Good post, Polycarp. However, I fail to see that (f) is any more illegitmate than either (c) or (e).
An important distinction, and I agree. However, how can the court legitimately identify a new right that the people so clearly do not? There are some things about which it’s hard to know the will of the people. SSM is not one of those things. As much as it might sound like rights shouldn’t be up for a vote, they must be if we are to accept the principle of self-rule.
I prefer a textual, originalists interpretation of the constitution (as you know). Unlike some textualists, however, I am perfectly happy to accept the “living constutition” interpretation method* as a legitimate method as well, provided that it does not go so far as to clearly violate the will of the people. If it does, that undercuts the most essential feature of our form of government. And when I say “the will of the people”, I’m not saying the SCOTUS should take a public opinion poll before it makes a decision-- I don’t think they should pay attention to public opinion polls at all. But when the people have spoken so clearly and so consistentlly at the ballot box, I cannot see how we can allow 5 people to simply ignore that, and decide that we must be ruled according to their vision instead. And we’re talking about 5 people who, except in the rarest of cases, cannot be removed from office. They owe us that deference, and I’m befuddled to see people chastize Bush (rightly so) for abusing his power, but cheer the court when it abuses its power. We entrust the courts with the important task of interpreting our laws and our constution, but they are our laws and our constitution.
I did not read the whole thread, but I wanted to comment. Some people believe the issue should be a states’ rights issue. I’m not sure whether conservatives or liberals are more likely to favor that position, but I think some liberals believe states should not be allowed to ban it. However, Massachusettes and Georgia were not allowed their state right on the issue as the Supreme Courts of each state overruled the bans.
I don’t see the equal protection argument. The 14th amendment doesn’t protect “equal justice.” That’s an objective lost at the start. It guards against a circumstance that would “deny to any person within its jurisdiction the equal protection of the laws.” You may see this protection as a meaningless one from a perspective of “true justice”–from your perspective, that is–and I’d concede that it may well be. But that’s what the Constitution says.
So, if a law states that all people may marry consenting adults of the opposite sex, and no one may marry a consenting adult of the same sex, that’s equal protection under the law. It may not be just. It may mean from a practical perspective that certain people get what they want and others do not. But the law is not required to remedy that circumstance. That’s not what equal protection should mean.
Now, if a law stated that all heterosexual men could marry whomever the hell they pleased, even if for their own reasons that meant they could marry another man, a goat, a toaster, whatever; but a gay man could not, then there’s an equal protection issue. I know that from a practical perspective, this may be meaningless again–e.g., but a heterosexual man wouldn’t want to marry a man. Conceded. Doesn’t matter. The laws just need to apply equally to everyone; they needn’t have the same effect relative to every person’s sense of justice.
Also, I agree with John. While recognizing that my opinion doesn’t matter–only SCOTUS’s does–I don’t see how the Constitution guards a right to marry for ANYONE, heterosexuals included. I don’t see a constitutional basis (based on a reading, not on the SCOTUS interpretation) for saying the states MUST permit us to marry, even if that state’s people, in the form of their legislature, decided otherwise (however unlikely that would be).
Actually, here’s a question that may best summarize people’s positions (I often ask it in constitutional discussions). Do you believe the Constitution, as it exists now, if interpreted properly, will always lead to a fair and just outcome; that when it doesn’t it’s because someone misinterpreted it or ignored an obvious right? The answer is easy for me. No. It can be applied absolutely properly and result in the shitty circumstance that the will of a given state decided it wanted.
I don’t suppose it will help to point out, for the fourteen millionth time, that “only such rights exist as are spelled out” is a significant misstatement of my position.
Not particularly well, I’m afraid. All the examples you cite seem to have been in reaction to an attempt to change the definition of marriage, which was taken completely for granted before the laws you mention. My point is, no one ever conceived of a notion like SSM as a legal entity before the idea was proposed as if it already were in the Constitution. It was sort of like suggesting that the story about Nero marrying his horse meant that inter-species marriage was an established entity.
The part about one man and one woman that is usually part of the definition is just as significant as the references to the marriage partners being of different sexes. This is to forestall arguments that polygamy is established by Loving.
The whole idea of marriage meaning anything besides what it has always meant in American society is what triggered attempts to establish the traditional definition in law. Sort of how the LDS church was required to repudiate polygamy before Utah became a state. The feds didn’t react by arguing that the definition of marriage already included polygamy; they clarified (or enforced) the same definition that the US had recognized all along. So it would not be completely accurate to say that definitions of marriage that excluded polygamy in America did not come until after an attempt to change the definition. More like a restatement of what was taken for granted as obvious all along.
An original intent argument! I like it!
Actually, it seems like he is arguing that non-enumerated rights are not “assigned into the hands of the General Government”. Isn’t that what I am arguing?
Gotta go. I’ll see if I can get back and devastate the rest of your post later.
