The backlash you need to worry about is at the federal level, not at the state level. I agree that those states dead set against SSM have already taken steps to amend their constitutions (or will do so at some point). But a modified* FMA could very well get thru Congress and the states if there was a federal SC decision mandating SSM, or if there was a rash of state rulings doing the same. What constitutes a “rash of rulings”? Hard to say. MA + NY alone wouldn’t do it, but what if there were 10, 12 or 15 state court rulings and no legislative successes? Better to have a few legislative successes in the states to get the ball rolling. I don’t think those few legislative successes are that far away. CA came very close, and NY may very well do it.
*modified so that states could legalize SSM if they chose to, but it could not be inferredto be legal by the courts.
Pataki will veto it. It sucks to have a Governor deluded enough to think he can be the Republican presidential nominee. Spitzer will sign it. The way the districts are gerrymandered could make it tough in the Senate, but it should make it. This is an election year.
I appreciate the jurisprudence angle of the debate a great deal, and all that has been said above seems complete enough that I have nothing more to offer on that subject of any great value.
What I have considered, and it hasn’t been delved into at all here, ever since the SJCoMA decision, is simple, cynical strategy. I suspect in many instances judges carry an element of ideological bias to their decisions which they then back up with arguably sound jurisprudence. It wouldn’t surprise me at all if the majority of the SJCoMA justices who ruled in favor of gay marriage could have argued as well for a decision much like the NY ruling, and chose on that basis a path they felt was more morally sound.
The upshot of that decision, however, has been a nearly nationwide backlash against gay marriage which has led to a number of states amending their constitutions to forbid not only gay marriage, but even the granting of any special status to same-sex civil unions. I can only regard, strategically, the MA victory as a national catastrophe for sexual equality. It will likely be a very long time before those states which have constitutionally forbidden same-sex marriage reverse those decisions. Right or wrong, the SJCoMA kicked the stone that started an avalanche of paranoia about “legislating from the bench”. Had the NY decision come first, perhaps some of that paranoia might have been reduced or eliminated.
I have to think judges can appreciate these nuances, that at least some of them can simply be pragmatic, and think about what they do in, dare I say it, a political light. How none of this occurred to the SJCoMA, I don’t know. It occurred to me, my earliest posts on the subject attest to this, and things actually turned out worse than I feared they might. The SJCoMA’s decision probably even played a role in getting Bush reelected.
I must reluctantly, for reasons that would probably offend anyone here who believes judges rule only out of their respect for a particular judicial philosophy that is neutral to political ideology, express my approval for the NY decision. It removes some of the fear from the reactionaries, and endorses (even perhaps tacitly encourages) a popular referendum on the subject. Only a third of New Yorkers are in favor of barring same-sex marriage, and gays have some powerful and highly visible allies in the Empire State. If the people of NY can coax their legislaive representatives to honor gay marriage, they will have far surpassed the example of MA.
Until such time as reproducing is made a legal requirement of marriage, any finding that restricts marriage on the basis of what’s supposedly best for children who may never even exist is ridiculous. It may be enough in the minds of bigots to pass the incorrectly-applied rationality test but it’s still goddamn fucking stupid. And I continue to maintain that the court used the wrong test. Marriage discrimination is sex discrimination.
And yet New York allows same-sex couples to adopt each others’ children. And yet New York allows mixed-sex couples who are incapable of or have no intention of having children to marry. And yet single people are allowed to have children in New York and New York married couples with children are allowed to divorce.
As we in Mass. have known for a couple of years - or else we’d be happily accepting marriage license fees for out of state gay couples, too.
Yet if each of those had been individual laws they’d have been acceptable. Even the one forbidding marriage. Yet the underlying “rational” basis would have been just the same.
I have another question. If the court found that there was a rational basis for saying that two opposite sex parents are better than two same sex parents, isn’t that a sex discrimination issue? It’s suggesting that in some way a parent of one sex is needed to balance the pros and cons of the other, and so suggests that (and acts as though) a member of one sex has those pros and cons; ergo, sex discrimination.
I know this is a vent… but I have to point out that the “but yet, some other aspect doesn’t fit…” line of argument is utterly irrelevant to the rational basis test.
In essence, yeah. And that’s the key problem to be resolved in the arguments here.
Is there a “freedom to Skype”? Not an entitlement to have a computer, speakers/headphones and mike, and Internet access with Skype loaded, but the right to use Skype if you have those things without government let or hindrance. I believe most courts would say yes, completely: the telephone is a protected mode of speech and has been for over a hundred years; this is just a variant on telephonic contact using the Internet. Old general principle, freedom of speech, extends to cover new application.
At issue: freedom to contract marriage in a form recognizable at law. Under present jurisprudence, Federal equal protection does not extend to require same-sex marriages be recognized on a par with traditional opposite-sex monogamous ones. Some state equal protection clauses do. In either case, it’s a constitutional issue. And as noted, individual rights can be abrogated only under certain circumstances.
Can you explain for us layman where exactly that definition is laid down in Moore v. East Cleveland? I acknowledge that it maintains that the institution of the family is protected because it is deeply rooted in the nation’s history and tradition, but nowhere that that is a requirement for a right to be considered fundamental. Perhaps I missed it, or I’m not reading enough into the text that is there.
Vanilla is a flavor of ice cream, but not a requirement for something to be classified as ice cream.
But where, precisely, is the link that says this is a fundamental right?
It’s actually in Washington v. Glucksberg, 521 U. S. 702 (1997):
So it’s a little bit of “connect the dots.” Glucksberg quotes Moore’s language about ‘deeply rooted’ and says they are fundamental rights and liberties.
Without turning this into a “love-fest” destined to get this moved from the Pit to MPSIMS, I do want to thank Bricker for trying to explain to us the legal reasoning behind these decisions. I know that you support SSM-rights and are not agreeing with the NYCoA for a bigotted reason, but rather for a legally logical one. (It’s kinda like my agreeing with the Supreme Court’s decision to allow BSA to exclude people, but my disagreement with the BSA.) I also know that you would like to see a legislative movement to make SSM once and for all permitted. I hope you don’t get annoyed by the folks (like me) who have a different way of looking at the problem, and don’t understand / agree with the “legal” reasoning.
(Of course, I still think my way of thinking is right…)
Understood. I don’t agree with the NYCoA decision, either. However, there are, obviously, people who think the arguments have legal validity (if not moral logic). As such, I find it enlightening to know what the reasoning is.
And fascinating that your ardent defense of “equal” protection vanishes when it’s someone like Jennifer Gratz asking to be protected from discrimination, eh?
Thanks, I liked it. I just don’t see the beliefs that homosexuals, as a class, are somehow worse parents, that procreation is a necessity for marriage, or that heterosexuals are more stable as “rational”. I also do not think the current backlash against SSM is anything more than bigoted dislike for those who are not like the majority put into law. Kinda like all the arguments against miscegenation, which were widely accepted as “rational” by courts.
Show me one place I’ve ever discussed, let alone argued against, Jennifer Gratz, you insufferable, egotistical blowhard. I’ll wait.
It does make one wonder if, in a certain historical context, it is possible to be both rational and bigoted, i.e. “common sense” favors the intolerant argument, and hence “common sense” must change first.
