I have no idea what the first quoted sentence means.
I don’t think “judicial fiat” is EVER a good thing. I suspect you may be trying to shoehorn me into a dilemma here: isn’t it better to strike down an immoral or unjust law by judicial fiat than let it remain?
Sure. But better by far is to rely on the legislative process reflecting the will of the people. I do not accept the idea that judicial activism is the only possible salvation for a morally bereft legislature. That idea abrogates the very ideas of self-governance that our history enshrines as valuable.
Do you accept the idea that judicial activism can ever be a valid salvation for a morally bereft legislature?
Given your Oliver Wendell Homes quote above (I think you were the one who posted that), I’m inclined to think you don’t; but I’d prefer to have you answer that for yourself.
(Note: This is NOT a commentary on people posting to this thread; this was instead inspired by various blogs and news articles I’ve read in the past few days, and by another user in another Pit thread who has not posted to this one.)
You know, reading threads about gay issues, sometimes I have to wonder: what the heck do social conservatives/religious right think of gay people? What do they think will happen once their anti-marriage amendments are passed? That gay people will happily fade into complete obscurity? Put themselves into “heterosexual counseling”? How would they respond if a gay person actually walked up to them and said something like, “Hello. I’m gay. Why do you hate me?” I think I know the answers to these questions (though maybe it’s mostly stereotype), but it’s interesting to think about.
Oh, and to actually address the people in this thread, like Bricker: I’ve read commentaries that say that a state-by-state solution on this issue will not work, and that the ONLY alternative to a sweeping amendment banning gay marriage across the country is forced acceptance of gay marriage by every state by judicial fiat (as this guy, for example, discusses). What do you think of this assertion? If it were true, would it change your view of the Musgrave proposal? Why or why not?
Never say never. I readily concede that some terrible future evil may cause me to swallow my objections to the method out of an overwhelming fear of the results.
But that’s a dramatic supposition.
According to your link (as I understand it; the writer thereof is not a master of clarity) it is amendment proponents who say the amendment is required because state-by-state decisions are impractical. It’s unclear to me how they are impractical, unless “impractical” is a code word for “if one state allows it, we’re screwed because all the homos will go there to get married.”
I reject Musgrave because he commits the same sin against which I inveigh above: forcing a federal resolution to a question of state law. Under no circumstances would I support Musgrave, because his proposal embodies both a wrong conclusion (no same-sex unions) and a wrong method (federal resolution).
I don’t think he’s really arguing that a state-by-state approach can’t work as a matter of law and policy, but rather that after a few states go the federal judiciary will be unable to resist establishing a uniform rule. You don’t need a Musgrave amendment to prevent that; a Bricker amendment would work just fine. Indeed, if we assume that the judiciary will exercise appropriate restraint (a dangerous assumption to be sure), no amendment at all would be necessary.
A nitpick – I think you’re conflating the Voting Rights Act of 1965 with the Civil Rights Act of 1964. The locus of federal power for the 1964 Act was the commerce clause.
Can you clarify that? I can’t claim to have read the whole Act, but the very first sentence is:
Which I take to mean the 15th Amendment. But IANAL and YAAL, so I could very well be misunderstanding this. Was the reference to the the right to vote only a secondary locus (if I’m using that term correctly) of federal power?
It’s been awhile since I looked at the two acts themselves. When I think of the 1964 Act, I think principally of the provisions dealing with desegregation of public nongovernmental facilities – hotels, restaurants and the like. Those provisions are built on the commerce clause, and there are a couple of important Supreme Court cases affirming that fact that evey law student gets to read. I think most people consider those provisions to be the “heart” of the '64 Act, and that is the area that generates the most discussion. I just didn’t think about the fact that the Act happens to also have other provisions.
Actually, you don’t need either amendment. You could instead pass an amendment that would put sexual orientation on par with race with regards to discrimination, which would render the entire debate moot, with the equal protection aspect of Loving becoming direct precedent.
Not that I expect this to happen any time soon. I just find it odd that you seem to assume that the appropriate response to the situation is one which is guaranteed to perpetuate the injustices currently faced by gays and lesbians (for a long time, at least, especially in certain areas of your country - I expect if the Bricker amendment were passed, a few states in the northeast would allow gay marriage or a reasonable facsimile within the decade, but for most of the country it would take several decades at the least, a time scale roughly on par with the demise of antimiscegenation laws). If your goal is to appropriately end “judicial activism” with regards to gay marriage (the evidence for which I find to be exceedingly weak, mind you), should you not seek a just end?
