Because it has been the constant theme of several posters in this thread that there is nothing needed beyond a recognition by various courts (including SCOTUS) that it is simply the “right” thing to do.
It may be the right thing to do, but it is delusory to claim that the right has already been established. Without either a change in the meaning of the word “marriage” or a discovery of rights similar to those found by the Massachusetts Supreme Court in the Massachusetts Constitution, your arguments, however happily intended, are going to fail in courts of law. I think that believing that something “must” be true simply because it is desirable is, ultimately, a self-defeating attitude.
Wow. I didn’t know I claimed that. Thanks for clearing that up for me. And here I thought I had pointed out that it was more than just the “right” thing to do, it was the right Constitutional thing to do.
The right to marry has been established. The precise extent, and definition, of that right has not. Neither has the precise extent and definition of the right to privacy, the right to contract, or the meaning of liberty. That’s the interesting thing about this country and this Constitution. Not everything is perfectly settled yet. Thank heavens we have a system of government to deal with messy situations.
Wow, something else I didn’t know I was beliving. I’m learning a ton in this thread.
I’m not delusional enough to think that courts “must” follow my logic, nor do I think they will immediately. But I also don’t think that my reasoning is by any means tortured, or that it is an area of settled law. I am advocating a position that is coherent, intelligent, and in line with the precedents of Loving, Zablocki, and Lawrence. I would prefer not having to make the argument at all, but the small minded, busybodies of the right seem to have their heart set on the denial of civil rights to homosexuals.
Lawrence and Loving will, eventually prove to be the groundwork for the rulings in the future. And I do hope that the courts are complex enough to look beyond the dictionary definition of a word and agree with my argument. And that they’ll find that the right to marry is not defined by the genitalia of the people getting married.
C’mon, Tom, you aren’t going to let it end here, are you? Believe me, there are those of us who know you have created a cogent, specific argument. I know it gets tiresome after a while, but I keep coming back to the thread to see your counter. Don’t let us down.
Let’s overlook the part about a right not being “discoverable” unless it *does * exist, although that would be “delusory”. They’re just words, right? :dubious:
The clarifications - okay, call them “redefinitions” if you like, that’s the same thing - you correctly note must occur would be *part of * the court decisions you tautologically insist cannot occur without them. There’s a good example in settled law already.
Strawman, not the belief being expressed.
Only if they recognize an obligation to comply with the 14th, though. As, you know, they must, in the absence (as I note once more but with decreasing hope of your acknowledgment) of a state interest overriding it.
Can we have a cite for that “obligation”? If the matter were before the SCOTUS today, do you think that court would recognize said “obligation”? We’re speculating on that, of course, but what do you honestly think?
bolding mine
Yes. Only IF. Given that it is only your firm desire, unsupported by actual decisions, that underlies this “IF,” it is delusory (the correct word) to insist that it “must” happen.
The “just words” argument is not mine, so it is silly to try to throw it at me.
Many things are “discoverable” by one group that are never discovered by others. I can point to numerous people who have discovered God.
I’m no mindreader; I’m not sure about each justice’s brazenness about results-oriented decisionmaking or how strongly they’d let fundamentalist religious views or the yuck factor influence their votes. But that requires an assessment of their attitudes as political actors, not the strength of arguments made to them.
I will note that, if a reasoned way exists to affirm continuing a discriminatory practice on the *basis * of the Constitution rather than by flouting it, I have yet to see it articulated anywhere. If there is a rational basis for a state interest in continuing that discrimination sufficient to override the 14th, on any level of scrutiny, I have yet to see it articulated anywhere. If there’s such a way even to argue that gays get due process rights in the current system, I haven’t seen it articulated. And if that hasn’t happened on *this * board, where *would * it happen?
That’s a challenge to all the handwavers out there in GD-Land, btw. All you folks who’ve done nothing but throw darts at the Constitution and those of us who take its meaning seriously need to state positive arguments of your own.
That’s not the way it works. The right needs to be identified-- it’s not simply assumed to be there. The consitution is nothing more or less than the collective will of the people, as expressed thru a super-majority vote. We like to think that the people, when acting in this way, generally reach a fair and just result, but that needn’t be the case-- as can be seen in the case of SSM. The SCOTUS is tasked with intepreting the constitution in cases where disagreements arise. They have no obligation to identify a new right which the people do not recognize. As I said earlier, there are times when it’s near impossible to determine the will of the people, but this isn’t one of those times. One can’t call a court “brazen” for deferring to the will of the people in a country that is supposed to be self-governed. The brazenness would be to insist on doing otherwise.