So, if a state said that all people of a given race can marry anyone they like within that race, is that also equal protection? IOW, do you disagree with the decision in Loving?
I have to say, though, that it blows my mind that any state in 1967 would actually enforce anti-miscegenation laws, even in the South. The state legilsature never took this issue up between the time the Lovings were first prosecuted and the time the SCOTUS made its decison? Was there any kind of huge outcry in from state legislatures when the SCOTUS decision was handed down?
While I think that’s an important point to keep in mind, it doesn’t necessarily prove that this particular shitty outcome is not protected against by the constitution. There have been people on this board, though, who have argued that the judicial review process should seek some absolute kind of justice, irrespective of what is in the consitutiton. AFAIK, no one has quite done that in this thread yet.
I’ll have to read it again. But I don’t think it violates “equal protection,” except to the extent that SCOTUS has granted special consideration and thresholds for racial discrimination, a process I also recollect as not being covered in the Constitution itself. So, no scholar I, but yes, I think a state could foolishly decide that every citizen was free to marry his or her own race, but not outside their race, and there is no specific constitutional wording that prohibits this legislation.
Agreed. I’m just pointing out that the fact that it’s a “bad” outcome doesn’t by itself make it unconstitutional.
Further to that comment (and I’d appreciate any insight that legal historians have on this) why weren’t these laws addressed by the Civil Rights Act of 1964, which predates the decison in *Loving *by a few years? Were they left out on purpose (ie, for fear of not getting the legislation passed) or were anti-miscegentation laws so rarely enforced that they just didn’t seem to matter? Or, some other reason? I really don’t get it…
You asked for a cite for this statement in a thread about the legal issues surround marriage:
I gave you a cite that showed that most state laws predating the gay rights movement didn’t define it based on gender at all. You can say it was taken for granted all day long (and I’ll agree with you), but it certainly wasn’t codified. In other words, it would have been legal until they changed it. It’s certainly possible that they would have been denied a marriage license when they applied for it, but not on legal grounds, and it would have taken a case of “judicial activism” to read the law in any way that stated they weren’t allowed to be married. Unfortunately, we were still beating up and discriminating against homosexuals back then so that most were too afraid to be open about it.
I provided a ton of cites that showed that same sex marriage was not explicitly forbidden in the laws of many states prior to the gay rights movement. Feel free to provide cites showing that I’m incorrect.
That’s bullshit. It’s not “judicial activism” to read a word as it is commonly understood in the language. You are advocating what I like to call the “gotcha” school of interpreting the law-- ah ha! you guys didn’t say it had to be a man and a woman, so we gotcha on that. The Constitution only gaurantees freedom of the press. Are we to assume that TV news is not “the press”? Must we amend it to include every technologic advance that serves the same purpose? Of course not.
Only by invoking a definition that didn’t exist before the gay rights movement, and that is not even commonly in use today. If someone say “I’m married”, almost everyone automatically assume they’re talking about someone of the opposite gender, and feel no need for further clarification.
I like the challenge of trying to convince you that you’re wrong using your own limits, rather than mine.
No, you’re arguing that the power to determine unenumerated rights is left to the states, which is the “general government” of which he is speaking. He didn’t use the term federal government or state governments, but rather general government.
I wait with bated breath. If you can also go back and answer my concerns about your view of the 10th Amendment as it relates to Presidential wiretapping, your feelings on the state level decision in Goodridge, and the basis for your views on the role of the judiciary protecting minority rights.
Correct me if I’m wrong, but it seems like in light of what Shodan, is saying, this debate would be furthered by a brief consideration of what a “right” is from a linguistic and not a legal standpoint. Is gay and lesbian marriage a “right?” Is the ability to live in a nation in which gay and lesbian marriage does not exist a “right?” Are both of them “rights,” ultimately equally valid from a legal point of view (yet diametrically opposed), only enforceable by the will of the majority?
I suspect most would say (and indeed, I would as well) that the former is a “right” but not the latter because the latter denies some liberties to the individual without providing benefit to society (I realize that last part could be argued, although IMO not convincingly). Shodan, I would be particularly interested in your answer to this question.
Perhaps an example will illustrate this better–say I am a psychopath and I like killing people. I may say I have a natural right to kill people unprovoked, as I enjoy it and it furthers my ends. However, society is benefited by not permitting me to kill people, and so we do not consider “killing people” a “right.” Conversely, say I am an ardent vegetarian and want society to be free of meat-eating. I demand fulfillment of my right to live in a society in which meat-eating is not permitted. However, others like to eat meat, and it produces only negligable negative effects on society, and so meat-eating is allowed.
In the above situations, is it fair to characterize the positions of society, being that they are determined strictly by pluralism, as being “rights?” Or, is there some other way (logical, scientific, humanitarian) in which we can determine what is a “right” and what is not that sometimes is and sometimes is not concordant with the opinions of society?
