In the bit you were responding to, I was giving my read of the piece from the National Review blog. As I’ve noted, my personal view is that any amendment would be inappropriate (though I think there are reasonable arguments for a Bricker amendment).
I would support a Bricker amendment over your proposal because this is the kind of social policy question that, in our system of federalism, ought to rest with the states. I don’t think there is a universal answer to this issue. What’s right for New York might not be right for Alabama. Different states should be allowed to try different solutions; solutions which succeed will be widely adopted, and solutions that fail will be largely discarded. It’s a good system, and we should let it work.
I disagree. Large majorities do not favor gay marriage (though there is more support for civiil unions), and people are pretty responsive to the argument that they should have control over how things are done in their own neck of the woods. I thus think a Bricker amendment would have more traction with the electorate than your proposal (though, again, I favor avoiding amendment entirely).
Gay marriage is already “prohibited by law,” though that may change shortly in Massachusetts. Permitting gay marriage would be a change in the status quo, and burden of proof falls on those advocating change.
Also note that everyone agrees that the Constitution “permits” gay marriage. If a state’s legislature wanted to pass a statute permitting gay marriage, nothing in the federal constitution would prevent that act. The only question is whether the Constitution (and/or the state cosnstitutions) mandates gay marriage. And again, the burden is on proponents of that novel interpretation to support their claim.
Okay, if it is prohibited by law in Massachusetts currently (or was), can you provide me with what law it was that prohibited it?
And on your second paragraph - whoa, Dewey, slow down! I think “the only question” at this point is whether a Federal Marriage Amendment is a good thing or not. NOBODY is suggesting the adoption of a marriage amendment expressly mandating gay marriage. The people who wish to re-write the Constitution are the forces of darkness who are promoting this abomination, the Federal Marriage Amendment. Thus, the burden remains on them.
You are aware that the highest court in Massachusetts recently ordered the Massachusettls legislature to modify that state’s law on marriage (either by extending full marital rights to gays or providing for civil unions) on the grounds that the state constitution’s equal protection clause demanded the change, aren’t you? You should read the opinion.
Simply put, if Massachusetts law didn’t prohibit gay marriage, there would be no need for the court to order the legislature to craft new rules – instead, the court could have simply ordered the state to enforce the marriage law in a way that included gays.
You miss my point entirely. The concern of those favoring a Bricker-style amendment is that without an amendment making the issue crystal clear, the federal judiciary will eventually find a right to gay marriage in the federal constitution. A Bricker amendment would clarify that this is an issue that is to be left to the states.
I haven’t seen anyone in this thread who approves of a Musgrave-type amendment that would outright outlaw gay marriage. If you’re going to participate in the thread, perhaps you should only argue with positions that have actually been set forth, instead of setting up and knocking down strawmen.
I think you’ve worded that badly. The question is whether the Constitution or the state constitutions allow states to prohibit gay marriage while allowing straight marriages. If gay marriages were mandated, then everyone would have to be in one, and I don’t think that would work.
Much better. Dewey always gets carried away with his legal-wordiness and forgets to write in plain English, and this leads to mischaracterization, such as what this whole debate is about.
It is NOT that gay rights advocates want to force gay marriage down people’s throats (“mandate” - great magazine, by the way). Rather, it is about 1. if we should re-write the US Constitution to take existing rights AWAY from the American people; 2. what form should legally-sanctioned gay relationships take (marriage, civil union, or something else); and 3. are laws regarding marriage contracts, as they exist today, illegal in that … and whatever the argument comes to be, whether discriminating against homosexuals is gender discrimination or violates a right to privacy or whatever.
Dewey’s wording makes it appear that those in favor of gay marriage are the activists here, demanding that they be granted new, special rights. This is not true.
The right to marry already exists for heterosexuals and homosexuals alike. The laws prohibiting gay marriage are illegal, that’s becoming clear, and this is why the Christian fundamentalists are getting activist on the rest of us, demanding that we change our way of life to conform with THEIR vision of how things SHOULD be.