Actually, I have seen no place where you actually argued from the Constitution and case law that it was the Constitutional thing to do. Your posts gave me the explicit feeling that you were arguing that simply because it was right, the Courts ought to do it:
I agree that the court should do it, but the court only acts in the context of legislation and case law and you currently have neither on your side. Your desire to ignore the meaning of the word is simply an effort to ignore how the world works. I suspect that it will take a lot more development in the legislatures and lower courts before we get there.
There is absolutely nothing in Loving that will support your desired goal. There is nothing in Zablocki that is going to help the cause. I am not aware of any penumbras in Lawrence that could be stretched to implement your desired goals, either. As long as the right to marry remains the right to unite with a person of the opposite sex in law, you do not get the benefit for which you hope in Federal law. I agree that Massachusetts took a step in the right direction when they cited Loving and Zablocki, but they were still compelled to change the meaning of the word marriage to get where they wanted to go, based on other provisions of the Massachusetts Constitution. Without similar provisions in the U.S. Constitution and a desire on the part of SCOTUS to change the definition of marriage, you are simply SOL in that arena.
With luck (and a lot of pressure), enough states may decide to emulate Massachusetts (and Canada) in redefining the word marriage in law. At the moment, that is unlikely, but that could change. Until any substantial number of states choose to take that step, (in the face of two states Constitutionally overriding court decisions and another 17 states pre-empting such decisions), the SCOTUS is unlikely to read Loving (or even Goodrige) in a way that you hope in the near future.
In reviewing this thread it seems that this issue we’re arguing over is that Tom~ insists we acknowledge that allowing same-sex couples to marry “redefines” marriage. Why he is so insistent on that is beyond me. It rankles me to concede that it’s a “redifinition” rather than the evolution and natural progression of the word to include same-sex couple as well as heterosexuals. I think that’s because to me it seems calling it a redefiintion makes it sound imposed and unnatural. And I’m not willing to admit that marriage must be between opposite sex couples just because it always has been. I will not concede it’s a redefining the word rather than the natual evolution of the word.
Tom~ is also insistent that we acknowledge that the change has only happened in Mass. and nowhere else yet. Okay, acknowledged. Or at least, I’ll acknowledge that is the only state where the laws have caught up with society on the issue. Polls on the subject show that support for expanding legal marriage rights to homosexuals is growing with time. As this support grows, and it will, then eventually all courts will recognize what the Mass. court did.
If a case came before the US Supreme Court today, then Tom~ is probably right that the court would not find support in the case law of Loving and Lawrence. But I think in time Hamlet is right that once popular opinion in support of equality has reached the critical mass, then it will find those rights supported in those cases.
But I still object to calling it “redefinining” rather than “correcting” the legal definition.
And Tom~, personally, I am a little uneasy that you seem so fiercely committed to the idea that it’s a redefintion of marriage. It seems to me that indicates that you still don’t seem homosexual relationships as equal.
Of course it does. That’s what courts and/or legislatures and/or referenda accomplished.
No, it’s a little more than that, and I’m disappointed you disagree. The Constitution is a statement of principles upon which a free, democratic society is based, not just a list of rules like any other statute. It is written in large part to *protect * those principles, and the minorities of the day, from temporary arousals of baser instincts, what you call “the collective will of the people”. Equal protection of all persons, all persons codifies that principle. If the Constitution is in conflict with what you perceive to be “the collective will of the people”, it is supposed to not only protect the targets of that will but to make “the people” reconsider their actions. We don’t define our principles, our highest and best instincts, by a mere polling mechanism, yet that’s the only role you seem to see the Constitution as playing.
For Og’s sake, have you ever bothered to read anything here? Once more, and only once, you can scroll up and reread at your will: Equal protection under the laws for all persons is NOT a new right. It is an *existing * right. I’m not repeating that anymore just for your benefit. Deal with it.
You really, *really * need to reconsider what a Constitution is for. Homebrew, great post.
I can’t help noticing that we have yet to see an affirmative argument from anyone in support of continuing discrimination here. What is the basis that a prospective state AG in a prospective equal-protection case before SCOTUS would use to argue that the 14th may be overridden? Is there *anything * but handwaving and bluster and strawmen? (Note carefully: That is not the same question as “How would this Court actually rule?” It’s “If they ruled in favor of discrimination anyway, what would their rationalization be?” Got it?)
I don’t know how anyone could actually have read this thread and come to this conclusion. This is just a weaker “You’re a homophobe!” reaction to anyone who disagrees with the strict party line–a reaction that is tiresome–and it’s not good debating.
