I’l take a crack, although the lawyers probably know better…
Marriage laws as they exist do not discriminate against gays. No one (straight or gay) is permitted to marry a person of the same sex. All people (straight or gay) are allowed to marry a person of the opposite sex.
The 14th is not about granting rights, it’s about prohibiting the states from passing laws that deny “equal protection” of the rights in other parts of the Constitution.
Sofa King: Yes, Mr. Rove, as you predicted everyone is now talking about the gay thing and nobody’s talking about impeachment. Congratulations, again.
You know, I think SK is absolutely dead on. And it’s even cleverer than that. Seems to me the Administration is deliberately flapping this red rag in the face of gay-rights advocates because they know it will generate furious and loud opposition. This in turn will galvanize the social-conservative base, who might otherwise be letting their thoughts drift with some distaste towards stagnant jobs and wages or an unsatisfactory situation in Iraq. The social conservatives will march to the polls to “save marriage” and we’ll have four more years of … this.
Karl Rove is a genius, no doubt about it.
Marriage laws as they exist do not discriminate against whites or blacks. No one, white or black, is permitted to marry a person of the other color. All people, white or black, are permitted to marry a person of the same color.
The argument didn’t wash then and it doesn’t wash now.
Marriage laws as they exist do discriminate on the basis of sex. A woman may be married by a man but not a woman and vice versa.
Except, hasn’t equal protection also been applied to gender? That seems to go beyond the original intent of the authors of the amendment.
By that argument, miscegenation laws do not discriminate against blacks. No one is permitted to marry a person of a different race. All people are allowed to marry people of the same race.
But (correct me if I’m wrong here) it’s already been expanded, in usage, to apply to other races aside from just blacks. And (more relevantly), it’s also been expanded to apply to women, the handicapped, etc.
Why should it not also apply to queer folk?
If the clear original intent of the framers, backed up by the text, was for it to apply strictlly to issues of race, and it had never been applied outside of race, I might worry about a slippery-slope argument when someone wanted to apply it to gay marriage, but that’s not the case.
This is almost not a hijack:
This is lawful neutral, not lawful evil. As has been stated, Bricker and company have no personal reason to want gay people not to be married. They just feel that the preservation of our current judicial/legislative system is more important than it. This brings the obvious question: if the purpouse of a judicial/legislative system is to preserve people’s rights, and isn’t doing so, why is it being supported as a whole above individual decisions in the favor of rights?
Think I didn’t expect someone to come back with that one??? 
Discrimiation because of race is explicitly not allowed by the Constitution (Amendment 15). If there were an amendment similar to that with the language “sexual orientation”, you would be correct in your analogy. But there isn’t, and so we’re left in muddier waters. You need to come up with a better reason for disallowing the states to regulate marriage in this manner. And that is what we’re talking about.
I’m with the constructionists on this one. I don’t see anything in the Constitution that would either forbid the states from regulating gay marriage, or that would require them to allow it. The constitution is nuetral, and so it is up to the states to determine.
You’re an idiot.
Possibly you’re not an idiot, but delight in gratuitous cruelty. Given those choices, ‘idiot’ seems to be the most benign interpretation.
If I argued against the adoption of a constitutional amendment along the lines of Musgrave’s, fought hard against it, because I believed it was wrong of the federal government to tell the states they could not legalize same-sex marriage, then would I be Evil?
I assure you that I do not support such an amendment.
You would have me support the federal Constitution meaning anything that’s good, and forbidding anything that’s evil, before you’d call me Good?
You’re an idiot.
I’m not saying in this thread that there shouldn’t be same-sex marriage. I’m saying that the federal courts are the wrong entity to make that determination. I say this becuase I believe that the trend to let the federal courts determine such sweeping changes is itself rife with the possibility of evil.
But you are too stupid to see that. Like a retarded donkey, you plod forward with your eyes fixed on the carrot tied in front of you. “Constitutional=good,” you think, to the extent that your retarded, donkey-like mind can process any thoughts at all. As long as I get what I want, I don’t care how we achieve it. Your debilitated equine mind cannot possibly grasp the distinction that although the end result may be a desirable one, it matters how we get there. No, no - such distinctions are as beyond you as calculus would be to a real donkey.
