One can believe that the 14th amendment absolutely protects a specific right, but that belief does not necessarily lead to a conclusion that SSM is protected as well (see post #84).
Only by claiming that the word “equal” does not necessarily *mean * “equal”. We established otherwise over half a century ago and have moved well on since.
So what do you think the 14th actually does? If it’s a specific right as your position requires, which right would that be? There is none specified in it, only a blanket equal protection under “the laws”. Does that mean *only some * laws to you? Which laws? Does “all persons” mean “only some persons” to you, the way it does to Shodan? Which persons?
It says what it says. Your position is not based upon what it says.
It is! Or if it isn’t perhaps you can point out for me where it does not, because I believe it applies to all people, for all laws. But equal protection under the law does NOT mean the effect of a law has to consider every person’s inclinations, orientations, hopes, dreams and idiosyncrasies. It just can’t prohibit a specific activity for some but not for others.
A law that says everyone may marry a consenting adult of the opposite sex, but may not marry a consenting adult of the same sex allows and prohibits the same specific activity for every citizen. You might counter that it permits some people to marry exactly whom they want, and others it does not, but that’s not relevant in a constitutional argument unless that right is guaranteed in the Constitution. It is not. Perhaps it should be, but it isn’t. As I said earlier, I don’t believe the Constitution guarantees the right to marry for ANYONE, regardless of one’s sexual orientation.
No, I don’t need a cite for that, nor did I ask for one. I asked for cite that the term marriage was commonly viewed as an institution reserved for members of the same race. I’m sure there were many people who thought that it was, and I’ll bet there are some who still think so today. But that doesn’t make it a common or natural part of the definition of the word. For instance, freed Blacks were always viewed quite differently than enslaved Blacks, even in the South. It might have been unthinkable that a marriage could take place between a freed person and an enslaved one, but that’s different matter as there wasn’t any extended period of time when no freed Blacks existed in the the US (or in the progenitor of the US, the colonies).
That’s where I think the analogy between race and sexual orientation breaks down in this debate. Race has never been an essential part of the definition of marriage*, but gender has. That’s all. There are some similarities, especially now as we understand more and more about human sexual orientation. But remember that it wasn’t long ago that mainstream psychiatry classifed homosexuality as a mental disorder.
*meaning that it was embedded in the word iteslf without being explicityl spelled out.
Okay. This site has this to say:
(Bolding mine)
Here’s another:
Vermont is the only state which never tried to pass an anti-miscegenation law.
The definition of marriage argument was used, as well:
OK, I see the confusion, and I’m mainly to blame. I should have said “commonly viewed to be an essential part of the definition” so that it didn’t have to be explicitly spelled out in the law. Your cites actually prove the point I was making, even if I articulated that point poorly. I think if you go back and read my last post you’ll see that the “essential” part was spelled out clearly even if I didn’t attach it to the “commonly” part. Yes, people thought marriages should be restricted between same race partners, and your cites show how some forms of racism (towards freed Blacks) seems to have increased after the Civil War. But was there a time when the commonly understood meaning of the term “marriage” was such that interracial marriage would be understood to be illegal without explicitly saying it was? Interracial marriages weren’t common, and they were largely socially taboo, but they were always present in some parts of society until and unless they were explicitly declared to be illegal.
Now, compare that to SSM. When was there a time when SSM was considered something that had to be specifically legislated against? There were laws against homosexual acts, but was it ever necessary to outlaw SSM? No, because it was outside what was held to be an essential part of the definition-- that the people involved were of opposite sex. Was there a time in the past (before the gay rights movement) when there were laws describing the punishment for two same-sex people who got married? I’m not aware of any, and they weren’t needn’t because it was so outside the norm that you didn’t have to worry about anyone even trying to do it. As an example, until 1977 CA marriage law was gender neutral. Why was that? Simple-- it was commonly udnerstood that the “man and woman” part were an essential part of the word and didn’t need to be explicitly listed.
From the third cite I listed:
Apparently so. Rome enacted a statute against same-sex marriage in 342 A.D.
It seems like you’re saying that interracial marriage was never considered “not-marriage” based on the fact that sates had to enact laws specifically prohibiting it…and at the same time, the fact that states are currently enacting anti-ssm laws is because same-sex couples were never considered marriageable.
