# Will marriage equality be a part of the Democratic Party platform this year? **URL:** \ **Category:** Great Debates\ **Created:** [February 21, 2012, 8:04pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556 "2012-02-21T20:04:26Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 22, 2012, 5:44pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/81 "2012-02-22T17:44:19Z")
> [@](#): > > How many of those were because of propositions (like California) and how many were Legislators and a Governor voting for (and not vetoing) it. I just listed the ones that were passed via legislation by Dem legislatures (or in DC’s case, a Dem controlled City Council). I should actually include Maine as well, since it passed the legislature there, even though it was voided by a ballot initiative. Other states like Iowa I didn’t count, since they were legalized by Court decisions. (California is sort of a special case since it was passed by legislation, then voided by a proposition, then unvoided by the courts and is now being appealed to a higher court, but in anycase, the Dems in California legalized gay marriage, so I counted it.) Certainly I wish things were moving faster, but the Dems haven’t been inactive in the issue as you suggest. Gays in the first and forth most populous states in the US can now be married due primarily to the actions of Dem politicians. People in NJ can’t be married due to the actions of a Republican politician. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2012, 6:04pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/82 "2012-02-22T18:04:17Z")
> [@Simplicio](#): > > Certainly I wish things were moving faster, but the Dems haven’t been inactive in the issue as you suggest. Gays in the first and forth most populous states in the US can now be married due primarily to the actions of Dem politicians. People in NJ can’t be married due to the actions of a Republican politician. Gays can’t be married in CA yet, although Democrats have tried to make it so. ETA: The gays who were married during a few months several years ago can stay married, but no new weddings yet. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 22, 2012, 6:25pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/83 "2012-02-22T18:25:16Z")
> [@Bricker](#): > > However, if it’s of any help, I think the GOP should adopt a plank affirming that marriage is a matter of state, not federal, purview, and urge the repeal of DOMA. No amount of calling marriage a “state issue” should take the same sex marriage debate out of the hands of the judiciary (both State and Federal) to determine Constitutional (both State and Federal) violations. While you and I likely disagree about whether or not there is a “right to marry” in the Constitution, it certainly is the purview of the judiciary to protect the rights of minorities against the tyranny of the majority. While I think a federal statute defining marriage either way would be a huge problem, having federal courts protect the Constitutional right to marry against State action is well within their “purview”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 22, 2012, 7:28pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/84 "2012-02-22T19:28:50Z")
> [@Der\_Trihs](#): > > Which is a major reason why I don’t take “states rights” arguments seriously. Even the people pushing them clearly don’t _actually_ believe them, so why should I? Perhaps you meant to say that some of the people pushing them don’t believe them. Clearly, I am pushing for states rights, and equally clearly, I would apply the concept to this situation. So I actually believe it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 22, 2012, 7:30pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/85 "2012-02-22T19:30:08Z")
> [@Hamlet](#): > > No amount of calling marriage a “state issue” should take the same sex marriage debate out of the hands of the judiciary (both State and Federal) to determine Constitutional (both State and Federal) violations. While you and I likely disagree about whether or not there is a “right to marry” in the Constitution, it certainly is the purview of the judiciary to protect the rights of minorities against the tyranny of the majority. While I think a federal statute defining marriage either way would be a huge problem, having federal courts protect the Constitutional right to marry against State action is well within their “purview”. Yes. If there is a federal constitutional right to same-sex marriage, it lies within the purview of federal courts to enforce it. We most likely disagree on the answer to that hypothetical. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [February 22, 2012, 7:39pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/86 "2012-02-22T19:39:31Z")
> [@amarinth](#): > > National - no. > But I think it will be on a lot of state party platforms. And as an issue, some states’ parties will use it to help draw voters to the polls. Hell, the Minnesota Democrats (Democratic-Farmer-Labor party) put this into their party platform at their State Convention – **in 1972,** 40 years ago! ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [February 22, 2012, 9:42pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/87 "2012-02-22T21:42:45Z")
