# The State of the CIVIL Union Address **URL:** \ **Category:** The BBQ Pit\ **Created:** [January 21, 2004, 1:47pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455 "2004-01-21T13:47:41Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 22, 2004, 10:00pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/121 "2004-01-22T22:00:44Z")
> [@MaxTheVool](#): > > Does it make me vaguely uneasy to live in a country where precious rights are guaranteed only because of bizarre and spastic logic? Yes. But since I already live there, do I want those rights extended to gay people? I do. That’s actually a very rational apparoach to this problem. However, I’m not as sanguine as **MaxTheVool** that this ship has sailed. This Court has shown some signs of reining in federal power. With the right appointments over the next few years, it may do even better. So I’m not ready to abandon the legislative process to the whim of the judiciary just yet. And, frankly, same-sex marriage is just the sort of issue that can fire up people enough to overcome the usual apathy that sometimes sinks constitutional amendments. So while I agree we’re the victims of tortorous logic, and have been for some time, I do not agree that the issue is foreclosed. - Rick ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 22, 2004, 10:25pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/122 "2004-01-22T22:25:17Z")
> [@Dewey Cheatem Undhow](#): > > No one’s given an answer to that question because, believe it or not, it isn’t terribly relevant. We aren’t discussing the policy rationales behind gay unions; we’re discussing the propriety of various mechanisms for bringing those policies into being. > > Myself, **Bricker** , and others are basically saying “the ends don’t justify the means.” > > **Homebrew** , et al, are basically saying “by any means necessary.” > > That is the critical fault line in this discussion. Actually the question is entirely relevant because the fault line is not as you state. The real fault line is where we consider the basis of Freedom. I consider Freedom and Liberty to be personal. You seem content to allow the Tyranny of the Majority. In my world-view the state must give a relevant reason to infringe on personal liberty that meets “strict-scrutiny”. I lament the fact that you and **Bricker** are willing to allow Civil Liberties to be tossed aside on such a weak reasoning as the “rational basis test” ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 22, 2004, 11:52pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/123 "2004-01-22T23:52:17Z")
> [@Homebrew](#): > > Actually the question is entirely relevant because the fault line is not as you state. The real fault line is where we consider the basis of Freedom. I consider Freedom and Liberty to be personal. You seem content to allow the Tyranny of the Majority. _Au contraire_; the fault line is _exactly_ where I described it. You are willing to term something as “unconstitutional” not because it actually violates some provision found within that document, but rather simply because you think it is wrong. What the constitution actually says is of little relevance to you; you think it appropriate for the courts to invalidate laws based on nothing more than your own sense of right and wrong. In short, you are willing to use any means necessary to accomplish your goals. Your own sense of moral certitude is the only justification you feel you need. **Bricker** and I respectfully disagree with that view. The ends, we feel, do not justify the means. Limits on the people’s power to shape their own society should only be honored if the people themselves have agreed upon those limits in advance. That means interpreting the constitution in accord with its text and the understandings of those who crafted it. To do more is to steal from the people the right to govern themselves. A government is only legitimate if it derives from the consent of the governed. Unbridled judicial power abrogates that consent. It ought not stand. > [@](#): > > In my world-view the state must give a relevant reason to infringe on personal liberty that meets “strict-scrutiny”. I lament the fact that you and **Bricker** are willing to allow Civil Liberties to be tossed aside on such a weak reasoning as the “rational basis test” You _are_ aware that the terms “strict scrutiny” and “rational basis” are not **Bricker’s** invention, and are simply tests established by the courts for equal protection cases, right? When **Bricker** talks about “rational basis,” he’s just accurately reporting the current state of constitutional jurisprudence. ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [January 23, 2004, 12:01am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/124 "2004-01-23T00:01:34Z")
> [@Bricker](#): > > That’s actually a very rational apparoach to this problem. > > However, I’m not as sanguine as **MaxTheVool** that this ship has sailed. This Court has shown some signs of reining in federal power. With the right appointments over the next few years, it may do even better. So I’m not ready to abandon the legislative process to the whim of the judiciary just yet. > > And, frankly, same-sex marriage is just the sort of issue that can fire up people enough to overcome the usual apathy that sometimes sinks constitutional amendments. So while I agree we’re the victims of tortorous logic, and have been for some time, I do not agree that the issue is foreclosed. > > - Rick The problem I see with that is that once we’ve opened the door even partway, and established a precedent in which SCOTUS is effectively claiming to find constitutional support for