What authority? The US Constitution, Amendment 10. The Constitution doesn’t explicitly forbid you from marrying your sister, so that is left to the state to decide.
You’re missing the point, and I can’t help but think it’s deliberate. Otto has given the response I would’ve given to your posts, and he’s said it better than I could have. But to reiterate: none of the examples you mention are cases of inventing new rights and awarding them to people. They are claims that the rights existed all along and are making it explicit that the government is not to deny those rights.
Just look at the wording of all these “defense of marriage” acts that are getting passed. They explicitly define marriage as existing between a man and a woman. By your logic, every marriage performed before that point was invalid, because nobody really understood what marriage is.
But that same authority gives the states the right to forbid same-sex marriage.
So what is effective limit of judicial power when invoking the Fourteenth Amendment? I want to limit it to historical context. You want to limit it to… what?
Except that the right to marry has been found to be fundamental under the federal constitution, and around and around we go.
I have confidence in the system, that abusive judicial rulings will be checked by the legislature and executive. You seem to have less confidence in the system. You have consistently couched your objection to judicial requirement of equal protection of the marriage laws in terms of process, but your unalterable opposition to equal marriage protections for same-sex couples leads me to believe that you’re using process as a smokescreen for an otherwise unjustifiable act of discrimination.
Which is all well and good for you, I suppose, but I prefer intellectual honesty.
Yes, but that’s not what you were saying earlier. You were making it sound as if a group of judges were just making up the idea of same-sex marriage out of thin air and trying to force it through the system without giving the people a chance to vote on it. I’m saying that the right to same-sex marriage exists until a law comes along that forbids it. It’s not a fight to be given the right to marry, it’s a fight to keep from having that right explicitly taken away.
That distinction is crucial, because it gives the people who want and deserve a same-sex marriage the chance to appeal that law. You can’t appeal a law that infringes on your rights if people insist on telling you that you never had the right to begin with.
Authority? The fact that for thousands of years, consenting adults have been falling in love (optional) and getting married. What authority can you point to that’s in support of the notion that men and women can be married? Does that authority explicitly say that marriage is only between a man and a woman? If so, then why were Bush’s proposed amendment, and the various “defense of marriage” laws being proposed and passed? Just out of an “orgy of redundancy?”
If that were true, you’d be in great shape: you could invoke the “firmly rooted in our nation’s history” clause and that would be that.
But in fact, it’s true that for thousands of years, persons OF THE OPPOSITE SEX have been falling in love (optional) and getting married. You cannot point to thousands of years of tradition in support of same-sex marriage, because it doesn’t exist.
The same one you just tried to invoke: the fact that marriage between a man and a woman is firmly rooted in our nation’s history.
Bush’s amendment would have, in my view, been exactly that: an orgy of redundancy, as are the DOMA laws. But they are being passed in an environment which does not universally accept my view of the law, an environment in which substantive due process is a recognized analytical tool and courts are willing to reach much farther than I think they should. The backlash against thissort of judicial legislation are the laws and amendments you refer to above.
It was kind of a stealth proposition. I live in San Leandro, a relatively conservative town, and a few people had signs in their yards in support of the thing, but other than that I don’t think it got very much attention in the major media or anything.
You say, “in fact.” I see “by your interpretation.” To you, for whatever reason, OF THE OPPOSITE SEX is the crucial and defining part of marriage. I see the hundreds of other benefits and components of marriage as being what marriage is all about. I see OF THE OPPOSITE SEX as being as arbitrary as saying “persons OF THE OPPOSITE SEX AND THE SAME ETHNIC BACKGROUND AND SKIN COLOR AND WHO ARE ALSO CHRISTIANS have been falling in love and getting married.”
I’m pointing to thousands of years in tradition in support of marriage. Period. You sure as hell can’t tell me that that doesn’t exist. The people who are deciding to get married are just a technicality. Some technicalities – consanguinity, age of consent – have clear detriments to the union and the society. Others – ethnicity, sexual orientation, religion or lack thereof – don’t, and people shouldn’t give a rat’s ass about it, and sure as hell shouldn’t be passing laws trying to ban it.
