I think what I’m trying to get at is that I don’t see both of those as being equivalent “rights,” and I’m not sure if its because I’m invested in my own opinion or if it truly possible to construe the ability to live in a nation sans SSM as a “right.” I can illustrate how this makes me feel by making inflammatory comparisons, and I shall do so now–
Americans have the right to live in a country without interracial marriage
Caucasian americans have the right to live in a country without people of non-white races
Caucasian americans have the right to imprison or enslave people of non-white races.
–now, certainly I can call these rights, but that doesn’t make them necessarily rights in the true sense of the word, does it? We are repelled by these “rights” because we see them as unjust–yet they are rights which certain Americans vociferously defended at one point and which a very small minority do to this day. You’ve said that it is accurate to consider both SSM and the ability to live in a society without SSM rights, but it is hard for me to agree when the latter (and admittedly, this is entirely too subjective a judgement) lacks any sense of justice or fairness.
I’m suddenly reminded why I never became a lawyer.
Nope, you can keep spouting platitudes, and it won’t mean you’ve addressed the specifics I’ve posed. I’m not fixated on “common definitions of marriage,” or any such thing. I’m not in the camp that says SCOTUS needs to search for prevailing sentiments or which way the wind is blowing now. They need only read the Constitution. Such a reading would show there’s nothing keeping the states from prohibiting any act they’d like, so long as that prohibition is applied equally to all the citizenry, and it isn’t specifically disallowed by a Constitutional guarantee. Anyway, that’s how it reads to me. But I’m funny that way.
I fully agree that “equal protection under the law” applies to all citizens, for all laws. Which of these words confuse you the most?
Yes. Equal protection demands that any law that states that people may marry consenting adults of the opposite sex (and NOT consenting adults of the same sex) be applied to all the citizens, without regard to their race, religion or sexual orientation. Can you understand that someone can support SSM and still believe that the 14th amendment does not demand it?
I’ve read it. It’s pretty short. Care to quote the sections that say SSM is a constitutional mandate?
That battle was fought and lost long ago, my friend. You are not going to reverse the major SCOTUS decions of the last centruy. There would be more harm than good done by simply erasing the legal precedents that currently exist, as they are part of your laws now whether you like them or not. If you want to argue that you’d like to draw a line in the sand and stick to a textualist approach from now on, that might make sense. And that might actually happen if Bush gets to nominate one more SCOTUS justice before his presidency expires.
Yes, I tilt at windmills. I can’t resist. I would point out that SCOTUS overturns decisions regularly, however. If they did so now on the basis that prior decisions were based on the whims of the Justices in question, I’m OK with that blatant disregard for stare decisis.
What are you talking about? Madison clearly states that a concern of some people was that by enumerating certain rights, others would be left, as you assert, unprotected. Madison was a believer in natural rights, and, he specifically stated that there are rights that should be protected that are not enumerated in the Bill of Rights. He said nothing about those unenumerated rights would only be protected if somehow enacted by the states. But, if you have the time and inclination, Randy Barnett has a huge dissertation about the original intent of the 9th Amendment, which you can download here In it, he discusses Madison’s speech about the Bill of Rights, quotes from other founders, and much more. In one part, Barnett quotes Madison and states: “Madison contrasts the powers of states—which Kurt Lash sometimes identifies with the collective rights of the people — with that of the natural rights retained by the people: “It has been observed, that the Constitution does not repeal the State bills of rights; to this may be replied, that some of the States are without any—and that articles contained in those that have them, are very improper, and infringe upon the rights of human nature, in several respects.” This passage does not mesh well with the claim that the Ninth Amendment, devised by Madison, merely referred to state bills of rights, as is contended by the state law rights model. Nor is it consistent with the residual rights model. According to Madison here, natural rights are not simply what is left over after a delegation of powers to government. Instead even constitutional delegations of powers are “improper” when they “infringe upon the rights of human nature.” In this manner, natural rights provide a way of evaluating governmental powers, whether express or implied.”
And, once again, where do you get that idea? I’m a little tired of asking for cites, only to have my requests parsed incorrectly.