I suppose you might argue that my proposed amendment hasn’t a prayer of being passed, and that you are simply limiting yourself to politically feasible alternatives. Hogwash, says I. The Bricker amendment has virtually no appeal to the vast majority of the electorate, particularly the socially conservative folk without whom there would be no suggestion of amendment on this issue in the first place. It would never pass. In fact, I think my proposal would receive more support, since it actually would accomplish something worthy of going to the trouble of passing an amendment, whereas Bricker’s would really just amount to a decree that with regards to this one issue, all judges are to adopt strict constructionist stances, which would (forgive me, Bricker) be a rather silly reason for an amendment. Far better to go the whole hog and mandate a strict constructionist approach to interpretation across the board. Or better yet, mandate a more reasonable interpretive approach.
The point still stands that anti-SSM laws discriminate on the basis of sex and as such are subject to heightened scrutiny under the 14th Amendment. Therefore the State must show that such laws are substantially related to an important government interest. There is no important government interest served in the denial of SSM.
Should you not accept that anti-SSM laws discriminate on the basis of sex (the supreme court of Hawaii disagrees with you) then you must accept that they discriminate on the basis of sexual orientation and as such are subject to minimum scrutiny. Therefore the State must show that there must be a reasonable relation to a legitimate government interest. There is no legitimate government interest served in the denial of SSM.
I read it as saying that all other powers reside in the states or the people so as to confine federal power, but no implication is made that unprotected rights should not be addressed at the federal level by US constitutional amendments.
Presumably if you support the the non-Musgrave amendment because it gives the power back to the states then you would also have a problem with a federal amendment that has the same outcome as a SCOTUS decision. In that situation the question comes back to why the states need the power to abridge certain human rights without need. And a position that claims the states don’t need the power but should have it anyway would have to hold that it’s a good idea for the bill of rights to be repealed.
But if you support the amendment because you don’t think there is such a right in the Constitution, then an amendment to add one would be better than the one proposed. Is there another reason for supporting the amendment that I can’t see?
Please note, if you haven’t already, that I see the states’ rights and judicial activism issues as seperate and what follows is only for the latter.
The hypothetical decision would not be about the court exercising a power to define marriage, instead it would say the Constitution does address the issue and as I have said, I doubt it would be based on arbitrary conclusions.
Who do you think is going to accept such a stupid principle?
The protection of human rights should be able to fit into any reasonable notion of limited government, at least in actions the government has control over. I’m not suggesting that we should accept the right outcome the wrong way, I do think the right exists in the Constitution so for me it is the right outcome by the right way. There isn’t much point in an amendment that prevents you from going the wrong way when you can have an amendment that gets you there the right way. However, we both know that a gay rights amendment has little chance of being passed, just as there is little chance that the states will give legal rights to gay marriages any time soon.
The SCOTUS judges’ task is to determine what the Constitution has been written to mean and apply it to the cases brought before it, if it makes bad law then the next generation of judges will be perfectly justified in throwing the precedents out. If it is an arbitrary notion with no constitutional basis then arguments against it will be easy to make and the decision will be overturned sooner rather than later, without any real loss. Until that happens their precedents are what the law of the land is and effectively what the Constitution means.
An amendment wouldn’t just say that the judges made the wrong decision, it would be explicitly stating that the Constitution does not and should not secure equal rights for homosexuals. I would further say that it signals that prior to the amendment, the Constitution did secure equal rights and that they have since been taken away. (That’s how it could be said to enshrine bigotry.) If the will of the people is to ensure that there is no such right then so be it, but I don’t think that doing so would be a good idea and I don’t think the amendment would have much effect on judicial activism.
It’s reasonable to assume that the judges are principled people and so they aren’t likely to be pushed into changing their minds on what the Constitution means just because an amendment has been passed to reverse their determination. Perhaps you think only this decision needs to be fixed because it diverges more than the other cases you think are examples of judicial activism but others may want many more amendments and that is where your enemy may also be hiding. This one could encourage more amendments to undo other decisions of SCOTUS which could in turn reduce inhibitions on both using the amendment process and judicial activism as any decision too liberal could be amended anyway. If there is a right way to get rid of bad precedents then it is by SCOTUS itself, unless the decision is having catastrophic results.
