The State of the CIVIL Union Address

The BBQ Pit
61

I’m always astounded by your lack of comprehension of the Amendments IX and X.

These rights exist and always existed. They were simply infringed upon before. What the courts have done is put a stop to the violation of rights that were there all along. Strict Constructionalism is a sham. It’s a facade for reactionaries against the rational enumeration of rights that were assumed to exist before. If Right Wing Moralizers, Bible Thumpers, and Social Conservatives hadn’t been so intent on trying to infringe upon the rights not enumerated, then Justice wouldn’t have demanded that judges make the rulings they have.

62

Strictly speaking, that wasn’t Tu Quoque.

And it’s a valid point. You believe that everyone who holds to the unions-yes/marriage-no position is a “homophobe.” By that standard, you are effectively calling the overwhelming majority of the people in this country homophobes, including an awful lot of people on the left. What I was getting at implicitly is that your position is fairly absurd – plenty of people who have the utmost respect for homosexuals, and who actually favor gay-friendly policies, hold to the Bricker position. It’s a bit silly to suggest that their moderation on this one particular issue renders moot everything else they believe about societal treatment of gays and lesbians.

Oddly, when Lawrence came down, its defenders were swearing to their dying breath that it did not establish a right to any sexual activities beyond consensual sodomy. You seem to be arguing the opposite. Are you suggesting that Lawrence protects, say, adult incest or adultery?

63

You contend the right to same-sex marriage has always been guaranteed by the Constitution.

If the Bricker Amendment (or even the Musgrave Amendment) were to pass, then I assume you would agree that this was no longer the case – that is, the Constitution would no longer guarantee the right to same-sex marriage.

Yes?

  • Rick
64

Well, Bush said this:

So, it seems he’s supporting an amendment to restate DOMA.

65

First, if I overstated Bricker’s position vis-a-vis the idea of this amendment I apologize. Second, regardless of whether I overstated it or not, the assertion that it is unwise to allow judges to interpret the Constitution to allow SSM is still a strong opinion on the wisdom of SSM in general, and it’s a fucked up position. Finally, the attempt by Bricker and DCU to pass this off as nothing more than a simple matter of “state’s rights” is disgusting.

66

The problem is, since the rights referred to in Amendment IX aren’t enumerated, it’s an open question as to what is included.

67

That’s not an unfair inference, but it’s not the only inference. He doesn’t say, for example, “I therefore urge Congress to pass the existing Musgrave proposal,” or even “I therefore support an amendment enshrining DOMA in the Constitution” He merely says that the remedy to activist judges is for the people to resort to the constitutional process - a fact effectively unarguable.

In any event, it’s not really relevant. My position should now be crystal clear: yes on Bricker Amendment, no on Musgrave Amendment.

  • Rick
68

In that case, I’d have to concede the point.

They may not be Phelps, but it’s still homophobic to discriminate on the basis of sexual orientation. Period.

Our recollections are different. As I recall, defenders of Lawrence said the decision was unrelated to the slippery slope argument about marriage. It still is. Those other issues are Red Herrings.

No. I’m saying the Constitution does. Challenges to anti-adultery and anti-incest laws should stand on their own, although the basis may be the same as in Lawrence.

That’s not the problem. Everything not specifically mentioned is a right that should only be infringed if the government can give a compelling reason. The problem is too many people think religion and bigotry are a compelling reasons.

69

I thought this was EXACTLY the amendment that Santorum, Frist, and other social conservatives have been proposing all along, one that would make gay marriage illegal in the United States, enshrined in the Constitution.

When/where did you hear differently? I sure haven’t.

70

Apologies to Bricker; I didn’t see that this thread ran to a second page until it was too late.

Still, I’m surprised that he hadn’t heard of the Musgrave proposal, considering it IS the only one that anyone in Washington has seriously considered OR talked about. I believe they’d all oppose his version as being too wishy-washy, and not accomplishing the purpose they desire, which is to make gay marriage illegal forevermore.

Given that this is the stated intention of most Republicans in power who care about this issue, I’m glad to see that he’s against the measure.