what are basically just ethics (ie, interracial marriage and abortion and consensual sodomy are constitutionally protected), how do you pick another such situation, particularly one that is quite similar to others that have already been ruled upon, and decide that this is where you’re going to make your stand for a return to strict interpretation of the constitution? Don’t you think it’s a bit unfair that the mixed race couples get to marry, but due to the fact that Bricker has suddenly decided to plant his foot and stem the tide of judicial inaccuracy, the gay couples don’t get to marry? If you really want to address this issue, and I think it’s a fine one to address, I think the right way to do it is to support an amendment clearly stating what has become the de facto law of the land, namely, that there is a constitutional right to privacy (plus perhaps other similar and analogous things). * * * Oh, and on previewing, I see this from **Dewey Ceatem Undhow** in response to **Homebrew** : > [@](#): > > In short, you are willing to use any means necessary to accomplish your goals. I think that’s a potentially inflammatory overstatement… unless you honestly believe that **Homebrew** would happily go around slaughtering innocent babies, raping virgin forests, and poisoning kittens to accomplish his goals. He may find his own interpretation of the American ideal of freedom more important than the text of the constitution. That doesn’t make him Machiavelli. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 23, 2004, 12:34am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/125 "2004-01-23T00:34:02Z")
Thank you to both **Bricker** and **Dewey** for clarifying the meaning of the term “rational basis”, in the context of judicial review. While emotionally, I prefer a meaning that coincides with my layman’s understanding of the words in everyday usage, I concede that, the explanation given being accurate, I can find no inconsistency in **Bricker’s** position as stated. ---
**Author:** ![Deucalion](https://avatars.discourse-cdn.com/v4/letter/d/8baadc/32.png) [@Deucalion](https://boards.straightdope.com/u/Deucalion)\ **Post date:** [January 23, 2004, 3:57am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/126 "2004-01-23T03:57:15Z")
> [@Shodan](#): > > I don’t see how this addresses the problem of judicial activism. It wouldn’t be meant to stop activism itself, but if someone’s main objection to such a decision is grounded in the notion that the constitution doesn’t secure that right, then my amendment would remove that objection by clearly securing equality. > [@Shodan](#): > > Once you have abandoned the idea that the Constitution means what it says, in favor of the idea that it says whatever you want it to say, no amendment or lack of an amendment is going to stop judges from interpreting the Constitution to say whatever they feel like. > > … > > If you can interpret the Constitution as saying anything at all, there is equally no way to prevent the Court from saying that the equal protection clause requires that gay marriage be outlawed. I do not doubt that there is precedent which says that the equal protection clause would not apply and that you agree with such precedent, but on both literal and purposive approaches I think it should. And because of that I do not think that a decision in favour of a gay marriage right on that basis would be as divergent, if at all, as you seem to think. > [@Shodan](#): > > You are assuming, perhaps unconsciously, that views in the present are not equally affecting the decision to interpret gay marriage as being required by the Constitution. How do we know that in the future, it will not be seen as a quaint and outmoded notion that gays can form stable relationships? No, it’s quite obvious that current views would be weighing down on any decision, it’s unavoidable. If such an incredibly unlikely thing were to be found to be true then it would provide a good reason for marriage not to be extended to gay couples and I wouldn’t see any problem with a future court overturning the previous decision if that was the ratio. Since homosexuals can form stable relationships it doesn’t matter. > [@Shodan](#): > > The question is not whether or not human rights should take precedence. The question is, at what level should decisions about matters clearly not addressed by the Constitution be made? > > No evidence suggests that the Constitution was ever meant to address such questions - the whole purpose IMO of the Tenth Amendment is to shift such decisions away from the federal government, whose role in the lives of its citizens was meant to be limited. > > This is another step in moving responsibility for everything to Washington DC. And it is entirely possible to resist this tendency (as I believe **Bricker** and others wish to do) based on a desire to limit the scope and the power of the federal government without being a raving homophobe. It seems obvious to me that if there is a right not directly or indirectly (gay marriage?) protected by the Constitution and that issue is naturally present among all groups of people or at least all Americans then it can be addressed at the federal level, otherwise just at the state level or lower. By that reasoning human rights should be constant throughout and so would fall within the scope of the federal government for protection if necessary. It clearly is necessary since as you noted, the states aren’t going to remove the inequality, at least not anytime soon. > [@Shodan](#): > > This seems to me to be pretty much as pressing as any other states’ rights issue. That is, does the Constitution require