Wanting to see the state and federal system work as intended is not evil, and I am furious that you dared to call me evil. I fully and completely support laws that enable same-sex partners to enjoy each and every legal protection associated with marriage, and I believe it is wrong to deny committed, same-sex couples those benefits.
But no - to Retarded Donkey Boy, that’s insufficient. I must also support federal judiciary supremacy in all things, or I’m evil.
It’s a good thing I don’t change my position on issues like this because of idiots such as you; if I did, believe me when I say that you would have completely destroyed any support for same-sex rights I had.
I am now firmly convinced, however, that even after same-sex unions are recognized as marriages by every state in the Union, we should we should work to prevent persons with the reasoning capacity of retarded donkeys, whether gay or straight, from participating in them. I’ll certainly support THAT law.
Asshole.
The 15th amendment doesn’t forbid discrimination based on race. Nothing in the 15th amendment says a thing about interracial marriage. The 15th amendment addresses only the right to vote.
See my response to Dewey several posts back for a discussion of my take on the slightly-more-relevant 14th amendment.
The constitution itself is very clear about the amendment process-- that it is up to the legislature to do this. When the courts stray dramatically from the “original intent” of the constitution, they are not only de facto amending the constituation, they are de jure amending it as well. Of course there can be disagreement about the original intent, but to argue for a “living” interpretation of the constitution is to override a key provision of the constitution itself-- the amendment process. And, as others have aptly argued here, it disalows the people of their right to govern themselves, again a provision that is clearly stated in the constitution itself.
Is that the purpose of the judicial system, though? The purpose of the judicial system is to enforce the law and the Constitution. To the extent that the law and Constitution guarantees specific rights, the courts need to preserve them, but what rights people should have are moral questions, not judicial ones.
You’re right, of course. My bad. What I should have said was: “the 15th Amendment, in conjunction with the Civil Rights Act of 1964.” Otherwise, I think the argument stands.
Bricker, you’ve made it quite clear that you’re off in a world of your own, arguing for an amendment that nobody has even thought of proposing, and ignoring the consequences of the amendment that exists here in the reality the rest of the world shares. Meanwhile, you’re incapable of even considering the possibility that the Supreme Court is better at interpreting the contstitution than you are. Or even that any other interpretation of the Constitution might be valid.
What seems to you to be a rational, strict interpretation of the letter of the law is readily apparent to most rational humans as a misguided faith in your own ability to divine the intentions of men who died hundreds of years ago.
Meanwhile, the ‘strict constructionist’ doctrine is being used by demagogues whose transparent intentions are to make a whole class of Americans permanently disenfranchised, for the sole purpose of political gain.
You place more value on the law than on the liberty of human beings. Lawful evil, in a nutshell.
In what way am I ignoring the consequences of the amendment that exists here in the real world? I’ve said repeatedly that I’m against it. What more from me do you want?
And I certainly accept the possibility that the Supreme Court is better at their job than I. But I, as a citizen, have a voice and a vote in the governance process. My voice, and my vote, go towards removing the federal government from meddling in affairs properly left to the state. The suggestion that this makes me incapable of considering the possibility that the Supreme Court is better at interpreting the Constitution than I is absurd. It’s as though I pointed to your vocal disapproval of Bush’s policies and said, “Ah hah - you see, you’re incapable of even considering the possibility that Mr. Bush is better at executing the law of the land than you are.” It’s a meaningless accusation.
I don’t agree that the two are in conflict. I say we can have BOTH a respect for the law and the liberty of human beings.
And by the way: if calling someone who FULLY SUPPORTS full legal recognition, with all the rights, privileges, and opportunities of opposite-sex unions for same-sex couples ‘evil’ is an example of the rhetorical prowess of activists for this causes, it’s no wonder that such little progress has been made thus far.
I’m just sayin’.