So fine, let’s say there’s no absolute right to marry. Then let’s really make it equal—the government does not recognize marriage of any kind. From now on it only offers civil unions. If you want to get “married” in a church, fine, but it doesn’t grant you any extra rights.
I also want to add, that this proves my point exactly. As you noted, the laws against different race marriages increased after the Civil War. Why? Because a commonly held belief: Races should not inter-marry, was being widely challenged.
In regards to SSM, we see the exact same trend happening today. As the notion of a commonly held belief becomes challenged, we see a significant rise in legislative action and constitutional amendments.
The legal, social and cultural comparisons between SSM and inter-racial marriage are almost identical John. If you look at what you wrote in your last post and compare it to the issue carefully, I think you will see this.
Then I agree with you up to the point where you mention that it would have been legal.
It was taken for granted, as we agree, to the point that it literally never occurred to anyone to spell it out. But once it became necessary to spell it out, then immediate action was taken to give that assumption the force of law. But I rather doubt that the clerk would have issued a marriage licence to two guys who wanted to get married in 1921. Similarly, definitions of marriage that exclude polygamy did not really get codified until it became necessary, as I mentioned earlier.
If what you are saying is that people never dreamed that “marriage” could include SSM until someone suggested that it already did, and that the notion was immediately rejected as bizarre or offensive once the suggestion was made, then we are in agreement. But I doubt very much the idea that SSM would ever have been allowed, even before the attempt to say that it already was. If you see what I am saying.
If you would like to define as “judicial activism” the attempt to reject SSM, then I think I see your point, and even (to a degree) agree with it. The proper role of a judge who is confronted with a claim that I want to marry my boyfriend is (insofar as possible) not to act. That is, it would be legitimate (in my view) not to issue a marriage licence to a petitioner for a SSM, and also legitimate to refuse to issue a decree outlawing SSM. The best course of action is no action. Thus there is no "judicial activism’ either establishing or outlawing SSM, which is a new right. Thus the courts have no role in defining it.
Sorry, that is just as stupid as the rest of what you have posed.
It establishes equal protection. It does not establish SSM, since it doesn’t mention SSM at all. Because, after all -
You are attempting to make it say something it does not, thru sheer repetition.
Well, I guess I would need a cite to show that this is what he meant. Because the quote you provided does not mention “the people”, and that, after all, is what the Tenth Amendment says.
It does not. It refers to all un-enumerated rights. The process of enumerating those rights belongs properly to the states or the people.
Yes - in two ways. The first is to put those rights into the Constitution. The second is to recognize that there were other rights, not enumerated in the Constitution, that might later come to be considered as legitimate and worthy or protection by the government. And so established a process by which those rights could be recognized, and (most importantly) by whom it was to be performed. And you will note that the Supreme Court is not the ones they specifically mention.
And again, this stuff about “judges protecting the rights of minorities” is a not-particularly-subtle form of begging the question (BINGO! 
) You can’t respond to the question “how do you know that SSM is a right of the minority” by saying “if you don’t think so, then you are not protecting the rights of the minority”. First you have to establish that SSM is a right established by the Constitution, or the states, or the people. Then it becomes a right to be protected by the feds. Until then, you are just blowing smoke.
The part about protecting minority rights I already dealt with. The rest is three or four different threads.
I’m not sure I understand the question, but I never let that stand in my way. 
I would say both the “right” to SSM and the “right” to live in a nation that did not allow SSM could be considered “rights”. But I do suspect they are in fundamental opposition, thus you couldn’t have both “rights” at the same time. So from my position, whichever was established by the states or the people (since both SSM and a SSM-free nation are un-enumerated “rights”) become, by virtue of the process by which they are established, a “right” deserving of protection by the federal government. Not until then, of course. And then the Fourteenth Amendment would kick in and it would be illegitimate for the government to allow SSM for one group and not another, or allow one person to live in a SSM-free nation but not others, and so forth.
Where are you headed with this?
That is not how I see rights to be properly defined.
My view is very much based on the Declaration of Independence. Rights are God-given. The Constitution spells out the role that government plays in defending those rights, and lays out some explicitly, acknowledges that there can be other un-enumerated rights, and lays out a process by which those other rights can be brought under the protection of the federal government.
Does that help?
Shoot, this is getting long, and my wife wants to take a walk with me.