the federal government to impose on the states anything that five justices on the Supreme Court think is a good idea? Can the Supreme Court overrule state budgets at will, for instance, if they think the state legislators’ priorities are misguided? Can the Supreme Court review all state-level elections to be sure that no discrimination is taking place, and appoint officials if they feel that it was? Is there ever a point at which any state can say to the feds, “This is none of your business”? This isn’t some arbitrary notion and I don’t think any decision from SCOTUS would be based on arbitrary conclusions either. There’s a huge difference between interpretating the constitution liberally to protect another right and SCOTUS taking over the country; there is plenty of place for states’ rights to reside in between. > [@Shodan](#): > > I am not a moderator. But I suggest that you read the sticky at the top of this forum titled “Wishing Death on Someone”. And please refrain from further such. I apologize to those who do fit the criteria then, it’s not good for me to be breaking the rules on my first post. I took the thread title in a strict sense and I should have considered that the rule could have a broader scope than just what I had seen it used for so far. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 23, 2004, 5:05am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/127 "2004-01-23T05:05:01Z")
> [@Dewey Cheatem Undhow](#): > > _Au contraire_; the fault line is _exactly_ where I described it. > > You are willing to term something as “unconstitutional” not because it actually violates some provision found within that document, but rather simply because you think it is wrong. . You are misstating my position. The provision \*_is_ amendment IX, which you so blithly dismiss. I’ve not consented to having my marriage options curtailed simply because you find it icky. The Loving family did not consent to having their marriage deemed illegal simply because they were a mixed couple. I happen to think an individual’s Liberty is more important than a simple majority’s opinion on what is moral. “Penumbras” protect my Liberty. The Consititution is clear. Unless the government is given specific license to govern an issue, then it must give a compelling reason to do so. What you are calling “any means necessary” is simply the Court fulfilling it’s duty as charged by the Constitution you claim to laud. The Court correctly ruled in Loving and in Lawrence that the Government overstepped it’s bounds. It was trying to infringe a right that it was not given the authority to infringe. You and **Bricker** seem so fixed on “original intent” that you overlook what the intent was. I’ll give you a hand: > [@](#): > > We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and **secure the blessings of liberty to ourselves and our posterity** , do ordain and establish this Constitution for the United States of America. Perhaps you recognize it. That is the intent. Liberty requires the Court to protect minorities from the tyrrany of the majority. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 23, 2004, 7:46am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/128 "2004-01-23T07:46:19Z")
That was actually quite good, **Homebrew**. However, if you’ll take a bit of constructive criticism from someone on the same side in this argument, I’d like to ask you to cease and desist posting things such as: > [@Homebrew](#): > > I’ve not consented to having my marriage options curtailed simply because you find it icky. See, unless you can back it up with quotes from **Dewey** and **Bricker** , flinging in that accusation works against you, because it gives them the opportunity to draw attention away from the substance of your argument in favor of accusing you of putting words into their mouths. In your own inner dialogue, you may feel free to extrapolate from a preference for civil unions without the word “marriage” to an “ick” factor, and if it helps you generate the passion to argue the constituional issues, more power to you. But the moment you insert that extrapolation into your posts, without rock-solid documentation, you’re just leading with your chin, buddy. This works on the same principle I was alluding to when I remarked on the discipline the Bush White House is exercising wrt public statements on the Musgrove amendment. As long as **Dewey** and **Bricker** are exercising a similar level of discipline in avoiding documented association with the “ick” factor, you’re stuck with respecting the fact that they are successfully distancing themselves from it. You violate this principle at your peril, and risk allowing your opponent to redirect and manipulate the focus of your responses, and ultimately, the focus of your side of the discussion. Eyes on the prize, baby. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 23, 2004, 7:55am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/129 "2004-01-23T07:55:25Z")
Dang it, I thought I had hit “preview”, not “submit.” Oh, well. I wanted to add the disclaimer that nothing in the above post should be construed to mean that I believe **Bricker** and/or **Dewey** are harboring any “ick” factor motives. I take them both at their word that they are not. I just wanted to make that clear. ---