Can I ask you a quick question Rick? Do you agree with the statement in Brown v Board of Education that “Seperate is inherently unequal.” I realize the actual discussion limited this assertion to the realm of public education, but I find it applies pretty much everywhere humans go.
It is my assertion that Civil Unions will never be distinct from Marriage in name only. Some other substantitive difference will persist, either in the social framework or the legal framework, no matter how hard people try, in good faith, to reduce the inequality. It is my contention that with a seperate instituion called “Civil Unions” that it will simply never be possible for Civil Unions and Marriage to have all the same “rights, privileges, and opportunities.” Some obscure part of tax code will be different, health care/insurance will be subtly different, a thousand million differences, all too tiny to be tracked down in the initial switchover to the term. Housing applications with “Single, Married, Civil Union” checkboxes will be treated slightly differently, perhaps as a result of some subtle bigotry on the part of the handler, perhaps as a result of poor processing procedures. There will never be true equality with imposed artificial distinctions.
If you’re interested in both same-sex couples and opposite-sex couples having EXACTLY the same rights, privileges, and opportunities, then there is, by definition, no meaningful difference between the institutions. Why go through the trouble of creating a new category in the tax code, housing code, inheritance issues, health insurance industry, etc? There is no difference between the institutions, so why the distinction? I can’t find a reason to make this distinction. What is yours?
Enjoy,
Steven
I’d prefer not to get sidetracked into a civil union vs. marriage discusison here.
But, briefly, accepting that there would be such problems as you predict, I would support removing “marriage” completely from government recognition. Let the churches decide what they want about “marriage,” and let the state sanction a civil union between any two adults. “Marriage” is thus relegated to the religious significance it has, and the government is left to deal only with the idea of a special state existing between two committed individuals.
How’s that?
You are not the first to make this silly little AD&D observation – KellyM did the same thing to me in Polycarp’s “rights” thread. It was silly then, and it’s silly now.
As I responded back then:
It remains an apt description: both Bricker and I have repeatedly expressed our view that sodomy laws are wrong and should be repealed, and that gay couples should have access to the same legal rights as married straight couples. Clearly, we do give a damn about the results – we just happen to also care deeply about how those results are acheived. You’re labeling of us as “lawful evil” is not apt.
FWIW, Gorsnak chimed in on the AD&D comparison as well.
I’ll try to post a more comprehensive post on equal protection over the weekend, given that questions have been raised about it.
But you both feel that the judicial/legislative processes not having the option to go further to hell in a handbasket is more important than this case, do you not?
Also, if you wouldn’t mind a bit more time in the interrogation chair, in what cases, if any, do/would you see judicial fiat as a good thing?
I’ve read this sentence three times and I can’t make head or tail of it. I think you’re omitting a word or three.
I gather that you are asking if I’m (I’ll let Bricker speak for himself) willing to see an immoral (but perfectly constitutional) law remain on the books. The answer is yes and no. Yes, in the sense that I don’t think the judiciary should undo a law without a clear basis for doing so. No, in the sense that I encourage people to work hard to get rid of such laws via the ordinary political process. Such laws should be removed, but the manner of their removal is every bit as important as the removal itself.
I don’t think judges should go beyond those limitations spelled out in the constitution. That doesn’t mean the constitutional text isn’t subject to interpretation, but it does mean that there should be a clear textual “hook” upon which a statute’s invalidation hangs. In short, I believe in vigorous enforcement of the constitution’s provisions, but not in judicially adding to those provisions.
If you’d care to give your understanding of the term “judicial fiat,” or to use some examples to flesh out your point, I’ll happily reply. I hesitate to answer the question as written because I’m not certain we’d be operating on the same set of defined terms.
You seem to be suggesting that the judiciary has some extra function as the “moral conscience” of the government (beyond being the arbitor of the will of the people and the legislature). This would imply that the judiciary has some sort of “fiat” (to use your term) that the people do not possess themselves. If so, what is the basis for this authority? Correct me if I’m putting words in your mouth here, but I’d be interested in you expanding on this and clarifying what you mean.