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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. It does, in effect, say "there’s something wrong with what you’re doing and we’re making sure your freedoms are not permitted to stretch this far. If that’s not bigotry, I don’t know what is.
Apparently, I was. As I conceded earlier, I haven’t been keeping up with my Right Evil Bastard inter-office memos. It’s now obvious that pretty much everyone but me had heard of this specific proposal, and (I hope) equally obvious that I was talking about about Bush’s support for a more generic approach, which I offered above.
And despite the “We should codify it” quote, I have yet to see a specific quote from Bush supporting a Musgrave-type amendment. Having read everything now, I’m inclined to believe he would support it, but I haven’t actually seen that proven. THIS, I admit, is a weaselly comment, but it’s point is that my reaction came from the SotU address, and not the activities of Congresscritters that may have preceeded it.
Because the federal government has no right to tell the states how to govern in this area.
Look, suppose I issued an edict that henceforth, same-sex marriages were to bw permitted in all fifty states. That’s the right resuly, I assume you believe, but the wrong method: I, Bricker, have no particular authority to order any state, much less all fifty states, to do or to not do anything. You shouldn’t support my authority to do so merely because you agree with me edict.
Were you a Supreme Court Justice and were writing the majority opinion in a case concerning that issue, then, yes, you would have that authority via the Constitution. I’d support your authority to make that decision because the Constitution gives you that authority.
I don’t see how this addresses the problem of judicial activism.
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.
Which cuts both ways, of course. A justice who will interpret the Fourteenth Amendment to say that states are required to recognize gay marriage is a justice who can interpret a no-discrimination amendment to require anything else he feels is a good idea. He is likely to interpret the current Constitution to say so (absent any no-discrimination amendment) as well. And he is going to interpret either the Bricker or the Musgrave amendments to say whatever he wants as well.
It is entirely a question of who can muster five votes on the Supreme Court. 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.
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?
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.
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”?
I suspect the problem is that gay marriage advocates know perfectly well that this is something they cannot get passed in any venue designed to be responsive to the public will. They have a fighting chance to convince five justices; fifty-one percent of a state legislature is another matter altogether.
Which, as I said earlier, cuts both ways. There is nothing to prevent some activist group on the Supreme Court from simply ignoring any Bricker or Musgrave amendment by saying that gay unions, by definition, are not marriages, but civil unions, and therefore states are compelled to recognize same-sex civil unions as holding the same rights and benefits as marriages. Once you have established the principle of ruling based on what the Constitution should have said, all bets are off.
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.
Regards,
Shodan
Please see: the 13th, 14th, 15th, 19th, 24th and 26th amendments, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Americans With Disabilities Act, etc, etc, etc.
Now tell me: do you think all these things magically appeared from the ether?
minty: that quotation isn’t terribly far off from what Hillary Clinton said in the article I cited earlier, and it doesn’t express support for any particular proposal. Nice try. I agree that Bush is opposed to gay marriage, but we’ve no clear indication of what that translates to policy-wise.
“…if my fellow citizens want to go to Hell, I will help them. It’s my job.” - Oliver Wendell Holmes, Jr.
Part of living in a federalist system means accepting the decisions of other states even if you think them foolish or downright wrong, so long as those decisions don’t violate any of the provisions of the federal constitution or conflict with federal statutory law.
In a sweeping decision, Chief Justice Shodan, reading the majority decision in the historic Homebrew vs. Bush case, declared that gay marriage “and other similar structures, such as civil unions”, were un-Constitutional.
“We find that the Equal Protection clause would be violated by attempting to impose the authority of the federal government on states, who are clearly meant to be the primary arbiters of matters such as marriage. 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.”
Interviewed after the decision, Homebrew was resigned. “He clearly has that authority under the Constitution. I guess I have been proven wrong.”
Regards,
Shodan
It’s a parody. IANAL.
True enough.
And I assume you’d say the same if I authored a majority opinion forbidding same-sex marriage? And if I authored a majority opinion saying that Florida ballots should not be recounted under a given set of standards?
And if I authored an opinion declaring that “freedom to contract” was a right guaranteed by the Constitution, so that mandatory minimum-wage laws were unconstitutional for this reason?
Even if you supported my authority to make that ruling, I’m assuming that at least one of my hypothetical rulings might lead you to work for a constitutional amendment to vitiate the effects of my ruling? Or would it not?
One thing that strikes me as incredible is that social conservatives who want to end gay marriage across the country interpret Bush’s words as giving support for a constitutional gay marriage ban, and states’ rights supporters interpret his words as simply protecting the rights of the states from infringement by judges and the federal government, through the use of a constitutional amendment if necessary.
The man’s speechwriters are simply brilliant.
Now, I despise Bush, and I think the “let’s be so vague in my SotU speech that no one can really figure out what I’m saying” thing is a disturbing tactic. But I still have to admit that’s some great politicking.
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?
As for the “Bricker Amendment” or any other codification of marriage rights, it’s all just so much lawyerly bullshit. It isn’t needed. The “right” of two individuals, whetever their sex, to unite in a loving relationship and set up a household no more needs to be written into law than the “right” to breathe. Refusing marriage rights to same-sex partners has to be justified by a compelling argument that such a union damages the state. No such argument has thus far been adduced.
If Bush is not a homophobe himself (and I think he is) he is nevertheless catering to the Phelpses of America, and his behavior is shameful.