So the burden of proof lies ENTIRELY with those advocating any kind of amendments - Musgrave; Bricker; Santorum; Dewey; whatever.
Well, that’s not true. The courts don’t currently recognize gay marriage as a right, so laws prohibiting gay marriage aren’t currently unconstitutional. What some Christian fundimentalists and some other people are afraid of is that the courts will rule that the Constitution prohibits laws against gay marriage, which they don’t believe it does.
Have the laws prohibiting gay marriage been TESTED like in Massachusetts? That is, did anyone in any other state ever file suit against the state for prohibiting them from marrying their gay partner? I recently read an article in the NY Times about reaction to the controversy in upstate New York, and the Rochester official who issues marriage licenses stated that NO gay couples had ever applied for a marriage license. (I’ll find the cite if anyone wishes.) So I’m curious if it those laws have been tested outside MA.
If so, unsuccessfully, and later on, the courts say, yes, laws prohibiting gay marriage ARE unconstitutional, would it not then be accurate to say, “laws prohibiting gay marriage always WERE unconstitutional, we just didn’t have anyone on our side.”
I guess I want people to understand that the radicals here who are intent on re-writing our Constitution are the fundamentalists, NOT gays.
Well, you may well have a better read on what Americans are likely to support than I do, so I’ll concede that aspect.
However, I’m a bit unclear about your federalism point. Are you suggesting that the 14th Amendment was a bad idea? Because it impinged on states’ rights in exactly the same way that my proposal would - obviously, given that my proposal was simply to explicitly bring non-heteros into the fold of “any persons” who may not be denied equal protection under the law. If it’s fine for the federal constitution to forbid discrimination on the basis of one arbitrary socially constructed set of categories, why is it not okay to do the same for another such set?
Actually, I’d like to push on this point a bit, since, like Max, it’s not at all clear to me why the 14th shouldn’t be read as covering sexual orientation to begin with. Allow me to quote your reasoning on this issue up the thread a ways:
First, and this is a minor nitpick based on my potentially faulty memory, but does not the particular brand of strict constructionism to which you subscribe look first at the meaning of the text, and largely discount original intent? Given that, it would seem like the default reading of the 14th would be to assume universal scope.
Second, it’s not at all obvious to me that the framers of the 14th intended the scope of the equal protection clause to be limited to race. I mean, yes, obviously the proximate cause of the amendment was the desire to protect people from race-based discrimination, but it’s not obvious to me that the solution chosen for that problem was intended to be applied narrowly. After all, the 14th repeatedly refers to “citizens” and “any person” with no qualifications at all. The 15th, on the other hand, explicitly refers to race. So why, if the framers were only interested in race, did they neglect to include that qualification? It’s my understanding that wording choice in these sorts of things is never accidental, so I think it’s significant that the 14th doesn’t say, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws on account of race, color, or previous condition of servitude.” It certainly could have. And, I would argue, if its framers had intended it to apply only to race, it would have. Why should we not conclude that the framers intended that states should be required to demonstrate compelling interest for every instance of discrimination, and not just those based on race?
Now, obviously you are quite correct in pointing out that we have to be able to discriminate on some bases, citing examples such as convicts and children. However, I think you would concede that the sorts of different treatment received by such groups would in most cases sail through the various heightened scrutiny tests applied to race and gender classifications regarding compelling public interests - and where they would not, be based on statutes of dubious legitimacy. So I don’t see why that issue should force us to read a limited scope into the 14th.
And finally, just to forestall one potential line of response, I freely concede that none of the authors of the 14th Amendment would have thought that it should be read as requiring equal treatment of gays and straights with regards to marriage. However, I strongly suspect none, or very few, thought that it forbade anti-miscegenation laws, either. Moreover, they would have, without exception, held substantively false views on the nature of homosexuality. The understanding of the psychology of sexuality was basically nonexistant at the time. The very concept of orientation didn’t even exist. Men wanting to have sex with other men would have been seen as some perverse, self-destructive fetish. Given that misunderstanding, it would have been quite reasonable to think that the government would have a compelling interest in forbidding such activity. Since our best modern scientific understanding of the issue is that in fact homosexuality is an orientation, and a perfectly healthy one at that, no compelling state interest can be demonstrated, and hence the framers of the 14th Amendment would have been simply factually mistaken about whether discrimination against gays and lesbians violates the equal protection clause.