It isn’t pragmatic to do so. This is triage, there is more than one swimmer in danger, and your best chance of saving the most swimmers is to pick moderate planks for your platform. Or we can all go under and watch birth control rights erode. Or environmental concerns become invisible. Or taxation on job creators disappear. We should not throw this baby under the bus, but it isnt time to announce that the screaming child needs to be on board for the entire three day cross country trip. ---
**Author:** ![Aji\_de\_Gallina](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aji_de_gallina/32/260_2.png) [@Aji\_de\_Gallina](https://boards.straightdope.com/u/Aji_de_Gallina)\ **Post date:** [February 22, 2012, 11:04pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/88 "2012-02-22T23:04:32Z")
> [@Simplicio](#): > > Except in California, DC, New Hampshire, New York, Vermont and Washington. Yeah but those states banned swimming becuase you may drown, so that they wouldn’t need lifeguards… ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 22, 2012, 11:31pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/89 "2012-02-22T23:31:44Z")
> [@Bricker](#): > > Yes. If there is a federal constitutional right to same-sex marriage, it lies within the purview of federal courts to enforce it. > > We most likely disagree on the answer to that hypothetical. I do hope you agree there’s a federal constitutional right to equal protection of the laws. :dubious: Just as I do hope it’s sunk into you by now that \*that \*is the fundamental issue, not that silly evasion of yours. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 23, 2012, 1:02am UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/90 "2012-02-23T01:02:10Z")
> [@Bricker](#): > > Yes. If there is a federal constitutional right to same-sex marriage, it lies within the purview of federal courts to enforce it. > > We most likely disagree on the answer to that hypothetical. The right to marry is not hypothetical at all. “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.” Loving v. Virginia. “Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required.” Zablocki v. Redhail. The right to marry is a fundamental right, the Supreme Court has not-hypothetically, held it so on more than one occasion. The issue is whether or not you define the right to marry solely based on those who have enjoyed it in the past and limit it to only heterosexuals. Personally I think defining a right only by those who have traditionally enjoyed it has proven to be specious logic. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 24, 2012, 7:22am UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/91 "2012-02-24T07:22:46Z")
> [@Simplicio](#): > > Except in California, DC, New Hampshire, New York, Vermont and Washington. …and Maryland ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2012, 4:19pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/92 "2012-02-24T16:19:39Z")
> [@Hamlet](#): > > The right to marry is not hypothetical at all. “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.” Loving v. Virginia. “Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required.” Zablocki v. Redhail. > > The right to marry is a fundamental right, the Supreme Court has not-hypothetically, held it so on more than one occasion. The issue is whether or not you define the right to marry solely based on those who have enjoyed it in the past and limit it to only heterosexuals. Personally I think defining a right only by those who have traditionally enjoyed it has proven to be specious logic. Yes. Which is why I said, “If there is a federal constitutional right to same-sex marriage…” adding the qualifier of ‘same-sex’ to distinguish that question from the already settled question of more traditional marriage. The Supreme Court in _Baker v. Nelson_ did not extend _Loving_’s reasoning to same-sex marriage. The Eighth Circuit in _Citizens for Equal Protection v. Bruning_ held unanimously that rational basis review was the correct standard and Nebraska’s forbidding same-sex marriage did not offend the Equal protection Clause. The Eleventh Circuit found no Equal Protection violation in a Florida statute forbidding same-sex couples from adopting. (Lofton v. Secretary of Dept. of Children & Family, 358 F. 3d 804 (2004)). Even the Ninth Circuit was careful not to fashion a broad right to same-sex marriage under the federal constitution. Same-sex marriage, as a constitutional right, may yet be broadly recognized, but it certainly has not been yet. And personally I think that the courts should not sit as a super-legislature. This is a fundamental change in our law of marriage and it should come – as it has in some states – from the operation of the legislature. It’s far better to work a change that way, far more consistent with our notion of self-governance. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 24, 2012, 4:31pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/93 "2012-02-24T16:31:12Z")