>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.
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.
>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.
Unfortunately, yes, I’d have to say you had that authority. I would certainly hope that, like with Bowers, the Court would realize they were wrong and overturn their own ruling.
Given the reality of the situation, I’d more likely start investigating the practicalities of moving to a more enlightened nation and renouncing my citizenship here.
First off, pedeophilia is in no way related to this issue and it is simply a Red Herring to even bring it up.
Even if gay marriage and polygamy are legalized, you still haven’t shown in what way heterosexual marriage is in any way affected. What specifically is one of the harmful outcomes? Be specific. Are straight people going to suddenly start marrying gay people instead of whom they want? Are all of y’all going to suddenly forget who you’re married to and just go home to random people? What is going to happen?
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.
Indeed, as I’ve pointed out, I support gay unions (though I’m somewhat on the fence on whether that should be termed “marriage”). But I don’t think that policy choice should be brought into being via judicial fiat.
Of what relevance is the answer to that question? Who here is arguing that it has any effect?
The law of the land recognizes that the government has the legal authority to regulate marriage. The government may legally forbid brother and sister to marry. The government may legally forbid parent and child to marry. The government may legally forbid first cousins to marry. Grandparent and grandchild may be legally denied the right to unite in a loving relationship. And two men may be legally denied this right as well, at least at present.
You disagree, apparently, but your disagreement is not an opinion consistent with the law.
The law also recognizes that we live in a dual-sovereign state of government: the federal government has authority in some areas, and the state in others; in some, of course, their spheres of influence overlap.
When you dismiss this as “so much lawyerly bullshit,” it suggests to me that you do not understand the distinction between state and federal authority, and are impatient with the distinction. You’d rather, I guess, just cut to the chase and say, “Hey, however we get there, we need to end up with same-sex marriage being legal!”
But if we “get there” by forcing the issue as a federal constitutional question, we accept a state of affairs in which this critical legislative decision is made by the courts, and not the people. Now, you may say, “What do I care? As long as they reach the right result, what does it matter who decides?”
Consider this: if Bush wins again, and gets to appoint two or three SC justices… are you so eager to have conceded that much power to the Court? If the Supreme Court in 2007 rules 7-2 to overturn Roe v. Wade, and 6-3 to overturn Lawrence v. Texas and reinstate Bowers v. Hardwick, are you still going to be so cavalier about letting the federal courts have this authority?
Or will you simply join Homebrew in his quest to resign your citizenship?
I’m arguing that putting so much power into the hands of unelected judges with lifetime appointments is unwise. It’s unwise even if they are agreeing with me.
That’s an excellent argument to bring up when we debate the merits of the state law changes contemplated at your state’s legislative session.
I’m arguing that the federal constitution does not COMPEL states to permit same-sex unions, and, to avoid an interpretation to the contrary, a constitutional amendment is desirable.
You may be right. What of it?
“Change” is not a synonym of “weaken.” Please cite specific examples, statistics, etc. (feel free to draw them from those jurisdictions where same-sex marriage is legal) that support your assertion that marriage is “weakened” by allowing same-sex couples access to it.
Bricker: I am still awaiting your admission of error in asserting that gays are not covered by the Equal Protection clause in light of my posting from Romer that we are.
Missed this one in the last “board database error” phase…
Bricker is using the phrase “rational basis” in the constitutional law sense, i.e., the lowest threshold of review in equal protection matters. The rational basis test has be called “the test that cannot be failed,” as it essentially only demands a non-insane reason for the law – virtually any proffered rationale, even if highly improbable, can survive rational basis review. That includes vague handwaving about sexual morality and the sanctity of marriage.
So the answer is (b), but only because the phrase is being used in a highly technical manner.
How is recognizing gay marriage violating people’s rights again?
I composed a long post with this analysis.
The Board’s response was, “There seems to be a slight problem with the database.”
I will try to recreate my post tonight.
The short version is: even if gays are covered by the EP clause, that coverage does not extend to forcing states to recognize same-sex marriage, and courts that have considered the question (even in light of Lawrence) have reached the same conclusion.
Correct. “Rational basis” as opposed to “strict scrutiny.”
The thing about this whole discussions that strikes me as totally ridiculous is that the thing which Bricker fears the most has already come true, and has been true for ages. Let’s examine, shall we, the relevant part of the 14th amendment:
This is an extraordinarily vague piece of text. What does it actually say? What on earth does it have to do discrimination? Miscegenation? Anything else?
There’s no way that anyone could determine, simply from the text of the 14th amendment, that (a) the 14th amendment guarantees the right of mixed race couples to marry, anywhere in the US, and requires that states respect that right, and (b) the same is not true for gay couples.
Sure, there’s historical context, yada yada yada. But given the extent to which torturous logic has traditionally been applied to the definitions of “priveleges and immunities” and “equal protection” and “due process”, I hardly think that Bricker’s worries about the collapse of the governmental process are justified.
Why does the 14th amendment prohibit anti-miscegenation laws? Because they’re BAD! If we lived in an odd hypothetical society in which we were 50% white, 50% black, with true power sharing between the two, but with absolutely no racial mixing ever, and 99% of the population believed miscegenation to be an abomination, I abso-frickin’-lutely guarantee you that intelligent, honest, diligent and well-meaning scholars of the law would be able to give completely coherent and rational explanations for why the 14th amendment allowed anti-miscegenation laws.
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.