As I’ve pointed out before, you’re wrong in your interpretation of both the 9th and the 10th Amendment. I’m still waiting for a cite about this conclusion you draw.
They didn’t have to. They gave the power of judicial review to the judiciary. It’s kinda like saying they didn’t give the power to make federal crimes illegal when they gave Congress the power to make laws.
I was speaking, not just about SSM, but rather about your apparent view that the judiciary is forbidden from defining and protecting unenumerated rights. That argument flies, not just in the face of the 9th Amendment and judicial review, but also the ideas of separation of powers and protection of minorities.
It all depends on your definition of “dealt with” I guess.
Actually it would take a paragraph each to answer. Why, if your reading of the 10th Amendment is correct, would the President have the power to wiretap US citizens without a warrant? Why, if your reading of the 10th Amendment is correct, wouldn’t a state court have the power you would deny the federal government? And where you got the idea that the judiciary is foreclosed from exercising judicial review of unenumerated rights. I don’t think they’re really hard questions, just ones that hurt your position. Which is why they, and the other parts of my responses that you leave untouched when you reply, are seemingly ignored.
If you’re claiming you can define words to mean anything you like, then there’s nothing to discuss with you. The Constitution says what it says, and that’s no platitude. Your interpretation, oh, let’s just call it “ideosyncratic” and be kind, doesn’t fit it, sorry.
I’m not confused. I’m not claiming that nobody is excluded on the basis of some weird definition I just made up to avoid claiming otherwise, because I’m “not fixated on definitions”. :rolleyes:
You can continue this absurdity as long as you want to. Your call.
I was rephrasing the assertion into something that did not involve “same sex marriage” or discourse on the sexuality of the individual. I take the ruling of C.J. Warren that “marriage is a fundamental right” from Loving, and would suggest that it be regarded as a premiss or presumption for this discussion. In other words, if someone wants to argue that marriage is not a fundamental right, they must make the case for why it is not and why Earl Warren was in error. I assume that it is appropriate to assume that a non-reversed Supreme Court decision not presently at controversy is settled law.
Now, given that, my contention would be that the Equal Protection Clause does in fact give equal rights to all American citizens to marry. It appears to me that the two positions you have defined are both legitimate readings of equal protection: that all persons are free to marry the person of their choice, or that all persons are free to marry from a particular category of other persons.
As Anatole France said, however, “The law in its majestic equality affords both the marquis and the beggar the right to sleep beneath bridges and to beg their crust of bread in the street.” Bottom line to me is that an “equality” that grants one group something it desires, and grants another group the same thing which it does not desire, is in fact not treating them equally. Which to my mind means that if that law is valid, there must be a legitimate government purpose of some sort in so discriminating. It doesn’t have to be strict scrutiny, but it has to be present. Romer is case law that one cannot discriminate on the basis of sexual orientation without advancing a sound reason for doing so.
Bottom line to me is: Advocates of same-sex marriage do not have to prove that SSM is a right due them under the Fourteenth Amendment. Rather, if marriage is to be recognized by the law of the land, the Equal Protection Clause requires that any body not granting same-sex marriage must be able to show a legitimate government purpose in granting opposite-sex marriages but not same-sex ones.
Again it’s an issue of powers rather than rights. A state unquestionably has the power to regulate marriage. Does it have the power to delimit it to opposite-sex marriages, without falling afoul of the Equal Protection Clause? That’s the question I’m asking.
And I would very much like to see Shodan sort out the Ninth/Tenth Amendment confusion he’s been advancing, and make his stance clearer. Because he can argue coherently for a position I disagree with, once he gets his assertions clear to the rest of us, and I’d like to see what it is he actually is advancing by way of theory. It’s not clear to me yet. What I thought he was saying, he’s made clear he wasn’t. So give him room to express himself more clearly.
