don’t believe it completely myself – but there is enough there to meet rational basis. Or ought to be, if the rational basis test was applied in its ordinary form.

[Gorsnak]

@Bricker

The first paragraph of this post is lifted from the original trial court’s opinion upholding the law.

Except that it’s complete bullshit, as the Supreme Court noted. “Theoretically capable of procreation”?!? WTF is that? Lots of heterosexual couples are not theoretically capable of procreation, hence the entire argument fails.

Anyways, I see you appear to be saying that the difference between activist and not activist actually is applying the rational basis test in a slightly different way. How this can be I haven’t a clue, as the rational basis test appears nowhere in any constitutional documents. It’s entirely the creation of the courts.

In any event, the disagreement here seems much more analogous to Kyllo than it does to Lockner. The question is whether the statute serves “a legitimate purpose in a rational way”, and Bricker disagrees with the conclusion of the Massachusetts Supreme Court. That seems more like the question of whether IR scans constitute searches than it seems like the question of whether a right to contract is implicit in the text of the constitution.

I fully respect that reasonable people can disagree over how this matter should be decided. I don’t understand how it’s reasonable to think that the Massachusetts Supreme Court was activist in making their decision. They weren’t making shit up. They just disagree with you about what constitutes a rational basis.

[Gorsnak]

@Dewey Cheatem Undhow

Cite for the proposition that an explicit legislative statement is necessary as proof that procreation is the primary purpose of marriage?

I mean, I can think of serveral reasons for outlawing murder, but I doubt very seriously you’ll find explicit legislative pronouncements that any of those reasons are central to making it a crime.

You don’t have to agree with that proposition – I don’t believe it completely myself – but there is enough there to meet rational basis. Or ought to be, if the rational basis test was applied in its ordinary form.

Except that the MSC noted that it’s explicit in the legal history of the state that procreation is not the primary purpose of marriage.

@Massachusetts Supreme Court

The judge in the Superior Court endorsed the first rationale, holding that “the state’s interest in regulating marriage is based on the traditional concept that marriage’s primary purpose is procreation.” This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) (“The consummation of a marriage by coition is not necessary to its validity”).[22] People who cannot stir from their deathbed may marry. See G. L. c. 207, § 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.[23]

Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual.[24] If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as “the source of a fundamental right to marry,” post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

A rational person cannot look at the history of jurisprudence related to marriage and conclude that the primary purpose is procreation. Or so the court held. You might disagree, but I think they’ve got a pretty strong case for their viewpoint. Perhaps you can provide a raft of precedents that contradicts the collection of precedents the court cited?

[Diogenes_the_Cynic]

Hey, if you’re going to cite “protecting procreation” as the rational basis for discriminating against homos, it’s only fair to ask when the fuck procreation was ever defined as the reason for marriage. It’s also fair to ask why the fuck that same reasoning can’t be used to prohibit infertile couples from getting married or couples who declare they won’t have children. If a married man gets a vasectomy does that frustrate the intent of the law.

I’m calling bull and shit on the procreation argument. It’s just an excuse. A lame * ad hoc*, pulled-from-the-ass “state interest” which was never defined as such before and which would still be unequally enforced in any case.

And the decsision did not create new law, no matter how many times conservatives scream it. It just removed a discrimanatory prhibition in the old law. It’s no different than if the court had said the legislature had no right to ban interracial marriage in a state for which interracial marriage had always been illegal. It does not grant anything new, it just states that something has hertofore been unfairly taken away.

I have read Goodrich, by the way, but not recently. I read the whole thing at the time it came down and I was not impressed by the dissent. It sounded like special pleading to me.

[Bricker]

OK, thought experiment.

Let’s assume that the MA legislature passes a new law, explictly finding that their primary purpose in licensing marriage is to encourage procreation.

Would the legislature’s restriction of marriage to opposite-sex couples then pass the rational basis test?

[Dewey_Cheatem_Undhow]

@Gorsnak

Except that the MSC noted that it’s explicit in the legal history of the state that procreation is not the primary purpose of marriage.

Well, not quite. They note that procreation, or possible procreation, is not a strict requirement for marriage. Which isn’t that surprising: laws are frequently under- or over-inclusive with regard to their primary purpose. Setting the driving age at 16 is a measure designed to prevent immature drivers with poor judgment from driving, even though some 14 or 15 year olds might be mature enough to handle the responsibilities of driving, and even though many adults are assuredly not mature enough to handle that same responsibility.

They also note that Massachuetts permits and sometimes facilitates procreation outside of marriage, which is to my mind irrelevant: the state can take the position that marriage is the ideal for child-rearing, but still promote child-rearing in other good-but-not-perfect situations.

And again, FTR, let me say I’m not really persuaded by the procreation argument. I do, however, think it passes the admittedly very low bar presented by the traditional rational basis test.

A rational person cannot look at the history of jurisprudence related to marriage and conclude that the primary purpose is procreation.

So the three dissenters are irrational people then?

Perhaps you can provide a raft of precedents that contradicts the collection of precedents the court cited?

Read the dissent. Part C, specifically.

[Diogenes_the_Cynic]

@Bricker

OK, thought experiment.