71

Homebrew, your view of the Constitution appears to be internally consistent - but I don’t know of any current Supreme Court justice that would endorse it wholeheartedly. It’s not what I would call a reflection of mainstream jurisprudence.

Admittedly, the strong federalist approach I am advocating is also not solidly in the middle of the legal landscape, although I would venture to say it’s closer to acceptance than yours.

In any event, I think we’re at the point of agreeing to disagree. I think there’s a fair chance, especially given public reaction to the Massachusetts decision that made same-sex marriage a reality rather than an academic abstraction, that a Bricker-type amendment would clear Congress. If it did, I don’t believe there would be too much problem getting the requisite support from the states.

But I guess we’ll see.

Again, let me draw the important distinction: I support an amendment that clarifies, contrary to Homebrew’s assertion, that there is no federal constitutional RIGHT to same-sex marriage. I do not support an amendment that forbids it. So when you say that I think it’s “unwise to allow judges to interpret the Constitution to allow SSM…” you’re really still twisting what I’m saying. I think it’s unwise to allow judges to interpret the Constitution to REQUIRE same-sex marriage.

Now, your last sentence seems to invite the inference that I am disgusted by the prospect of same-sex marriage in general, and am using the spectre of states’ rights as a shield to hide behind.

If my motive were to utterly crush the prospect of same-sex marriage, it would seem best for me to support the Musgrave-type language, since it does forbid any state from ever recognizing a same-sex marriage.

I would not support a federal constitutional amendment outlawing abortion. If you were to draw from my lack of support the inference that I have a strong opinion that abortion is a valuable right, you’d be wrong. I oppose abortion, and believe it to be a terrible scourge. But I don’t believe that the issue should be solved at the federal level, one way or the other.

So, too, your inference that my position is “fucked up” because I don’t support a federal constitutional right to same-sex marriage is misplaced. If legislated at the state level, I have no particular problem with the issue. But I strongly oppose it as a mandated right by the federal constitution, as Homebrew believes it is.

Got it?

  • Rick
72

Obviously I haven’t been keeping up with the memos. :smiley:

“Making gay marriage illegal forevermore…” may well be the goal of many Republicans, but it’s not mine. My goal is to force the issue to be decided where it belongs: at the state legislative level, not the state courts or, worse, the federal courts. If it enjoys the requisite support at the statehouses, then let’s have it.

If it doesn’t, then let’s not have it imposed by the courts.

  • Rick
73

I agree that we disagree. Unfortunately I also have to agree with the rest of this paragraph also. I find it disheartening that Liberty is so threatened in this country.

74

Here’s a simple question for the states-rights people.

Did Loving v. Virginia establish that marriage was a constitutional right?

If so, then same-sex marriage is also a constitutional right, by the equal-protection argument.

If not, then you have a point.

If I’m not mistaken, btw, the answer to that question is “yes”. Ergo, same-sex marriage is a right under the Constitution of the U.S.

75

Question, if States already have equal protection under the law clauses for gays, then the amendment passed states that states decide, then any law passed by the states denying same sex marriages would be invalidated by the equal protection clauses, right?

76

Not being a lawyer, far be it my domain to judge constitutionality, but it seems to me in my basic command of English that the Constitution does not guarrantee marriage by any rational interpretation.

When you get to that part in the Constitution about powers not specifically granted to the Federal Governement are reserved for the States, it seems pretty clear to me that it’s a state law issue.

The states should decide how to treat it.

I see that as pretty basic and evident, and difficult to dispute. But then, I’m not a lawyer.

So I think that anybody trying to say that gay marriage is Constitutionally protected is trying to fuck with the truth.
Now, if like me, you support gay marriage, you may think that is bad news or an unfavorable stance or interpretation and you may resist it.

I think that’s a mistake. A big mistake.

This interpretation, I beleive, is actually the nail in the coffin for opposition to gay marriage.

To my understanding, it makes DOMA unconstitutional. The states are obligated by the Constitution to respect each others laws.

This is why if you have a driver’s license in Delaware you can drive in Florida. This is why California cannot tax New York Municipal bondholders. This is why if I am married in the State of Pennsylvania, New York is obligated constitutionally to recognize my marriage.