**Author:** ![Largo62](https://avatars.discourse-cdn.com/v4/letter/l/45deac/32.png) [@Largo62](https://boards.straightdope.com/u/Largo62)\ **Post date:** [January 23, 2004, 9:07am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/130 "2004-01-23T09:07:34Z")
> [@athelas](#): > > \>Why would our leaders want to “chart the course” of something that has > \>absolutely nothing to do with the general populace? This is a personal decision > \>that has absolutely no effect on anyone but the people involved. > > Why is suicide illegal? It has no effect on anyone besides the person who commits it, ne? It should be their choice. No effect? Do you have parents? Siblings? Kids of your own? While I can agree that it’s an individual’s choice, only someone entirely bereft of any human connection could believe it affects no one but the person who commits it. > [@](#): > > _Why is pedophilia with mutual consent illegal? It has no effect on anyone except for the people involved. What, children aren’t mature enough? That’s obviously a holdover from our intolerant past. It’s their own choice._ Please tell me that this was a lame attempt at irony, because if you are serious you’re either a fucking moron, a closet pedophile or a sociopath. > [@](#): > > \>In 100 posts no one has yet given a satisfactory answer to the simple > \>question: in what way does recognizing the union of a man and another man > \>have any effect whatever on the separate union of a man and a woman? > > _It weakens the definition of marriage. Once gay marriage is legal, so would polygamy (same arguments used) , pedophilia (takes some time, but it is a logical extension), etc. will be much closer to legalization._ In what way does it weaken the “definition” of marriage? Your statement that it does is not an answer, since you can’t show any evidence that it’s true. Polygamy has nothing to do with this argument, since it is already a crime in every state. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 23, 2004, 2:07pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/131 "2004-01-23T14:07:04Z")
> [@Tars Tarkas](#): > > > [@Shodan](#): > > > > Thus no state may be allowed to violate the rights of the majority, and all laws establishing gay marriage or similar unions are null and void." > > How is recognizing gay marriage violating people’s rights again? It doesn’t really make any difference. Once you have established the principle that “it doesn’t matter what the Constitution says, anything that five justices of the Supreme Court think is a good idea is mandatory”, you have given up another control on the power of our federal government. The Supreme Court can _always_ come up with a rationalization that justifies some extension of their power. They’re lawyers - picking a position and arguing plausibly in its favor is what they do. And there is no higher court to which you can appeal. If they are not constrained by the Constitution, they are not constrained at all. Hence this (in my view ill-advised) attempt to forestall the attempt to impose gay marriage on the US by judicial fiat. They would like an amendment passed to prevent the Court from saying that the Constitution requires one more thing that it never addresses in the text. And I think this will be unsuccessful. A Court that can interpret the Second Amendment to say “the right to keep and bear arms can be infringed” or which ignores the Tenth Amendment pretty much altogether is not a Court that is going to be stopped from getting something that it really wants by another amendment. > [@Deucalion](#): > > It seems obvious to me that if there is a right not directly or indirectly (gay marriage?) protected by the Constitution and that issue is naturally present among all groups of people or at least all Americans then it can be addressed at the federal level, otherwise just at the state level or lower. And it seems obvious to me that the Tenth Amendment is meant to say that rights not directly or indirectly protected by the Constitution should be addressed by the states, or by the people (via referendum or vote of Congress or something similar). > [@Duecalion](#): > > This isn’t some arbitrary notion and I don’t think any decision from SCOTUS would be based on arbitrary conclusions either. There’s a huge difference between interpretating the constitution liberally to protect another right and SCOTUS taking over the country; there is plenty of place for states’ rights to reside in between. I think this is an arbitrary notion, in that it is not addressed by the Constitution. Defining marriage is simply not included among the proper roles of the federal government. Once you accept the principle that the Supreme Court’s job is to think up things they want to see happen, call them “new rights”, and impose them against the will of the majority, you have almost completely abandoned the notion of limited government. We are supposed to be a nation of laws, not of men. If it does not matter what the Constitution says, we have abandoned the supreme law of the land in favor of rule by five old geezers in black robes. Better you should read **Bricker** ’s excellent post (or **Dewey** or **MaxtheVool** ) on the dangers of “give me what I want and don’t worry about how I get it”. I believe very strongly in the Founding Father’s idea of limited government. And _timeo Danaes et dona ferentes_, which is why I don’t support an amendment about defining marriage either. > [@Deucalion](#): > > I apologize to those who do fit the criteria then, it’s not good for me to be breaking the rules on my first post. > I took the thread title in a strict sense and I should have considered that the rule could have a broader scope than just what I had seen it used for so far. Thank you. Regards, Shodan ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 23, 2004, 2:29pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/132 "2004-01-23T14:29:31Z")
