Ok, thanks again.
Sure looks like it, from the first sentence. The text: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
That’s an interesting question, and it will be interesting to see what our resident lawyers have to say. I can see two arguments: That the amendment meant “gays are allowed to marry” cannot be inferred from wording that does not explicitly allow them to marry. OTOH, the amendment does begin by saying that marriage in the United States is defined as being between one man and one woman. That would seem to forbid the states from declaring otherwise, either by statutue or by state constitutional amendment. What if, for example, a state decided to declare that Blacks could be enslaved? That clearly violates the 13th amendment, so cannot be enforced at the state level no matter what the state does.
I supsect (or at least I hope) that any backlash* federal amendment that would actually pass thru both Houses of Congress and the states would be less restrictive than the one proposed this year, and would allow states to explicitly legalize SSM, but it would disallow them from infering it unless it was explicitly allowed. I’m not sure that enough states would be willing to give up their sovereignty on this issue to allow such a restrictive amendment to pass.
*If, say, the SCOTUS declared that SSM was mandated by the federal constitution and Congress felled compelled to act to thwart that decision.
I think the intent was to forclose any “fuzzy” interpretation, such as what we’ve been discussing above; finding that a state DP or EP clause required same-sex marriage recognition.
But the plain words of the amendment say that no state could amend its constitution to permit same-sex marriage. I don’t think it would prevent a state from passing a law permitting it, but a state could not, even if so minded, enshrine protection of same-sex marriage into its constitution.
That would be a bad idea. The principle of federalism suggests that states SHOULD be able to so amend their constitutions if they wish. Just another reason the FMA was a bad idea.
Please strike “I don’t think it would prevent a state from passing a law permitting it…” from my response above.
Well, yeah, it did. It said that our families are not worthy of equal treatment and equal protection under the law.
Sex discrimination is subject to intermediate scrutiny. And (as the Hawaii court figured out a decade ago), restricting same-sex marriage isn’t discrimination based on sexual orientation; it’s discrimination based on sex. Rational review is and always has been the wrong standard.
No, it didn’t. It could have figured out that there is no rational basis for preventing same-sex couples from marrying and in accordance with that realization ordered the state to start recognizing them. No violation of separation of powers, no “activist judges,” just a court doing its job correctly and disposing of irrational bigotry.
This is so ridiculous, in light of the fact that the fucking court said right in the same decision that if it believed the marriage restriction were based solely on discrimination it would strike it down. Plaintiffs could have walked into the court yesterday having never before asserted any right to marry and had the ban stricken if the court had figured that out. This “not deeply rooted” business is more bullshit. And how long exactly do people have to assert a right before it becomes deeply rooted? Some in the gay community have been asserting a right to marry for 50 years or more and there’s legal action on it going back more than 30. So what’s the magic timeframe?
(bolding mine)
The debate has moved beyond this, but I didn’t see anyone discussing this, and I kind of scratched my head on this considering that you don’t seem to be the type to accept common wisdom at face value. I am not saying this with any rancor or trying to start anything, but why doesn’t it seem any more unreasonable to say that than say ‘kids are better off with two white parents’ (or even ‘kids are better off with parents the same race as they are’), or ‘kids are better off with Mormon parents’, or any other group you’d like to insert? Is it because you feel inherent differences in sex will allow for a more full ‘parenting skillset’ between the couple,or is it because of the way the family will be percieved by society, or what?
No, it didn’t say you’re not worthy. It said that the current state of equal protection law does not cover this particular right. It said that this is a question that the legislature should decide, not the courts.
Here you’ve got a point. There is no particular reason to simply assert that sex discrimination is deserving of intermediate scrutiny but sexual preferance discrimination is deserving only of the rational basis test. But they didn’t write that rule. They said that in this area of analysis, New York and federal law are essentially the same, and that it’s well-established that in federal law, the rational basis test is the one used.
I’m sorry, but I don’t agree. The legislature could rationally find that children are best served with one parent of each sex. You may not agree with the finding; that doesn’t make it impossible for a rational decision-maker to reach that conclusion.
The “magic timeframe” in ‘deeply rooted’ analysis has to do with looking at how long the right has been recognized and accepted, not how long a few people in a numerically small community have been asserting it.
49 of the fifty states prohibit same-sex marriage. Before the Massachusetts decision, no state in the history of the union permitted same-sex marriage. That’s a pretty clear indication that same-sex marriage is not deeply rooted in our nation’s tradition.