Let’s assume that the MA legislature passes a new law, explictly finding that their primary purpose in licensing marriage is to encourage procreation.

Would the legislature’s restriction of marriage to opposite-sex couples then pass the rational basis test?

Not unless it restricted it to couples who were a.) fertile and b.) actively trying to conceive. Part of the reason the procreation argument doesn’t work is that no consideration whatever is given either to fertility or to willingness to procreate when marriage licenses are given. A woman who has had a hysterectomy has no more theoretical chance of becoming pregnant than I do. Why should she get a marriage license?

[Gorsnak]

Look, the question isn’t whether there’s an argument to be made that the MSC made the wrong decision. I freely grant that there is such an argument. I don’t find it compelling, myself, but it’s there, and I understand that you do find it compelling. Fine.

The issue here is one of judicial activism. You have to show not only that the MSC made the wrong decision, but that its decision is unsupportable. I don’t think you can make that case. The Mass Constitution requires equality under the law, and the SC found that the marriage statute violated that requirement (as it clearly does) and that there was no justification for doing so (perhaps, perhaps not). This isn’t, as I said before, just making shit up. It’s applying the plain text of the law in a way slightly different from how you think it should be applied. That’s not activism.

[Dewey_Cheatem_Undhow]

@Diogenes the Cynic

Hey, if you’re going to cite “protecting procreation” as the rational basis for discriminating against homos, it’s only fair to ask when the fuck procreation was ever defined as the reason for marriage. It’s also fair to ask why the fuck that same reasoning can’t be used to prohibit infertile couples from getting married or couples who declare they won’t have children. If a married man gets a vasectomy does that frustrate the intent of the law.

See my post above re over- and under-inclusiveness.

@Diogenes the Cynic

I’m calling bull and shit on the procreation argument. It’s just an excuse. A lame * ad hoc*, pulled-from-the-ass “state interest” which was never defined as such before and which would still be unequally enforced in any case.

Spare me the pejoratives. Are you saying that a law must be perfectly inclusive in reaching its primary purpose in order for that purpose to be considered valid?

@Diogenes the Cynic

And the decsision did not create new law, no matter how many times conservatives scream it. It just removed a discrimanatory prhibition in the old law. It’s no different than if the court had said the legislature had no right to ban interracial marriage in a state for which interracial marriage had always been illegal. It does not grant anything new, it just states that something has hertofore been unfairly taken away.

Well, I’m calling bull and shit on this argument, no matter how many times you scream it. The decision had the practical effect of adding a wholly new, wholly unpredicted provision to the Massacusetts constitution. It takes a remarkable amount of petifoggery to fail to see that.

(The flaw in your example, BTW, is that equal protection clauses were generally inserted into state constitutions in order to address racial discrimination.)

@Diogenes the Cynic

I have read Goodrich, by the way, but not recently. I read the whole thing at the time it came down and I was not impressed by the dissent. It sounded like special pleading to me.

Perhaps you should refrain from making affirmative statements about the content of the case if your memory is so faulty.

[Gorsnak]

@Diogenes the Cynic

Not unless it restricted it to couples who were a.) fertile and b.) actively trying to conceive. Part of the reason the procreation argument doesn’t work is that no consideration whatever is given either to fertility or to willingness to procreate when marriage licenses are given. A woman who has had a hysterectomy has no more theoretical chance of becoming pregnant than I do. Why should she get a marriage license?

Those restrictions would only be required if the test were strict scrutiny, which requires laws to be narrowly construed to meet their objectives.

It’s possible that strict scrutiny is the appropriate test for two reasons - a fundamental right is implicated, and classifications based on gender are created by the statute - but this is arguable. A concurring opinion in Goodridge adopts the latter position.

[Dewey_Cheatem_Undhow]

@Gorsnak

Look, the question isn’t whether there’s an argument to be made that the MSC made the wrong decision. I freely grant that there is such an argument. I don’t find it compelling, myself, but it’s there, and I understand that you do find it compelling. Fine.

But in ceding that point, you cede the whole case. Like God in the face of the Babel Fish, your argument disappears in a poof of logic.

If you cede that there’s an argument to be made in favor the procreative basis for marriage, you cede that such a basis is not irrational (it may not be persuasive, but it is not irrational). If reasonable minds can differ, then irrationality is not afoot. And if the argument is not irrational, the law must survive rational basis analysis.

In departing from that analysis, the court is using some alternative test while still calling it “rational basis.” And in doing so, they’re engaging in activism – they are changing the rules of the game to tilt the decision towards an outcome they favor. It is a clever, subtle activism, but if you step back and look beyond the sophistry, I think applying the activist label is perfectly reasonable.

[Dewey_Cheatem_Undhow]

@Gorsnak

It’s possible that strict scrutiny is the appropriate test for two reasons - a fundamental right is implicated, and classifications based on gender are created by the statute - but this is arguable. A concurring opinion in Goodridge adopts the latter position.

Nitpick: assuming the federal standard is the same as the Massachusetts standard, gender classifications are subject to intermediate scrutiny. The concurrence doesn’t actually state which of the two tests it is applying; I suspect intermediate, but with the same result.