**Homebrew** : you do understand that your concept of “Unless the government is given specific license to govern an issue, then it must give a compelling reason to do so,” is NOT an accurate statement of the law, correct? I know it’s what YOU think the situation should be; I’m asking if you understand that it’s NOT what the law currently says. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 23, 2004, 2:56pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/133 "2004-01-23T14:56:33Z")
> [@Bricker](#): > > **Homebrew** : you do understand that your concept of “Unless the government is given specific license to govern an issue, then it must give a compelling reason to do so,” is NOT an accurate statement of the law, correct? I know it’s what YOU think the situation should be; I’m asking if you understand that it’s NOT what the law currently says. I fully understand that the concept has been abused throughout history. That doesn’t mean it must continue to be abused. I see decisions such as _Lawrence_ as a step in acknowledging that concept and a movement towards a more libertarian nation. (Although I’m sure Libertarian might scoff at that idea.) I think you and I essentially understand one another’s position. We just have widely divergent views on what Liberty means. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 23, 2004, 4:45pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/134 "2004-01-23T16:45:09Z")
> [@Homebrew](#): > > I fully understand that the concept has been abused throughout history. That doesn’t mean it must continue to be abused. I see decisions such as _Lawrence_ as a step in acknowledging that concept and a movement towards a more libertarian nation. (Although I’m sure Libertarian might scoff at that idea.) I think you and I essentially understand one another’s position. We just have widely divergent views on what Liberty means. We do. I fear continuing down the slope of letting the Supreme Court (and lesser federal courts) decide these things, and I believe you should as well. If Bush is re-elected, and gets to appoint replacements for Ginsburg, Souter, and O’Connor, are you still going to be so in favor of letting the Supreme Court decide these issues? I am suggesting that, as a method, legislatures are better than judges when it comes to making sweeping new law. I am further suggesting that if you embrace the judge-made law when it agrees with you, and reject it when it doesn’t, you’re not doing much in terms of creating a viable system – you’re just saying, in essence, “My way is right, no matter what.” That may be true, but we cannot run a country like that. We need to have a system we can ALL rely upon. If you rely on judge-made law, you may not like what the next few years have in store. - Rick ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 23, 2004, 4:53pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/135 "2004-01-23T16:53:52Z")
> [@MaxTheVool](#): > > Don’t you think it’s a bit unfair that the mixed race couples get to marry, but due to the fact that Bricker has suddenly decided to plant his foot and stem the tide of judicial inaccuracy, the gay couples don’t get to marry? Far be from me to speak for **Bricker** , but I’d argue that _Loving_ was correctly decided on equal protection grounds, and that the alternative rationale proffered in that decision – a due process “right to marry” – was both incorrect as a matter of constitutional law and unnecessary to the outcome of the decision. > [@MaxTheVool](#): > > I think that’s a potentially inflammatory overstatement… unless you honestly believe that **Homebrew** would happily go around slaughtering innocent babies, raping virgin forests, and poisoning kittens to accomplish his goals. He may find his own interpretation of the American ideal of freedom more important than the text of the constitution. That doesn’t make him Machiavelli. Fair enough. But the fact remains that, at the end of the day, what **Homebrew** is saying is that the ends justify the means – that judicial fiat is OK so long as it comports with his own internal notions of metaphysical justice. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 23, 2004, 5:19pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/136 "2004-01-23T17:19:13Z")
> [@Homebrew](#): > > You are misstating my position. The provision _is_ amendment IX, which you so blithly dismiss. I’ve not “dismissed” the ninth amendment; as I described above, it does have a place in our constitutional scheme, not as a source of substantive rights but rather as a bulwark preventing _other_ sources of rights (state constitutions, state and federal statutes, etc) from being invalidated. And, of course, I have the pesky advantage of having facts on my side: the ninth amendment alone has never been found to be the source of substantive rights. > [@Homebrew](#): > > I’ve not consented to having my marriage options curtailed simply because you find it icky. Where, pray tell, did I say I found the idea of gay marriage “icky”? > [@Homebrew](#): > > The Loving family did not consent to having their marriage deemed illegal simply because they were a mixed couple. The Loving family also didn’t make any arguments based on the ninth amendment. And the Loving family had the advantage of a textually clear basis upon which to base their arguments: the equal protection clause, of which even the most narrow reading prohibits the government from making distinctions based on race. > [@Homebrew](#): > > I happen to think an individual’s Liberty is more important than a simple majority’s opinion on what is moral. “Penumbras” protect my Liberty. The problem with such broad, sweeping words like “Liberty” is that they have wildly divergent