You completely panicked me for a moment there.
It is the forerunner to Roe that held that states cannot ban married couples from buying contraceptives.
I have a policy that when someone’s cell phone goes off, I do my Happy Dance.
As I ready this, two cell phones went off.
I got to do my Gay Happy Dance without being asked why!
In fairness, the opposing opinions didn’t actually deny that the right to equal protection applied, only that the change that recognizing it would entail was so substantial that it should be dealt with by the legislative process. IOW, not “No” as such, but “Please don’t make us do this, regardless of the merits”.
Hey, it’s how women in New Zealand got the vote.
Nate Silver at fivethirtyeight.com has done a statistical analysis of when each state would support a popular vote to approve gay marriage. He found that the three factors affecting the vote on gay marriage were (1) the percentage of adults who say religion is an important part of their lives, (2) the number of white evangelicals, and (3) the passage of time.
His conclusion is that the votes in favor of gay marriage bans are decreasing at a rate of 2 percent per year, and that with the passage of suffient time even the most religious of states would vote to permit gay marriage. Specifically, he concludes that Alabama would support gay marriage in 2023 and Mississippi in 2024, with most of the other states able to support it well before that.
On the other side, his analysis concludes that eleven states, including all six New England states, New York, Nevada, Washington, Oregon and Alaska are at a point where they would vote in favor of gay marriage today. Of those states, Vermont is arguably the most liberal, and it has had civil unions for years, so I strongly doubt that if the matter were put to a popular vote the state would ban gay marriages. Indeed, the overwhelming legislative majority the measure got is a strong indication that the population would support gay marriage if called upon to vote on the issue.
Seriously, and not to overuse a SDMB phrase, I thought you better than this.
I’m not in favor of anti-miscengenation laws, Polycarp, but that doesn’t mean I wish to see them corrected by kidnapping the children of state legislators and threatening to subject them to sexual abuse by lepers (the legislators, that is) unless they vote to remove those laws.
In other words, it’s perfectly possible to be in favor of a result, but not approve of the way the result was reached.
I believe this very discussion was launched by such a feeling on my part: while lauding the result and the method in Vermont, I mentioned favoring the result but not the method in Iowa. Why you would then choose such a puerile and juvenile question as “So then you favor [terrible social policies]…” is beyond me. I don’t remember ever saying a harsh word to you before, but this is so unworthy of you that I’m stunned.
Actually, it is relevant that Iowa judges are elected. But because this was not the thrust of my comment (although now, naturally, the conversation has left my laudatory words about Vermont far behind, and is instead focused on the Pure Evil I have in my heart for Iowa’s situation). So, to explain further:
As I hinted, I was less than pleased by Iowa’s result, because, even though Iowa’s judges are elected, they do not run in the same way that Iowa’s legislators do. They have “retention elections” with no opponent, and even if removed, replacement judges cannot simply initiate a change; they must wait for a case. And it’s far from clear what such a case might be: a same-sex couple wishing to marry but unable to legally do so clearly has standing to sue to change the law, but who might have standing to sue to reverse such a decision?
No, no – although the situation differs from the federal sphere, it’s not by any means a true expression of democratic will in the way Vermont’s decision is.
The legislature governs by the will of the voter. Every citizen 18 and over has a vote. That’s what “self-” means.
He’s got a point, though; there’s no more indication that those who orignally wrote and voted the Equal Protection clause into existence would have approved of the striking down of anti-miscegenation laws in Loving v. Virginia any more than they would have approved of gay marriage. We can’t say with certainty what they would have thought in any given situation - they were different men and of different minds, and it’s not like they were a Greek chorus speaking in unison on any given area of the law. Punishments like flogging weren’t considered “cruel and unusual” in 1789, but our jurisprudence now recognizes that our standard of what consitututes cruel and unusual punishment “is not static…The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86 (1958). Instead of trying to divine what the thoughts of dead men would have been in situations that never would have occurred to them and in times that they never could have forseen, what’s wrong with “evolving standards of decency” in our Equal Protection jurisprudence?
Because if the evolving standards of decency that mark the progress of a maturing society are found to mean that every life, from conception to natural death, must be protected, and that therefore abortion is violative of the Constitution… then I suspect many who favor the “evolving decency” standard will sing a different tune. What’s wrong with it, in short, is that it places too much power in the hands of the judiciary, unelected at the federal level and often not meaningfully elected at the state level.
So, do you then think that the Court erred in Loving, Brown, and other civil rights cases?