The Hawaii case a few years ago tested them in that state. The Hawaii marriage laws apparently did not include a “Man and Woman” provision and the Hawaii Supreme Court found that the state, after extensive scrabbling for justification, could not demonstrate a compelling interest in restricting marriage. For one brief, shining moment, we had a victory. Then the goddamn churches started mucking around with public opinion and the goddamn politicians proposed an amendment prohibiting same-sex marriage and it fucking passed, the goddamn assholes…
I’ve always considered the aftermath of the Hawaii decision to be a supreme example of pure fucking heterosexism and handwringing in action to deny a significant portion of the population its rights.
My meaning was clear, and Captain Amazing’s criticism was only halfway serious. While it is true I could have been more precise, I doubt very seriously that anyone read my remarks as meaning that the Constitution demands that everyone, gay and straignt alike, enter into a gay marriage.
Well, of course it is. They’re trying to force a particular public policy choice down the throats of an unwilling electorate, without a clear constitutional basis for doing so. As I’ve noted, no one has any problem with civil unions adopted by state legislatures. It is recourse to judicial fiat that is disturbing.
This is only true of a Musgrave amendment, which would take away the right of states to chart their own course. It is not true of a Bricker amendment.
But of course, that’s not what you mean when you say “existing right.” You mean that gay marriage is an existing right, which is simply an incorrect factual assertion. Gays do not have the right to marry at this time. Extending marriage to gays would be a new right, not an old one.
An excellent question, debate on which belongs on the floor of state legislatures.
The simple answer to this in all events is “no,” since constitutional proscriptions on gender discrimination have never been interpreted as extending to homosexuals (only O’Conner used a rationale along these lines in Lawrence, for example). And the right to privacy isn’t implicated at all – filing for and receiving a marriage license is a public act (unlike, say, sexual activity).
Again: of course they are. Establishing a constitutional right to gay marriage would be the establishment of a new right, just as the right to abortion was a new right in 1973.
No, they don’t. Try getting a marriage license with your same-sex partner for evidence of this fact.
Even a Musgrave-type amendment (which, again, I absolutely disagree with) would not “change our way of life” so much as it would preserve the status quo.
Oh, I agree that proponents of constitutioanl amendments have the burden of showing they are necessary. Proponents of a Bricker-style amendment would simply point to a long history of the court creating rights without a textual basis in the constitution, and reply that this history requires action to constrain the court from doing so on the hot-button issues of the day.
Again, I don’t think such an amendment is necessary – the constitution is clearly silent on the issue of gay marriage, an amendment would imply that this is not the case, and would probably lead to further cluttering up the constitution with such “preventative amendments” – but I do recognize that the argument in favor of a Bricker-style amendment is a respectable one.
It is an existing right that is being unfairly and unjustifibly infringed upon. Eventually it will be a recognized right and protected.
Tell me, Dewey, from whence to you consider rights originate? Are rights only rights if they are acceded to by the majority? Wouldn’t that make them privledges rather than rights? How are minorities protected from oppression?
Not to take away from your rightly-placed indignation, but the turning point of the Hawaii case wasn’t whether the statute included a limiting phrase (I think they did but haven’t read the case for a long while) but that by limiting marriage to mixed-sex couples parties seeking to marry a person of their own sex were discriminated against on the basis of sex. Every court in Hawaii that heard the case agreed and require the state to offer a compelling reason for limiting marriage. Not only did the state fail to do so, but every reason it offered up for restricting marriage was determined by the courts to be arguments in favor of allowing same-sex marriage.