Regards,
Shodan
You have a strange idea of what “consent” is, then. If you don’t think even the common definition of marriage involves love and wanting to share lives together with the partner of one’s choice, but only that it’s commonly considered just another business transaction, then you’re way out in left field. Anti-SSM laws in fact *do * 'prohibit a specific activity for some but not for others." Don’t be absurd.
Which word are you having trouble with - equal, protection, laws, all, or persons?
Well, I’m not sure how one substatiates that a “state” boasts about something, but that’s besides the point. If it was a “commonly” held view, why did the majority of states need laws explicitly forbidding it? Answer-- it wasn’t a commonly held view.
But please, let’s not lose sight of what started this whole discussion. In Loving, the majority opinion stated that “marriage” was a fundamental right. All fine and good. But if you want to claim that the term marriage, in that context, was used to include same sex couples, I need to see some proof of that. If you want me to concede that I’m completely wrong in the debate you and I are having, I will do so, if that gets us back to the original question: In 1967 did the term “marriage” commonly include same sex couples as an essential or intrinsic part of its definition?
Now there’s a convincing, logical refutation. :rolleyes:
There’s a helluva lot of other things the 14th doesn’t say specifically, because it doesn’t mention anything at all specifically. By your “reasoning”, then, it has no effect whatsoever.
Here’s a hint for you, not that it will do any good: the 14th covers “the laws”. *All * of them. No exceptions, no specific mentions required, but *all * of “the laws”. Will you next claim that marriage is *not * covered under “the laws”? That marriage has no existence in “the laws”? Or, as I expect, will you reply instead with just another typical childish bit of invective?
Marriage is a legal institution, obviously - that’s what all the fuss is about; *all * of it. The right to it was confirmed by Loving. Those are simple facts.
The 14th, covering *all * of “the laws”, therefore guarantees equal protection of the marriage laws to all persons. *All * persons. You don’t have to like that, but, bluntly, so what?
SSM is *not * the right in question. Equal protection is the right in question. Or, rather, *not * in question by those who’ve actually *read * the 14th.
And I ask again, if it was a commonly held view that gay people couldn’t get married, why do states need laws explicitly forbidding it?
It doesn’t matter what they thought of it in 1967. When they wrote “all men are created equal”, they didn’t include people of color or women in the definition of “men”. Nevertheless, we have been forced (largely by courts) to live up to the ideal of that statement. The right to marriage is a right to marriage—a free choice between consenting adults—that’s the heart of Loving. I’m sure the idea of SSM never entered their heads, but it would seem that we have historically not “created new rights” but progressively removed the biased filters that kept those laws from being applied to the people who would benefit from them in an unbiased society.
To restrict a freedom, the state must have a compelling interest in it’s outcome. Marriage between closely related individuals is restricted because children produced from such a relationship have a greater chance of health defects (although I’m perfectly willing to concede that this mostly stems from incest taboos. We don’t restrict people who likely carry harmful, recessive traits from marrying, and we still don’t allow relatives who don’t plan on having children to get married). No harm comes from interracial marriage, and no harm comes from same-sex marriage. Other people being squicked does not equal harm.
Shodan: Read this carefully: Rights are not powers; powers are not rights.
The Tenth Amendment vests the undelegated “reserved powers” in the states, or in the people. The Ninth Amendment, following Madison’s concern, says explicitly that there are rights – not powers – that have not been enumerated, and that the enumeration of some is not grounds for refusing to accept the others.
Also, your little bait-and-switch about equal rights is funny. Well, guess what: we each have equal right to say here in this thread that the Equal Protection Clause validates a constitutional right to same-sex marriage. But, oddly enough, one of us is much more likely to take advantage of that right than the other. Why, do you suppose, is that?
Equal rights must mean the equal ability to do as one chooses, subject to reasonable restrictions thereon, for it to have a meaning. If Chaim and Tom~ have equal rights to send their children to state-supported Catholic parochial schools, one tends to benefit more than the other from that right, wouldn’t you say? And therefore, it’s not truly equal rights, unless there’s also a state-supported Yeshiva.
The issue advanced here is whether a person has a right to marry the willing partner of their choice, a right guaranteed by the Constitution. Whether the Constitution guarantees “same sex marriage” or other abstract conceptual statement, either textually, by original intent, or by something that has evolved, is moot.