meanings to different people. Most laws, no matter how benign, can be cast as infringement on individual liberty depending on whose ox is being gored. Your standard is no standard at all – it is, rather, a blank check to the judiciary to create and enforce their own policy preferences. > [@Homebrew](#): > > The Consititution is clear. Unless the government is given specific license to govern an issue, then it must give a compelling reason to do so. Again: this standard is no standard at all. It’s nuts. Claiming government must claim not only a reason, but a _compelling_ reason to justify every rule is absurd. Does this translate into, say, a right for me to walk around in public naked? I mean, I guess the government has an aesthetic interest to protect in keeping my hairy ass covered, but is mere aesthetics a “compelling” reason? Your proffered standard wouild invalidate a whole hell of a lot of laws. > [@Homebrew](#): > > You and **Bricker** seem so fixed on “original intent” that you overlook what the intent was. I’ll give you a hand: (The Preamble) > Perhaps you recognize it. That is the intent. Liberty requires the Court to protect minorities from the tyrrany of the majority. The Preamble is exhortative, and not a source of substantive law. Virtually anything could be justified under its sweeping prose. Does, for example, the intent to “insure domestic tranquility” translate into power to create a police state? I hardly think so, and I suspect you don’t either. ---
**Author:** ![MrVisible](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@MrVisible](https://boards.straightdope.com/u/MrVisible)\ **Post date:** [January 23, 2004, 5:26pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/137 "2004-01-23T17:26:06Z")
Well, thanks for stating your positions, guys. Not only do we now understand a bit more about how the interpretation of a document can lead to hilarious hi-jinx and the infringement of the rights of human beings, but we have an excellent example to clarify the most difficult point on the Dungeons and Dragons alignment wheel. Thanks for showing us what Lawful Evil really means. ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [January 23, 2004, 5:59pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/138 "2004-01-23T17:59:21Z")
> [@Dewey Cheatem Undhow](#): > > Far be from me to speak for **Bricker** , but I’d argue that _Loving_ was correctly decided on equal protection grounds I quoted the 14th amendment a few posts up. Can you explain to me how a rational and literate person, reading the text of the 14th amendment, would conclude that any part of it, particularly the Equal Protection clause, grants rights to racial minorities, but does not do the same based on sexual orientation? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 23, 2004, 6:02pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/139 "2004-01-23T18:02:08Z")
> [@Bricker](#): > > I am suggesting that, as a method, legislatures are better than judges when it comes to making sweeping new law. In general I agree with this. However, the Courts are there explicitly to protect minorities when the legislatures overstep their bounds. > [@Bricker](#): > > If you rely on judge-made law, you may not like what the next few years have in store. And if the majority is given free reign, far too often I stand to suffer more. The Court protects me more often than “judge-made law” infringes on my rights. History teaches us that Legislatures, led by majorities, are far more likely to infringe up on the rights of the minorities than The Courts are. If that were not so, then there wouldn’t have been a need for the decisions in _Loving_ and _Lawrence_. You bring up _Bowers_ as an ominious example of how I could suffer at the hands of the court; but let us not forget that it was the majority led legislature that created the onerous laws to begin with. A Court stacked with Bush nominated judges would indeed be scary for me. However unless the Legislature passes laws that infringe upon basic Civil Liberties to start with, that Court will not have the chance to uphold those laws. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 23, 2004, 6:28pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/140 "2004-01-23T18:28:08Z")
> [@MaxTheVool](#): > > I quoted the 14th amendment a few posts up. Can you explain to me how a rational and literate person, reading the text of the 14th amendment, would conclude that any part of it, particularly the Equal Protection clause, grants rights to racial minorities, but does not do the same based on sexual orientation? It’s essentially a framer’s intent argument: the Civil War Amendments were passed with the principal purpose of protecting blacks. The equal protection clause can’t be read completely literallly, as that would invalidate every law ever written – the law depends on the classification of things and differing treatment based on those classification. We treat convicts unequally from those who have not been convicted of crimes. We treat children unequally from adults. We treat people with high incomes differently than those with low incomes for tax purposes. Because the equal protection clause can’t be taken completely at face value, we have to interpret it somehow. The only way to do so while simultaneously respecting notions of the consent of the governed is to use some variant of framer’s intent. Ergo, we have an equal protection clause principally devoted to fairness in matters of race. [Previous page](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455.md?page=6) [Next page](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455.md?page=8)