Ah…thanks. I had thought that one of the reasons there was so much hope for the case before arguments actually began was because the denial was based on tradition and county-clerk discretion rather than the actual statute.
Of course, this was several years ago, so the odd of me getting something wrong on details are exponentially better than they would have been at the time.
No, it wasn’t a bad idea; it addressed a real problem. And some problems can evolve in such a way as to require a federal solution. The reason it’s OK for the 14th amendment to forbid discrimination on the basis of race is because that is what the people were addressing when they ratified it. In short, that particular infringement on the federal system was approved by the people.
I am on the fence between the textualist school of thought and the originalist school of thought. However, I think even the textualist school would come down on a fairly narrow equal protection clause. Recall that textualism looks at the text as understood by the drafters. In that sense, textualism contains an element of originalism. Textualism just doesn’t look at broader sources of intent (as originalism would) and then use those sources as dispositive when they conflict with the text.
A textualist would ask “what did the phrase ‘equal protection’ mean to the drafters in the context of drafting this amendment?” An originalist says “forget the text; what where the drafters trying to accomplish in passing this amendment?”
The easiest answer to this question is history. If the equal protection clause was meant to be so broad, why did women need to pass the 19th amendment in order to gain the franchise? Certainly the women’s suffrage movement was closer in time to the passage of the 14th amendment, and thus both they and the courts of the day would have had a clearer understanding of what was intended by its passage.
Because to take “equal protection” at its absolute face value would invalidate virtually every law on the books. Law is built on a foundation of classifying and then ascribing different treatment based on those classifications. Convicts are treated differently from the law-abiding. Children are treated differently from adults. The wealthy are taxed at different rates from the poor. To require the government to provide not just an interest, but a compelling interest for every instance in which it discriminates would make a mockery of the legal system.
Dammit, wish I had read this before I typed all that stuff above.
I disagree (well, not so much with convicts and kids, but with other areas where the government classifies and discriminates). Consider government restrictions on the type of advertising on certain kinds of trucks (Railway Express Agency v. New York) or grandfather clauses exempting some street vendors from new regulations (New Orleans v. Dukes). I don’t think those would survive heightened review. Every law discriminates against somebody.
Calling it an “existing right” is simply at odds with reality. You may want it to be a right, it may be good and just that it be deemed a right, but it ain’t a right unless you’ve got a corresponding remedy.
I don’t debate metaphysics. I ground my points in the real world. If you want to argue that God has given you certain rights, go ahead – and be sure to let God protect them. I deal with the rights the constitution protects, which may or may not correspond to your own view of things on a metaphysical level.
The great thing about “rights-speak” is that anyone can claim them. Dislike smoking? Just start talking about your “right to a smoke-free environment”?
I don’t give two shits if you think rights come from God, Mother Nature, or your own ass. What rights we elect to protect is a function of representative democracy and the amendment process. As it should be, indeed must be, in a system based on the consent of the governed.
Dewey, you like to point out various Amendments (14th, 19th) that have given expanded protection for various groups. You cite these as examples of how majorities were convinced of the error of their ways and wanted to enshrine their newfound fairness.
That view is fatuous.
If the Majority had grown so egalitarian as to widely support these Amendments, then why were they even necessary? Couldn’t invidious Jim Crow laws have been simply repealed or changed? Couldn’t voting priviledges been simply Legislatively expanded?
No. It was demonstrated that discrimination would continue in many places in the U.S. Sure New York might have given women the vote, but not Texas. The inequity would have been egregious. It makes no sense that the issue should be a state level decision. It is simply unthinkable that one should be more free in one state than in another.
Homebre: you don’t have a right to marry a man anywhere in the United States right now. You just don’t. You may think you should, you may think it’s unfair, but the fact remains that you don’t.
If you think this is a right, then how do you intend to enforce it?
I have a right to be free of illegal search and seizure. I have means to enforce it.
I have a right to counsel if charged with a crime. I have means to enforce it.
What’s your plan for enforcing your right to marry a man?
You DON’T have a remedy, because you have no right in the first place.