Doma, is created to bypass… rather break, the Constitution as regards to State and Federal rights to self-governance and recognition of each others laws.

It seems to me that if Vermont passes a gay marriage law, New York is constitutionally obligated to recognize that marriage, as is the Federal Government.

Doma attempts to break this Constitutional right, and create a specific exception against homosexual marriage.

IMO that is clearly discriminatory, a violation of States rights, and a violation of the Constitution.

It seems to me that if one strongly supports gay marriage, the surest path is to support the States right to make this determination for themselves, and the obligation of other states and the Federal Government to respect and recognize those laws.

77

I find myself intrigued by this particular characterization on the part of the SotU address (emphasis mine):

I was taken by the notion that the change is arbitrary … it’s an extremely interesting position. I am reminded of the mainstay “well, if we allow gays to marry, what’s to stop a man from marrying a dog?” argument of opponents of gay marriage. THAT would be slightly arbitrary (why, rather than a dog, a hyena? Yet the legal distinction between a man and a dog is, in my admittedly amateur opinion, a bit more evident). Given the current group of people in this country who support gay marriage, that the will to allow for it is arbitrary is an extremely interesting position and seems to me to have as much merit as those who argued half a century ago (and earlier, and some later) that “mixed” marriage (what we might now call multiracial marriage) was any number of undesirable, unintended, etc. things.

I do wonder, given that we have repealed amendments in the past, what is so very difficult about granting rights to one group of people when the other group’s rights in those areas (not just marriage) have been recognized for so long.

I also wonder what the administration would say if confronted with this ugly, rather unlikely but useful scenario: to wit, if the will of the people was that rape be made legal, and an “activist” judge or group of people sought to right what they saw as a wrong. If the people wanted rape made legal, what then happens to this argument cited above?

78

I’m always astounded that you and others consistently think I ignore the Ninth and Tenth amendments when I’ve dealt with them numerous times. The Tenth, whick makes explicit that which is already clear from the structure of the main body of the constitution, simply states that powers not given to the federal government are held by the states and the people. It is clearly inapplicable here.

As for the Ninth, I’ve dealt with this so much I’ve got a canned post ready:

Here we go again. The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights.

Even libbies with law degrees like minty green understand this.

We’ve discussed this point many times. Among other places, it’s buried in these threads:
Rights? What’s a Right?
Is Scalia Nuts?
Supreme Court hears challenge to Texas Sodomy Ban
Conservative dopers vs. gay sex decision
Democrats oppose Hispanic judge: “he’s too competent!”
Strict constructionists: How about adding a constitutional “right to privacy”
A moment of your time, please, Justice Scalia
And not a 9th thread, but just for fun: Dewey! Minty! Come a runnin’!!

This theory is, in essence, carte blanche for the judiciary to frolic along in any bit of social engineering they happen to fancy at the moment. Sorry, no thanks, I’d prefer to have a say in how I’m governed.

You really are pig-ignorant of history, aren’t you? If you knew the first thing about constitutional law, you would know that the first real examples of judicial activism in the modern sense were by conservatives, who struck down minimum wage and maximum hour laws on the grounds of a supposed “freedom to contract” allegedly protected by the constitution. See, e.g., Lochner v. New York. Pay particular attention to Justice Holmes’ dissent.

Lochner and its progeny were wrong back then, just as Roe and Lawrence are wrong today, and for the same reason: not because of the particular policy preferences they favor or disfavor, but because they take away the right to self-govern from the people without a clear constitutional basis for doing so.

79

(checking watch)

Yes, Mr. Rove, as you predicted everyone is now talking about the gay thing and nobody’s talking about impeachment. Congratulations, again.

80

Your recollection is wrong. Justice Kennedy specifically carved out marriage from his opinion, so no one, detractor or supporter, could plausibly claim that the decision had anything to do with gay marriage. We did, however, extensively discuss the implications of the Lawrence decision to other sexual practices in the myriad threads discussing that case.

“Everything not mentioned” is a right? Surely you can’t mean that. If I want to walk down the street naked, is that a constitutional right? I mean, sure, it’s not mentioned in there, but according to you that doesn’t mean a damned thing – it’s a right that must be subjected to “compelling reason” analysis.