You make it seem like Americans’ views on marriage are an anomaly in human history. Did any pre-modern (approx. 2000) society ever allow same-sex marriage? The closest I have heard about was from an anthropology professor who told me about a primative hunter/gatherer group near Indonesia that required all males to have homosexual relationships until a certain age (20s?) and then they got married; about 3% of the population refused to marry. From other studies I have read about, the number of homosexuals seems to range from 1% to 3%.
I didn’t mean to imply that SSM existed in other cultures. I said “in our culture” to avoid having someone retort with: I heard of some tribe somewhere that… because we don’t (and shouldn’t) give any legal standing to what some tribe somewhere might have done. Sorry if that was confusing.
I would go further and say that we shouldn’t be influenced in how we view our legal documents by what other countries might be doing now, or even in the last few hundred years. I can see some value in looking back at a time when the USA did not exist, as some of our laws and legal traditions do derive from English common law predating the American Revolution. But once we set up our own government we created our own precedents.
It’s hardly bullshit. You’ll note I quoted the phrase “judicial activism”, and I did so for a reason. I’ve never argued that people who created the law explicitly allowed for or even expected same sex marriage (they didn’t), just that they didn’t make it illegal (they didn’t). The states I listed (and most others I have since found) did not state that the genders of the parties in a marriage were required to be male and female until recently. They list all sorts of parameters that keep a couple from being married, but gender wasn’t one of them. Whether a judge would have allowed or not allowed a same sex marriage to remain a marriage would depend upon the individual judge’s interpretation, but a strict reading of the laws definitely didn’t forbid it.
Of course not, we just allow language to do what language does, evolve. “The press” is now used to indicate the broadcasting of news or journalism in general, as noted here.
Some people also assume that the couple are of the same race, but they’re not always correct when they make that assumption. I consider a male-male couple who has been married in MA to have a marriage, and whether I assumed that the couple in question were both male up front doesn’t make it less so. You can feel free to tell them they aren’t actually married, if you so desire. I’ll just wish them good luck in their marriage. I assume people are straight until I know otherwise. I also assume that they are Christian, less than 7 feet tall, white, and meat-eaters. Not because that’s the right way to be, but because the majority fit that role. Assumptions aren’t law.
Judical activism, whether in quotes or not, cannot reasonably be understood to mean “trying one’s best to interpret a law as it was meant to be interpreted by those who wrote it”. Now, you can try to make the argument that “man” and “woman” were left out of those laws on purpose so as not to include that restriction, and I’d really like to see what that argument would be. However, I’m confident in saying that in this case, your argument wouldn’t hold water. On the spectrum of judicial decisions that can be characterized as either “judicial restraint” or “judicial activism”, it’s hard to draw a clear line. But wherever one draws that line, a decission such as we are talking about would fall on the side of that line called “judicial restraint”.
And if judges and legislators from 100 years ago could avail themselves of dictionaries from the year 2006 that might have some usefullness as an argument.
And we can be pretty confident that that was never the common understanding of the term, even if it might have been one understanding. Hence, laws needed to be crafted that explicitly forbade interracial marriage.
Good for you, and so do I. But I’m not so arrogant as to assume that my understanding, which is a fairly recent understanding, is the common one shared by my fellow citizens. And I don’t want my judeges to be that arrogant either.
I put it in quotes because there isn’t even agreement amongst the legal eagles on this board how one defines it. By the way, our friend Bricker once said:
The law as written (prior to the recent changes) conflicted with the majority viewpoint. The majority did indeed effect a change in the written law to compensate.
I’ve never once made that argument, and in fact have stated the exact opposite everytime this comes up.
Marriage currently means anyone with a marriage contract to many people. The dictionary follows evolution of a language, it doesn’t control it, so I don’t see any reason to wait 100 years.
A large number of people who are hanging on to the “tradition” or “it’s too hard to change the laws” aspect as a reason are quite fond of extremely strict readings of laws. I don’t necessarily agree with that, but if they want it that way, then they need to be consistent. You’ll also note that it wasn’t that hard to change them, as we just recently did so in most states. Reversing them would be even easier, as we don’t have to craft new language. We just remove the language that was added in the last 10 years or so.
John, do you really need a cite to prove that the institutionalized dehumanization of African slaves in the United States resulted in an ideology of racial inferiority that created a dualistic view of humanity, where whites were human and blacks were sub-human, and that this was an extremely strong cultural barrier to cross-racial marriage in America?
I don’t see John disputing this. I believe John’s point is that even if there were “cultural barriers,” or legal ones for that matter, they didn’t rely on a common understanding that marriage necessarily excluded two races in the same union. Any restrictions put in place weren’t to guard against people creating a completely new understanding of the institution, since almost no one would have said that a marriage between a black and a white wasn’t a marriage, however distasteful that particular marriage might be to him.