Note so. It’s up to the proponents of extending the reach of the 14th amendment to cover sexual orientation to convince the court that that characteristic should be elevated to a higher level of scrutiny than it has thus far been accorded. Your deference to the decsion in *Loving *is one thing, but where is your deference to the decision in *Lawrence *which clearly states that the court has not raised the level of scrutiny in a general way yet? That’s how the process works, even according to the “living constitution” method of interpretation. No? The court defers to the actions of the legislatures unless an argument is made otherwise, and the legislatures of 43 states have spoken thus far to define marriage as between a man and a woman.
I’d also be interested in your response to my post #81. Thanks.
Elvis, I agree it appears to be fruitless discussing this with you, just not for the reasons you offer.
Roll your eyes as much as you’d like. I am specifically stating, once again, that I believe equal protection applies to all people, for all laws. You can take this as your cue to scold me for taking a position I specifically disavowed.
But this could be said of many laws. “Equal” in your sense is being used in some sense of “just,” it seems to me.
Laws against pedophilia (and I am NOT equating pedophilia with homosexuality) discriminate against pedophiles. The pedophile could say that he’s being denied the pursuit of his sexual preference, when those with different sexual preferences are not. That’s not a basis for an equal protection argument.
As I see it there is only one Race and that is the Human Race. We are different shapes, colors etc. and until we can accept that fact there will always be dissentions. There are many cultures,and back grounds, ethnic groups but we are all part of the Human race, all hoping to have a good life for our selves and our families.
I have always found it strange that the KKK people believed in the Adam and Eve Story, but didn’t accept the fact that the Human race started in Africa.
Except that you still propose a way to have it *not * apply in the case of marriage laws, by making up your *own * definitions of words that are inconvenient to your desired conclusion. Why should anyone take that seriously? Note that no other participant here does.
Stop right there. The 14th’s reach was defined to cover “all persons” and “the laws” right in its very text. *All * persons. *The * laws.
There is no “extension” involved, and no need to propound one. It is up to the *state * to explain why the right to equal protection should be *overridden * by other rights in any specific case. It is not required of those who simply point to the text to defend it. I’m quite sure you understand that. Are you, as it appears, simply continuing to argue otherwise just for the fun of it?
John and Stratocaster: I don’t think I’m disagreeing with you at all. We may all three of us need to restate our positions a bit more clearly vis-à-vis each other to engage each other in dialogue. And the fault may be mine.
What I’m saying is that, so far as I know, there is no specific law anywhere which specifically bans same-sex marriages in those words. Rather, there are laws which regulate marriage in a manner such that same-sex marriages are not permitted under them. (Is this making sense? Try a parallel: there is no law explicitly prohibiting a 12-year-old from operating a motor vehicle. There are laws prohibiting operating a motor vehicle without a licence, and laws restricting the age at which one can get a DMV operator’s license, that amount to the same thing, but not that explicit prohibition.)
Okay. Here’s my assertion. A state may, by the Tenth Amendment, regulate any activity under the police power which does not fly in the face of a constitutional guarantee – provided that either (a) that law treats all persons completely equally in terms of what they propose to do under it, or (b) that law’s decision to treat certain person differently bears a rational relationship to a valid governmental purpose. This is the minimal scrutiny test invoked when the suspect classification does not rise to the level of invoking intermediate or strict scrutiny. In other words, the state need not have made the best choice for drawing a distinction but, the courts exercising self-restraint here, they require that the legislature have come up with a classification that has some rational relationship to a valid governmental purpose.
By common consent of the public, for example, a 14-year-old is considered to not have sufficient maturity to contract a marriage, though if a state deems that the adult having custody over that 14-year-old consents, that provides the mature consent required. Therefore, a law setting a minimum age for contracting a valid marriage has some legitimate rational relationship to a valid governmental purpose, the protection of the young.
Saying that equal protection is accomplished by granting the right to contract an opposite-sex marriage to heterosexuals and homosexuals alike, is voiding a valid element of the marriage contract, the idea of mutual consent. I believe it can be granted for the sake of argument that heterosexuals, by and large, are interested in contracting marriage with a person of the opposite sex, while homosexuals by and large are not.