The Equal Protection Clause has its own jurisprudence connected with it, and it amounts to this: if any one American citizen can do X, then any other American citizen is also privileged to do X, so far as governmental regulation is concerned, unless there is a reasonable state ground for discriminating between them. Issuing drivers licenses to 17 year olds but not to 10 year olds is legitimate discrimination. Etc. One of the Dopers-at-Law can set out the degrees of scrutiny and where they are applied, but the bottom line is that states can define categories and discriminate between them when there is some reasonable ground for doing so and where that ground overtops the right for equal protection. Obviously that ten-year-old’s right to drive a Humvee is being discriminated against, and we’re all the better for it.
What is the legitimate state interest in requiring that those who wish to marry be of opposite sexes? Why is that a legitimate concern of the state?
I already said that the definition is now begining to change. But that doesn’t mean that the statement in *Loving *suddenly includes same sex couples. Some people may reasonably consider whether the statement is still valid given that new definition of “marriage”. (See below for the SCOTUS’s view.)
That quote from the Declaration of Independence is interesting for its historical context, but does not carry the weight of law, nor does anything else in the DoI. The Constittion explcitly allowed slavery, and it was the constitution that exlicitly forbade it when Congress and teh States passed the 13th amendment. No courts involved. It’s true that the SCOTUS has increasingly played a role in determining the civil rights of racial minorities, but it’s has largely stayed out of the fray wrt sexual orientation.
Emphasis added. That’s not completely true. The SCOTUS has not ruled that broadly when the restriction concern sexual orientation, even though they have for restrictions concerning race. The closest that court has come so far is in Lawrence vs Texas, where anti-sodomy laws were struck down. Note, however, what the court explicitly stated in that decision wrt SSM:
Further, O’Conner’s concurring opinion stated (emphasis added):
If O’Connor had actually mentioned what any of those “other reasons” might be, that might have been a good point. As she didn’t, because there aren’t, it ain’t.
However, I think that distinction is kind of tricky as a basis for determining what the right to marry intrinsically means. There are other issues that have culturally been “an essential part of the definition of marriage”, but are nonetheless not considered part of modern marriage rights.
For example, the possibility of multiple marriage partners, at least for males, was “an essential part of the definition of marriage” in a number of our ancestral cultures. And it was so considered among most American Mormons up to the late 19th century, and in fact is still so considered by some people.
I think you could make quite a good case that polygamous marriage is at least as “natural” and “essential” to our historical/cultural concept of marriage as interracial marriage is. However, the Constitution is nowadays considered to protect people’s right to interracial marriage, but not their right to polygamous marriage. How is that not infringement of the right to marry, if we’re going to define marriage according to what it has historically and essentially meant in our culture?
ISTM that this is a pretty clear admission that the Constitutionally-protected right to marry is in reality defined not by what the alleged historical/cultural “essence” of marriage is, but by what modern culture thinks marriage ought to be.
SSM opponents* who want to reject what you might call the “living marriage” interpretation in favor of a more rigid “essence of marriage” definition need to take a careful look at where that could lead them. Ironically, in trying to slam the door of Constitutional protection shut against same-sex couples, the “marriage essentialists” are unintentionally opening it to the polygamists.
In fact, there are even more unsavory potential consequences of trying to define marriage by its historical/cultural “essence”. After all, the “essence” of marriage in our culture until quite recently also included “coverture”, or the disappearance of a wife’s legal identity into that of her husband. ISTM that redefining marriage to permit an autonomous legal identity for a married woman is, culturally and historically speaking, hardly any less revolutionary than redefining it to include same-sex couples. Sure, it seems like much less of a big deal now, but that’s because our present-day marriage practices have already accustomed us to it.
- Yes, I know John Mace doesn’t oppose SSM, but most of the people who argue against Constitutional protection of SSM in fact do oppose it.
The way the SCOTUS court is going to mandate the legalization of SSM (if it were to do so) will probably be to elevate sexual orentation to the hightened level of scrutiny that so many people (erroneously) assume it already has. O’Conner is clearly saying that the Court has not done that yet. So, in the view of the SCOTUS, sexual orientation is not legally analogous to race.
I agree with you that it should be, since neither are characteristics that we have any control over. However to state that it is, is simply wrong because it demonstrably isn’t. The SCOTUS has the final word on that.
As I finally got Bricker to acknowledge, selecting the appropriate level of scrutiny only comes into play when there is an argument to scrutinize.
But there isn’t.