I agree with the commentary from Andrew Sullivan. A decision the other way would have hurt more than helped. This decision keeps the impetus on the legislatures, and the trend is positive there. There will come a time when same-sex marriage is available, and it will be brought about the right way, the way a representative democratic republic should enact sweeping change in the law.
Not to answer for John, but a rational reason could be that since there are both men and women in the world, it’s valuable to give kids the opportunity to observe and model one of each in the role of parents.
Maybe I should clarify: I am not using the proposal of the FMA as a legal argument that SSM is already legal. I am using it to highlight the logical argument that laws are already in place that would prohibit singling out people to prevent them from being married. The wording of the FMA would force courts to not decide that SSM is already legal.
A little more of my thinking:
As I see it, the plantiffs in this case are arguing that SSM should allowed, based on the application of anti-discrimination laws. That is, when all legal writings and decisions are taken into account, the sum total is that SSM already “is” legal. No new laws need to be written to allow two people of the same sex to marry. It is only the interpretation of existing laws that needs to be changed, not the laws themselves.
There is now the possibility that SSM is legal, using the above mentioned arguments, and the possibility that it is already illegal, using other arguments. Why would there need to be an amendment to keep it illegal? If it’s already illegal, no such amendment is required. If, OTOH, the way the current laws (and descisions) are written make SSM legal, then such an amendment would be required to make it illegal.
Given that the FMA introduces new language and restriction on laws already in place, it would seem to me that this is only necessary if the laws already in place grant the rights that the FMA seeks to prohibit.
You left off the most important part: all other things being equal. IOW, given equal parenting skill, equal income, equal family size, equal everything-else-you-can-think-of, a kid is better off with both a mother and a father. Unless you think the genders are identical, this seems like the safe assumption (lacking definitive information to the contrary) since it’s the way humans have organized themselves for as long we know.
it’s an empirical fact the majority of kids in the world have been raised w/o white parents, so we have no reason to assume, a priori, that whites make better parents.
No - the FMA says: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
That stops a state from passing a law legalizing it. In other words, proponents can claim it’s necessary to prevent a state from changing its law.
No - the FMA says: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
That stops a state from passing a law legalizing it. In other words, proponents can claim it’s necessary to prevent a state from changing its law.
I think we are hung up here on the “rational basis” test. Wikipedia on (federal) rational basis. The bottom line is that when applying the rational basis test, the court must only find that the legislature had some rational basis for passing the law it did, that the law in some way is related to advancing one of the purposes of government. It does not have to be the best reason, or even a particularly good reason, just a reason the legislature found sound on which to found its legislation. It’s extremely deferential towards the legislature, in its effect.
As applied here, it is not asking, “Is it reasonable to allow gay marriages?” – which all or nearly all of us arguing here would agree it is – but rather, “Is there some reasonable ground on which a legislature might recognize traditional monogamous heterosexual marriages as the sole form of marriage it will license?” And yes, there are reasons in history for doing so. It’s not the right, just thing to do. It’s not, IMO, proper grounds for delimiting marriage as it does. But it is something that a reasonable person might see a connection between purpose and law – and the court defers to the legislature’s decision. Note too that SCOTUS has, in a couple of half-baked cases, held this, and the NYCoA is bound by its precedent.
I maintain that Romer v. Evans constitutes precedent that says that discrimination which acts specifically to harm gay people fails the rational basis test.
It would appear, however, that in my reading of this decision to vitiate laws that disproportionately harm gay people, I am somewhat alone.
But I do agree with Andrew Sullivan. The onus now is directly upon the legislature: The Court has said, “You guys made a finding, and we’re not presently competent to overturn it. If New York will license gay marriages, it’s up to you to pass a law permitting it.” And from what I know of the New York State Legislature, there are very few out-and-out homophobes sitting on it who will, faced with that challenge, fight for the one man/one woman definition as anything more than tradition.
Not too alone, as I agree with that assessment.
I’m very intersted to hear from the folks of the great state of NY about this. As some may know, the CA narrowly passed a SSM bill lat year, but it was vetoed by Arnold. The bill barely squeaked thru, and most political forecasters had expected it to fail even up to the last minute. I supsect the NY governor would not veto such a bill coming out of the legislature (given his stance on recognition of SSM from other states). What do we actually know about the legislature? In CA the vote was pretty much strickly along party lines (Dems for, Pubs against).