The state may legitimately refuse to get into the marriage-regulating business. There was a point, prior to 1907 in New York State, when it did precisely that. (My maternal grandparents were the last couple validly married without a license in the county we lived in, having married on New Years Eve a few hours prior to the license law going into effect on January 1.) A marriage was a privately-contracted relationship into which the state became involved only when a lawsuit relating to the marriage was filed for some reason.
However, if the state chooses to regulate marriage, as all 50 do at present, it must comply with the rational relationship test. It must have a valid reason, not necessarily the best or even a good one but a rational one, for any restrictions it imposes.
Marriage – not same-sex marriage or opposite-sex marriage but the basic concept – is a “fundamental right” as defined in Loving. Lawrence specifically excluded the question of marriage from the “autonomy in private relationships” issue on which it was decided. I grant that – but I note that that exclusion does not mean it was decided one way or the other, just that Justice Kennedy’s majority opinion specifically excluded it, along with other questions, from the scope of what was addressed. The issue at hand in Lawrence was the constitutionality of anti-sodomy laws, and that specifically was what was addressed. If the court did not claim that gay marriages were validated by that right to autonomy, neither did it invalidate them – it sidestepped that question.
I think that is important because it means that Lawrence is not precedent either way. The issue in Lawrence was whether such relationships could validly be criminalized, not whether they could be contracted in a manner requiring legal recognition. The former and not the latter was what was decided.
Now, Romer on the other hand is precedent, and an important one. Colorado’s Amendment II to the State Constitution specifically and intentionally discriminated against gay people without a rational relationship to a legitimate public purpose, and it was thrown out by SCOTUS.
What I’m saying here is that the burden of proof is on the state to show that a law restricting marriage to opposite-sex relationships bears a rational relationship to a legitimate public purpose. Not necessarily a good one, just one that has some rational basis for existence.
It is not that gay people need to prove that they have a right to marry each other. They have that right under Loving – unless the state has a legitimate public purpose in depriving them of it. That, and not the issue of whether there is a “right to same-sex marriage,” is what’s at issue.
I agree with John back in post #81 that there may be other questions legitimately raised. I agree with Stratocaster that there are other issues that may legitimately be reviewed. But I’m trying to focus on what exactly the application of the Equal Protection Clause to the gay marriage issue is, and the solution that I see is that the burden of proof is on the state, to demonstrate that a one-man/one-woman restriction has a rational relationship to a legitimate state purpose.
With reference to this:
Sexual preference is not at issue, IMO. The grounds on which the state may legitimately regulate marriage is what is at issue. A state may regulate marriages, or anything else, where there is a basic rational relationship to a legitimate public purpose underlying its regulation. If a state chooses to permit only licensed land surveyors to produce legal surveys, there is a rational relationship: only they have been demonstrate to have the training and skills to produce such a survey. If it restricts legal surveys to only three firms, which happen to be comprised of relatives of the leaders of the legislature, there is no longer a rational relationship to a legitimate public purpose.
Your pedophile is not being discriminated against on the basis of his own sexual preference – he is free to masturbate to the mental image of underage children to his heart’s content, so long as that is all he does. His privilege to act on his sexual preference is restricted, not on the basis of who he is, but on the basis that there is a legitimate public purpose – the protection of the young against molestation – in prohibiting them from consenting to sex with him. If Humbert falls in love with Dolores, that’s his problem. Only if the state’s laws permit Dolores’s parents to consent to her marrying Humbert, and they choose to do so, is she free to contract a marriage with him. Because her protection from molestation pre-empts his sexuality.
This whole pedophilia issue can be a major red herring or can help clarify the issue greatly: there is a legitimate public purpose behind the age of consent laws, and grasping that, and the distinction between the pedophile’s wishes, on the one hand, and those of his underage partner and whether or not the latter are legitimately subject to state regulation, on the other, is key to the question. Humbert has the right to wish to contract marriage with Dolores; Dolores does not have the right to consent to that marriage, for her own safety. Right there is where the two issues differ: Adam and Steve both have the right to enter into a mature decision to contract marriage, as does Humbert, but Dolores does not. I trust I’m making sense there, on a very hot-button issue.