Would you say that the right to enter into a contract with another person, regardless of the gender of either person, is “firmly rooted in our nation’s history?” If so, how is marriage different from any other legal contract
And on the topic of “firmly rooted in our nation’s history,” that was among the rationales offered up by defenders of sodomy laws and in fact was one of the reasons given by SCOTUS in upholding sodomy laws in Bowers (turned out they were wrong on the history which the majority acknowledged in Lawrence but oh well). Perhaps “that’s the way it’s been” should not be considered a good enough reason to continue doing a wrong thing.
There are many differences between marriage and a generic civil contract. Contracts must have a definite duration; marriage is agreed to in perpetuity. Contracts must spell out all their terms; marriage confers rights and obligations that cannot be changed – unless, of course, a separate contract is entered into. Marriage is a legal status which requires the approval of the state; contracts do not.
So – yes, the right to contract with any other person is generically a right rooted firmly in our nation’s history, but marriage is quite different.
Well, “the way it’s been” is the basis for the concept of stare decisis. Shall we relitigate the exclusionary rule?
The way it’s been ought to be a strong guide for the judiciary. If it’s a wrong thing, the legislature should step in to fix it.
Mix concepts much? Or do you feel you’re losing the “firmly rooted in the nation’s history” argument so you throw in stare decisis as a distraction?
I didn’t say jettison looking at history. What I said was that when addressing an injustice, “there’s always been that injustice” is or should be insufficient to maintain it.
And if the legislature refuses to fix it and the wrong thing violates the constitution then the courts should step in to fix it.
No, in fact – YOU are the one mixing concepts when you characterize the Lawrence court’s comments on “firmly rooted.”
The Lawrence court did not use the “firmly rooted” language to talk of a fundamental right – instead, they talked about whther the criminal prohibition of sodomy as applied against homosexuals had a long history, and concluded - contrary to the Bowers Court - that it did not. That’s all well and good, but irrelevant to the point I’m making. I’m talking about the existence of marriage as between a man and a woman being firmly rooted in the nation’s history. Kennedy’s opinion in Lawrence is talking about the history of the criminality of sodomy. The Lawrence opinion does not vitiate my point.
…and the wrong thing violates the constitution…
That is the subject under debate. I contend that this thing, wrong though it may be, does NOT violate the Constitution.
This is not a hijack, I swear: it’s a question that may throw some light on what our respective positions our with regard to the federal constitution.
SO there’s firmly rooted and then there’s firmly rooted. What-fucking-ever.
I contend that it does, and I further contend that neither of us is going to change the others’ mind on the topic so I intend to waste no more of my time trying to teach this particular pig to sing.
In other words, it’s different because it’s different. Thanks for clearing that up.
You keep saying that marriage is defined as being between a man and a woman. We keep saying that that’s an unnecessarily exclusionary interpretation of the institution, and that making a distinction based on sex is arbitrary, and proponents of same-sex marriage aren’t asking for anything “new.” You respond by saying that it’s that way because it’s always been that way.
If the sex of the participants is the crucial definition of the “right,” then how does that apply to women’s suffrage? Traditionally, women were denied the right to vote based solely on their sex. Did the 19th Amendment suddenly make up a new right and suddenly grant it to women? If so, then why is the wording of the amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Sounds to me as if they’d always had that right by virtue of the “all men are created equal” philosophy, and the amendment was necessary to prevent the states from removing that right?
Would it have been part of the normal judicial process to create a secondary voting status for women? That bestows all the same voting privileges as a “real” vote, but isn’t called as such? Would it have been acceptable to leave it to the states to decide, creating a situation where some states allow women to vote but others deny it because of the will of the people?
And since this post is sounding too much like a Great Debates post and not a Pit post: How much longer are people going to keep fucking arguing semantics and precedent and tradition and family values and “these things time,” to try and distance themselves from the core issue and admit that there’s an injustice here?