> [@Simplicio](#): > > …and Maryland I may have misunderstood where things stand in Maryland, but I read yesterday that Governor O’Malley plans to sign a law recognizing same-sex marriage next week. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 24, 2012, 4:33pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/94 "2012-02-24T16:33:13Z")
> [@Bricker](#): > > Same-sex marriage, as a constitutional right, may yet be broadly recognized, but it certainly has not been yet. And personally I think that the courts should not sit as a super-legislature. This is a fundamental change in our law of marriage and it should come – as it has in some states – from the operation of the legislature. I understand this position. And since you are sometimes quick to take offense, I am not critiquing you here, since what I am about to say has no evidence from your post in particular. But this comment makes me question conservativism in general. A tenet sometimes expressed here is something like the law of unintended consequences. What disturbs me is that this defensive position only ever seems to flow one way: the way that denies rights. We should be careful in what laws we write, because we cannot forsee all consequences. One consequence of something like equal protection should be, in my opinion, same-sex marriage. Perhaps it wasn’t intended; that’s tough: we are a nation of laws, not men. This would not be a case—in my view, as a layman! I am aware of that shortcoming!—of a judge “legislating from the bench.” It would be a case of judge looking at the law and applying it directly. Appeal to history can be an excellent guide, but it involves exactly as much interpretation as the position it is meant to avoid (judicial activism). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2012, 8:43pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/95 "2012-02-24T20:43:48Z")
> [@erislover](#): > > I understand this position. And since you are sometimes quick to take offense, I am not critiquing you here, since what I am about to say has no evidence from your post in particular. > > But this comment makes me question conservativism in general. A tenet sometimes expressed here is something like the law of unintended consequences. What disturbs me is that this defensive position only ever seems to flow one way: the way that denies rights. We should be careful in what laws we write, because we cannot forsee all consequences. One consequence of something like equal protection should be, in my opinion, same-sex marriage. Perhaps it wasn’t intended; that’s tough: we are a nation of laws, not men. This would not be a case—in my view, as a layman! I am aware of that shortcoming!—of a judge “legislating from the bench.” It would be a case of judge looking at the law and applying it directly. > > Appeal to history can be an excellent guide, but it involves exactly as much interpretation as the position it is meant to avoid (judicial activism). The problem with that approach is: if you take the position that a law written and passed by people who thought it meant A actually means B, and that determination is made by an unelected judge, it eviscerates our concept of self-governance. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [February 24, 2012, 8:47pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/96 "2012-02-24T20:47:06Z")
> [@Lobohan](#): > > Picture this: Someone is drowning. There are two people nearby. One doesn’t help because he’s sure he’s too weak a swimmer and the drowning person will kill them both. The other person has a pole and is pushing the person, trying to keep their head underwater. > > Both are equal in your opinion? Because that seems like what you’re suggesting. I’ve never seen a Democrat one that would even deign to pick up a pole, much less push someone with it! ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 24, 2012, 8:51pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/97 "2012-02-24T20:51:26Z")
> [@Bricker](#): > > The problem with that approach is: if you take the position that a law written and passed by people who thought it meant A actually means B, and that determination is made by an unelected judge, it eviscerates our concept of self-governance. It’s a good point. I will not dispute that judges are in a position where they can abuse their authority to claim up is down and black is white. But I feel this is a bit different than suggesting that “no state shall … deny to any person within its jurisdiction the equal protection of the laws” really means that we can deny people equal protection, we just messed up in the exact phrasing. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 24, 2012, 8:52pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/98 "2012-02-24T20:52:36Z")