Polycarp: Thanks for the well thought-out response. OK, I see that we are about 99.9% on the same page on this. To close that last .1% gap, I’m trying to envision how the arguments would go at a SCOTUS review of the constitutionality of anti-SSM laws-- from the legal counsels of both sides and from the justices themselves. Perhaps I’m reading too much into O’Conners comments in Lawrence, but it seemed to me she was saying that she could be persuaded that other considerations, beside strictly moral disaproval, would be adequate to uphold SSM bans. Given O’Conners more expanisve view of the courts authority than either Kennedy, Scalia, Thomas, Roberts or Alito, I assme their positions will fall even more on the side of judicial restraint than O’Conners’ would.
However, it would be interesting to see how the justices, especially Roberts, would respond to the input from the scientific community. The strongest argument in favor of giving sexual orientation a higher level of scrutiny is that it is biologically determined, and not a “lifestyle choice”, as its detreactors often claim. Of that I’m firmly convinced. And yet, we come to the conclusion that it is biologically determined not so much with positive evidence (eg, no “gay gene” has been found yet) but with the failure to find any negative evidence (ie, that a person’s underlying sexual orientation cannot seem to be changed). This is unlike “race” or ethnicity, which is indisuptably determined by biology-- ie, you get it from your parents. (We may call race a social construct, but a person cannot choose his race independently from the appearance he inherents from his parents. Some people may be able to “pass”, but not many.)
On a personal level, having been convinced that sexual orientation isn’t chosen, I see no reason that I should stop same sex couples from getting married. Where I’m stuck is understanding what I’d do if I were a judge-- go with my own personal understanding or allow the people to make their own rules (even if those rules seem wrong to me). If we were considering anti-cohabitation laws or laws like those overturned by Lawrence, I wouldn’t be so confilcted. Those are laws which infringe on the very basic choices people make in their everyday lives, and don’t invovle the sanction of the state. Marriage, on the other hand is a positive recognition given by the state, and therefore represents the collective recognition of the people-- and they (by and large) are not ready to give that recognition to SSM. If we were at a point where the majority of states had chosen to recoginze SSM, I think a more persuasive argument could be made that the will of the people falls on the side of recognition, and that the constitution should recognize it.
As for the “marriage is a fundamental right” statement, I can’t accept it literally because of the inherent contradictions it generates. I can only accept it as a statement of its time-- a time when no other practical options other than marriage were available to people who wanted to form a union.
Now read this: the power to decide what new rights are to be protected by the federal government is a power.
I think I mentioned this a time or two…
OK, then which American citizens can enter into a same-sex marriage, while others are denied the opportunity to enter into a same-sex marriage?
Quit begging the question. SSM is not a current right under the Constitution, nor have the states or the people exercised their power to enumerate this right and bring it under the protection of the federal government. The Equal Protection clause applys only to enumerated rights.
The Tenth Amendment. I decline to believe that you don’t know what the Tenth Amendment states.
I’m not incorrectly parsing your requests. You are begging the question.
As much as your nonsense deserves.
If the 14th Amendment doesn’t mention anything, why do you believe it establishes anything? Are you really claiming that it doesn’t mention “equal protection” specifically?
This falls under the heading of “too silly to refute”.
Then it will be a simple matter for you to cite the law that establishes SSM. crickets chirping
I think you are arguing that a right is valid if it furthers the cause of justice. I sort of agree with you, but that is not the point at question. I don’t agree that even “just” rights can be imposed on the US by other than the states, or the people (or enshrined in the Constitution).
Polycarp has an unfortunate tendency to misstate the positions of those with whom he disagrees, but I think he has gotten the idea on something that Dewey Cheatham und Howe and I have gone over a few times. An unjust law is not un-Constitutional by virtue of the fact that it is unjust. And an unjust right that is established by the states or the people is just as legitimate as any other.