Romer is distinguished from the instant case because its reach was so broad. The referendum Romer overturned would have affected hundreds of different situations, from housing to jobs to car-buying. The Romer court would undoubtedly have upheld a law targeted at a single, particular government end, as exists here. What killed the Colorado law was the fact that it touched so many different areas that it was impossible for the court to come up with any possible rationale for it other than, “Colorado don’t like gays.”
So yes, if you’re reading Romer for the proposition that all laws which have the effect of specifically disadvantaging gay people will fail the rational basis test, you’re wrong.
From my limited experience, I am pretty sure that genders aren’t identical (and don’t think I made any statement to indicate i did). So I guess it kind of falls into the ‘different skillsets’ (although I think Bricker phrased it much better than i did by avoiding my stupid jargon) with a dash of ‘that’s how we always did it’ (which doesn’t really hold water with me). I can definitely see the logic behind it. I guess I still have to say that I think you are just working on assumptions, or ‘common wisdom’. Anyway, I’m not really here to debate it - all I really wanted was a clarification (and if I recall correctly, you don’t have a problem with gay marriage being legal, so you wouldn’t necessarily fall into ‘society’ mentioned above). Thanks for explaining.
While I don’t for a second believe that the tone of your skin has any bearing on your parenting skills, the fact that your child made it to reproductive age and started a family of their own does not necessarily mean that you were a good parent.
Two things. First, I am little confused whether or not Bricker thinks that the FMA will prevent states from allowing SSM through actions by their state legislatures, as he has stated is the way that he feels is the best way. I just want to make sure I understand how a lawyer reads the FMA, becuase as a non-lawyer, I read it as preventing same sex couples the option of marriage in any state by any means.
Secondly, for those who say that we are not being shit on by the court, and that this is the way these things should be ruled on, it’s pretty hard to see that for those of us on the ground with crap in our eyes. It’s not exactly easy to understand why the ideals that went into our national and state constitutions about equality under the law don’t actually apply to us. From my point of view, I am equal to heterosexual couples, and my relationship has equal dignity. To be repeatedly told that it does not pisses me off, it doesn’t convince me of any bullshit about the majesty of the law. I will continue to fight, and I will not respect using bullshit justifications to shit on the ideals that the constitution stands for.
Yes, I think it would prevent states from doing what they should: using their legislatures to pass laws permitting same-sex marriage. This is why the FMA in its current form is a Bad Thing.
I certainly understand that when you’re the person who is being screwed by the system, it’s hard to wax rhapsodic about how wonderful the system is.
But all I can tell you is that the system doesn’t quite work as you are picturing. You’re thinking that we should take the Constitution as a general sort of guide - not so much owrried about the specific words, or the history, but the general principles you say it stands for, and reach a decision based on that.
The problem with that approach is that there are other people with their own ideas about what the general principles ought to be, and so we can’t just apply the “general principles” – we have to have a means to determine what they are i the face of different groups urging different results.
And that’s why we MUST rely on the words, and not the “general principles.” The words approach is not perfect, but it’s much less subject to being twisted by interpretation into some “flavor of the month” result. We have the words, and a means to amend those words if we wish. THAT is how we should bring about change.
Thank you for your clarification, I knew you were against it, but I was confused by your view of its scope.
I don’t disagree with you in matter of constitutional interpertation, we should use the words. To me, the words say that I have equal rights. Not just that, but I think that the bans on same-sex marriage that are not in state constitutions fail even the impossible to fail rational basis test. I contend that refusal to allow SSM is based in nothing more than prejudice, that there is no other reason. Of course, the court disagrees with me, and I will have to live with that until we can convince state legislatures and govenors otherwise, like we almost did in California. The NY court said in their decision that if they believed it was based on nothing more than prejudice, they would have struck down the ban. I believe that they knew that it was, but were either too cowardly or prejudiced themselves to decide the way the state constitution requires.
In the meantime, I am still going to be pissed off that the courts are not doing their job, and accept raw prejudice as a rational basis.
As far as the political aspect goes I disagree with Andrew Sullivan and others who say that there would have been more of a backlash. I think that the backlash has happened, the states that are going to ban SSM in their state constitutions have done so or will be doing so in the fall elections (like Idaho). Our best chance is to fight for it as hard as we can in the states that we can. After awhile, once it is normal in those states it will spread nationwide.