> [@Marley23](#): > > I may have misunderstood where things stand in Maryland, but I read yesterday that Governor O’Malley plans to sign a law recognizing same-sex marriage next week. Yea, it passed the legislature almost simultaneously with this thread, so I added it since I thought it was amusing that almost at the same time people in this thread were arguing that the Dems weren’t doing anything to advance gay marriage, the Dem controlled legislature of Maryland was making gay marriage legal in another state and the Democratic governor was saying he’d sign it. It doesn’t go into effect until next year though, and will need to survive a ballot measure created to stop it, so its not a done deal yet. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 24, 2012, 8:58pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/99 "2012-02-24T20:58:53Z")
> [@Bricker](#): > > Same-sex marriage, as a constitutional right, may yet be broadly recognized, but it certainly has not been yet. And personally I think that the courts should not sit as a super-legislature. Protecting individual rights from the tyranny of the majority isn’t being a “super-legislature”. It’s the judiciary doing it’s job. Just as in Brown, Lawrence, or the myriad of other cases, the Supreme Court is a check on the legislature, not a “super legislature”. > [@Bricker](#): > > This is a fundamental change in our law of marriage and it should come – as it has in some states – from the operation of the legislature. It’s a change in who the law applies to, not the law. Those who have been traditionally denied the right to marry are now seeking the same standing under the law as those who were granted that right. It’s not a change in marriage, it’s a change in who can marry. Just as Loving was before it. And while it is nice to emphasize the few states where the change had come from legislature, I’ll point out that the great majority of the US has yet to change and those that have had to be dragged kicking and screaming (and Constitutional amending) by the judiciary to recognizing same sex marriage. > [@Bricker](#): > > It’s far better to work a change that way, far more consistent with our notion of self-governance. And less consistent with the ideals of checks and balances and protection of individual rights. I’m fond of the balance between majority rules and individual rights that our Constitution established, where the judiciary acts as a check on the actions of the majority through the legislature. If you wish to overturn those judicial rulings, be they same sex marriage or other civil rights cases, you can amend the Constitution. It seems to that me that it is much more in line with the principles of the Constitution that if the majority wants to deny civil rights to a group of people or certain rights in the Constitution, over the findings of the judiciary, the burden of amending should be on the majority rather than the minority. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [February 24, 2012, 9:22pm UTC](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556/100 "2012-02-24T21:22:57Z")
> [@Bricker](#): > > Yes. Which is why I said, “If there is a federal constitutional right to same-sex marriage…” adding the qualifier of ‘same-sex’ to distinguish that question from the already settled question of more traditional marriage. > > The Supreme Court in _Baker v. Nelson_ did not extend _Loving_’s reasoning to same-sex marriage. The Eighth Circuit in _Citizens for Equal Protection v. Bruning_ held unanimously that rational basis review was the correct standard and Nebraska’s forbidding same-sex marriage did not offend the Equal protection Clause. > > The Eleventh Circuit found no Equal Protection violation in a Florida statute forbidding same-sex couples from adopting. (Lofton v. Secretary of Dept. of Children & Family, 358 F. 3d 804 (2004)). > > Even the Ninth Circuit was careful not to fashion a broad right to same-sex marriage under the federal constitution. > > Same-sex marriage, as a constitutional right, may yet be broadly recognized, but it certainly has not been yet. And personally I think that the courts should not sit as a super-legislature. This is a fundamental change in our law of marriage and it should come – as it has in some states – from the operation of the legislature. It’s far better to work a change that way, far more consistent with our notion of self-governance. Back in the 1960’s, some legal scholar could have written nearly this same comment, with legal citations going back about a hundred years, explaining why there was no constitutional right for people of different races to get married. Now, 50 years later, schoolchildren are appalled, even unbelieving, when you tell them of this history. I sustect that it will be less than 50 years before Bricker’s arguments are looked at the same way as those of the segregationists of that era. [Previous page](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556.md?page=4) [Next page](https://boards.straightdope.com/t/will-marriage-equality-be-a-part-of-the-democratic-party-platform-this-year/613556.md?page=6)