Thus if the states or the people enshrined SSM as a sacred right of all Americans, then that would be a legitimate right, and subject to the protection of the federal government. And the Fourteenth Amendment would prevent the government from allowing some to engage in SSM and preventing others. But the same is true if the Constitution does get amended to rule out SSM. That may be unjust, but it is still legitimate, if this new right (which would be the right to live in a SSM-free nation, I guess) were established by proper, Constitutional means. I think the problem is that most proponents of SSM realize that the odds, at least currently, of SSM being implemented properly, so as not to violate the Constitution, are slim. Thus they want to make an end run, and short-circuit the whole process and make judges rule that whatever they want is law.
Which, to me, is a violation of the notion of limited government, especially limited federal government.
But basically it goes as it has in this thread.
SSM Proponents: “SSM is a basic right!”
Constitutional Purists: “It is? Where is it mentioned in the Constitution?”
Where the fuck do you get that idea from? Er, make that, cite?
That’s *your * argument, that the 14th doesn’t actually do anything. Glad you now agree it’s silly.
*Every * law that establishes marriage, in *every * state. Since, under the 14th, it can’t be denied to anyone on grounds that do not constitute an overriding state interest (and even you can’t suggest what those might be), they *all * therefore establish SSM. That the law has been applied in violation of the 14th’s guarantee of equal protection is the issue at hand, not this false notion you have that SSM has to be established explicitly first.
Is that clear yet? That the right in question is *not * SSM, but equal protection? Do you grasp that yet?
And you’re complaining about **Polycarp ** misstating opponents’ views? :rolleyes:
No doubt you will. Some ignorance just refuses to be fought.
OK, Shodan, and thanks for the clarification. I have no intent to misrepresent your views; I just didn’t understand them.
You’re right, the power to decide what rights to guarantee is a legitimate state function – where not superseded by the U.S. Constitution. While it’s an ongoing argument here whether there is an implicit right to privacy in the U.S. Constitution, there are states which have specifically guaranteed that. Leafing through state bills of rights, I’m sure we can come up with a number of examples of state guarantees not explicit at the Federal level.
Now, the issue at hand is whether SSM is implicit in the U.S. Constitution in some way. As I noted in post #136, marriage is a fundamental right, established by Loving – until and unless that dictum is overturned by the court. Whether “same sex marriage” is a right is, I think, not at issue – despite the obvious underlying basis of the arguments. To me, this is akin to the following dialogue:
Marriage is, at rock bottom, a contract between two parties that they will live together as a married couple. For reasons too obvious to get into, the state has legitimate grounds for recognizing such contracts, and, implicitly, for regulating which ones it will recognize.
Under the norms of law recognized in U.S. Courts, marriage is a fundamental right. Why? Because Earl Warren said so, and carried a SCOTUS majority with him in doing so. The only ways to reverse that are to amend the Constitution or to get a SCOTUS majority to rule otherwise. You are free not to like this state of affairs, but you are not free to reject it as a matter of law. It is exactly akin to the bizarre decision in Bush v. Gore – the court of last resort has spoken, and the ways to change it are delimited. Whether or not you and I are happy with the results is moot – that is the law of the land.
Okay, now try this: All citizens are entitled to equal protection of the laws – unless there is a rational reason for making a discrimination between them. A law granting women but not men maternity leave, for example, has a rational public purpose, and even being sexually discriminatory has grounds to stand as valid.
What is the legitimate public purpose underlying a requirement that persons contracting a legally recognized marriage must be of opposite sex from each other? Why is that a legitimate public purpose? Nail that one, and you might have support for your perspective.
Yes, the law grants an abstractly equal right to all citizens: the right to marry an unrelated unmarried consenting adult of the opposite sex. What it does not grant is the right to marry the unrelated unmarried consenting adult of one’s choice – if one happens to be gay and in love with someone of the same sex. This is the point behind the Anatole France quote: to say that two things are legally equal when one is a likely happenstance and the other exceedingly improbable is not to have the laws reflect the real world in which they operate.
John: I see your point. And honestly, at that point I want to defer to Bricker or Cliffy or Hamlet for a nuanced analysis of how such arguments might go and what the reactions among the justices might be. It’s nice to know we have been able to close that much of the gap, though!