I have no qualms about saying someone is homophobic if I believe they are. If I wanted to call Tom~ a homophobe I would have. I don’t believe he is. I respect him and I believe he wants equality. But just because someone has overcome societial norms of his generation and is for equality, it doesn’t mean he doesn’t have an issue or two. Hell, there are plenty of gay folks themselves who have problems seeing themselves as equals in society. We’ve been told by preachers, presidents and parents that we’re not for so long, it sometimes takes a while to get over that conditioning. Identifying the blind spot can help you deal with it.
That would seem to be due to your need to misunderstand the point I have been attempting to make.
When I entered the thread, you were playing ping pong, holding up Loving as this great paddle that was going to sweep away all legal objections to same sex marriage. I have only attempted to show that you are going to need more than Loving, (or Loving, Lawrence, Zablocki, and even Goodridge), to get the laws changed.
I fear that you are deluding yourself into believing that some right has been established when, for the great majority of U.S. citizens, including legislators and jurists, no such right has been established.
As I asked many posts ago, how do you expect your claims for Loving to work in society? When you say Loving established that every person has a right to marry and your opposition replies, “We agree: every person has a right to unite in law with a person of the opposite sex” where do you go next? How do you propose to proceed when your whole argument rested on a right over which you and your opponents fundamentally disagree as to the terms–and they are in the majority?
If you have read anything that I have written as a way to set same sex marriage as a different tier in law, then you are reading through some filter of your own feelings.
(It is possible that it was ElvisL1ves, not you, who was playing ping pong. It has been a long weekend and I am not going back to find the author of every position. I am not trying to insist that you were the wielder of the ping pong paddle, only that it was that frustrating volley of missed discussion points that drew me to post.)
I don’t expect it today. I expect that over time more and more people are going to realize the error of their current position. They’re going to realize that the gender of the participants is immaterial to the committment between individuals. They’re going to realize that it’s a sophist argument to claim everyone has the equal right to marry someone of the opposite sex, rather than the person of thier mutual desire and choice. History is on our side. How? The same way it has been happening for the past 10 years. Keep demanding. Keep trying. Never give up what is right.
Women didn’t get the right to vote simply by giving up after the first arrest. Jim Crow didn’t die because the Civil Rights movement gave up after the first time fire hoses were turned on them. Homosexuals didn’t get the freedom to love without being arrested by quitely waiting in back rooms.
There has been no ping-pong involved on *my * part. There’s no question that judges are human and subject to human impulses. All I’ve tried to say in that regard, and have had difficulty getting across to you for some reaason, is that a judge who rules in favor of continuing discrimination would do so only by flouting the Constitution, and that it would not be difficult for a plaintiff to make that clear. But apparently it *is * difficult to make that point clear, or perhaps it just has trouble making it through some persons’ shields of stubbornness. I note in passing that you, too, have not suggested a rationalization, however lame, that a court intent on denying equal rights would use.
Nor, for “the great majority”, denied, either. True? Now, to your unhelpful “deluded” remark :dubious: - change your wording from “established” to “recognized” and you’ll be closer to what has actually been said here.
Where Homebrew said, at first, to lay the groundwork. But look at the history of recognition of other civil rights - that has never happened by simply, quietly, waiting for society to change, to recognize what’s the right thing to do. Doors don’t open by themselves, sometimes they need to be kicked down. The issue isn’t going away. It will be kept in the public eye in both legislative and judicial arenas as long as the discrimination persists and as long as we have people who care about fixing and improving our society - that too is the history of the recognition of civil rights.
If you’re insistent that “civil unions” would not create a difference simply by use of different wording, that view is simply not supported by the history of “separate but equal” or “we’re just not ready yet” in similar contexts. It *is * a different tier, and it takes a filter to *deny * it.
Nice scarecrow, you’ve got there. Did you use up all your straw?
I have not argued in favor of civil unions and I have pointed out why civil unions fail to secure the rights of marriage. So what is your point?
On the contrary, your entire exchange with Shodan amounted to little more than “Is too!” wherein you simply insisted on repeating that the the current decisions when seen through the perspective of the 14th Amendment have already secured the rights you need. Until you actually persuade some large number of persons in this country that there is no substantive difference between a committed union of persons in law, regardless of respective genders, you are going to be dismissed by them. Unlike Polycarp, who, in other threads, has attempted to lay out an argument to show why the 14th Amendment should be extended to cover same sex unions, you have simply insisted on repeating your refrain that it does.