It places power there that you don’t want, not too much power. That’s one of the essential balances between the legislative and judicial: the judicial branch may interpret a law that isn’t the way the legislative branch likes, so the legislators may feel free to pass a new one that explicitly rules out that interpretation. Or, of course, not, if the law was written a long time ago and the current legislators agree with what the court says, at least enough not to do anything about the ruling. My point is, a court decision isn’t always the end of the story. We’ve seen many times that the Supreme Court will issue a verdict and Congress passes a law or a Constitutional amendment undoing it.
Can you ever bring yourself to address the position that reaching such results is the heart of the courts’ role, not something to deplore?
Anybody harmed by it, even potentially - such as one of the many straight couples whose marriage has been “redefined” as an institution. That’s the heart of the anti-SSM argument, at least the part that can be articulated in public.
That draws the line between democratic and unacceptably activist between some procedural details. It is certainly as easy for an aggrieved person to think their elected officials in the Legislature are not following their “democratic” wishes as it is to think that of their elected officials in the state Supreme Court, though. So your view remains as opaque, and as redolent of mere rationalization, as it ever has.
Perhaps, but I’m not convinced originalism doesn’t lend itself to judicial abuse any less than any other school of constitutional interpretation. I think Poly’s point was that the exact same originalism criticisms leveled at judicial approval of gay marriage could also be leveled at Loving, Brown, and a number of other cases vilified at the time that are now generally regarded as societal goods and among the finest moments of the judiciary.
Returning to “evolving standards of decency” in Eighth Amendment cases for a second, do you think a judge would be required to approve of legislation that imposed late 1700’s style punishments such as flogging and handbranding? Even Scalia says he wouldn’t, regardless of the framer’s intent:
Oh, come on, Antonin, don’t weenie out on us now! 
Eh, possibly, but not likely. It could be a tipping point, but I doubt it’ll lead to a mass exodus of voters. Particularly since we just had our election last fall, and there’s time for this to blow past.
It was already happening a week ago. People picketing and demanding that their lawmakers were out of line passing this law without a referendum, 'cause that’s how a true Democracy works, by jeezum! Can’t trust the politicians to make the right choices (particularly when it looks like they are en masse going to enact a law I disagree with), so we have to poll the people!
This was flawed and faulty because we didn’t really ask the people what they wanted. :rolleyes:
Two questions:
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How does Vermont of all states happen to have a Republican governor?
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How is it that 54 posts have been posted in this thread and **not one person **has come on to express moral outrage about the institution of gay marriage in general?
I had the same thought with the Iowa thread. 4 years ago and these threads would be several hundred posts long by the end of the first day. Even 2 years ago they’d be much longer than they are now. I think it says a lot. And I love it. 
JayRx dealt quite well with question #2. Regarding question #1, there was a time, back when dinosaurs ruled the Earth, when the Republican party actually had a viable liberal wing. And moderate Republicans were a dime a dozen in the Northeast. Some of that remains, mostly at the local level: someone disgusted by the DeLays caused by an Armey of Newts but who has spent all his life a Republican, continues to be one – sometimes out of lifelong commitment, sometimes for moral consistency: there are a few historical principles for which Republicans stood and Democrats did not, as a rule, that are still worth standing for. Unfortunately, anyone under 40 has a hard time visualizing it.
Local politics are different from national politics. Every state has variation, and in ever state, each of the major local parties will pick up about half of the local variation. This may mean that they take different positions on some issues than do the national parties. For instance, one of the big issues that keeps Montana Republican in national elections is guns, since national Republican candidates tend to be significantly more pro-gun than national Democrats. But on a local level, it’s not an issue, because all politicians around here, Republican and Democrat alike, are pro-gun, so we can end up with a Democratic governor and two senators.
“Many times?”
In the nation’s history, there have been 27 constitutional amendments, of which the first ten came in a batch and were not, so far as I recall, responsive to any particular judicial action. (My discomfort over the courts’ interpretation of statue is not nearly as onerous, because Congress alone can cure it – but Congress alone may NOT cure a Constitutional decision gone amuck).
Now, it’s true that a few of the remaining 17 amendments over the past 200 years have been motivated by Court decision – Ganz vs. Louisana and the 11th comes to mind without doing any research, for instance, and the 16th for income tax. But even so, I’d suggest that the majority of those 17 were NOT inspired by a Court decision, and the reason is simple: it takes a great deal to amend the Constitution.
If the Court ever did find a “right to life for the unborn” in the Constitution, it would be bad news for those favoring choice, and I assume they wouldn’t respond with, “Ah, well, not to worry; we’ll shortly have a amendment ratified by the states.”
You mean Chisolm v. Georgia. Hans v. Louisiana was the one that expanded the 11th Amendment’s sovereign immunity protection to states from suits brought by their own citizens.