Since an amendment isn’t going to have much of a dampening effect on activism and eventually gay marriage will be universal anyway, is it really worth going through the process of amending the Constitution and re-imposing on homsexuals what would probably be many decades of inequality?
No, I’d rather not get sidetracked into it because this discussion has been about the propriety of a federal constitutional right to same-sex marriage, not about the wisdom or immorality of denying that right at all.
If you’d like to start another thread that deals with the overall wisdom of “marriage” vs. “civil unions,” perhaps your first point can be a response to my plan to eliminate “marriage” completely from the realm of government sanction, leaving it to the religious institutions to do with as they please, and simply let the government sanction civil unions between two adults of whatever gender, period.
I mentioned that in the post you quoted, but, oddly, you choose to ignore that.
[url=http://www.congress.org/congressorg/bio/?id=5508&lvl=C&chamber=H]Musgrave is, as near as I can tell, female.
[/QUOTE]
My bad. I TOLD you I had never heard of Musgrave before this.
Question for the lawyers: If each person is found to have a fundamental right to marry anyone of his/her choosing, does that necessitate allowing sibling or parent/child marriage? Seems like the only reason to prohibit marriage with close familoy members is the issue of increased risk for genetic diseases for the offspring. But incest is not illegal (AFAIK), and we certainly allow people with known genetic abnormalities to have children, so how could you defend banning incestuous marriages on that issue alone? Which only leaves the infamous “ick factor”.
Would this be different if the legal case was argued as a “gov’t can’t discriminate becuase of sexual orientation” issue? IOTW, would that allow the gov’t more flexibility to continue to regulate marriage than the “anyone can marry anyone” argument?
Note: I’m not saying I would favor such a ban, I’m just wondering how you would maintain it (as most people would probably want to). I note that Vermont’s civil union laws disallow CUs for close family members (including uncle/niece and aunt/nephew unions).
In general the reasoning behind disallowing marriages/civil unions with close family members is the problem of inherent coercion in such relationships. Even with adults the authority or deference given to elder members of a person’s family makes real consent difficult.
I’ve certainly heard this argument used when one party is a minor child, but never when both are adults. Can you provide a cite that indicates this is an actual judicial argument that has ever been made? It certainly isn’t the case for law governing business relationships.
Also, these laws always (AFAIK) include siblings and often include cousins.
I don’t generally support amending the Constitution to include gay marriage, or to exclude it either. As I said earlier, a Court that is willing to ignore the plain text of the Constitution in favor of dreaming up new rights is not going to be stopped by another amendment.
Since the Constitution clearly does not address the issue, thus it is arbitrary for the Court to decide that it does. “The Constitution says anything that the Court likes is mandatory” is the arbitrary principle to which I object.
Anyone arguing that the Court ought to establish gay marriage by judicial fiat has already accepted the principle. As others in the thread have pointed out, it may not be such a good idea, as Bush is likely to be re-elected and choose justices who do not agree with many ideas that liberals take as axiomatic, and therefore it is a dangerous principle to support. YMMV. I am more in favor of limited government, even when my party controls the federal government.
Certainly they will be easy to make. But since we have already accepted that it matters little what the Constitution actually says, the arguments can safely be ignored.
Roe v. Wade is a decision based mostly on principles that are not found in the Constitution. Yet it has stood for thirty years.
Not under any theory of strict interpretation of the Constitution.
We have not established that the Constitution secures equal rights to gay marriage, and none of the amendments under discussion state explicitly that gays should not have equal rights. Nor would it be overturning any federal precedent.
I think you are mistaken here.
Exactly. For justices who do not care what the Constitution says, it does not matter if it says something else.
sorry, folks, but I don’t have patience to read four pages (if someone already pointed this out):
RICK:
Americans have the right to do anything they want if it’s not prohibited by law, not the other way around.
For purposes of a Federal Marriage Amendment, the burden of proof is on the forces of darkness to prove that we need to prohibit same-sex marriage, not for the forces of light to argue that the Constitution permits same-sex marriage.
