Hmm. I may owe you an apology here. I could have sworn it was with you I got into a long, drawn-out debate about the Gratz case, but a quick effort at refreshing your poor recollection with the search engine has made it seem pretty likely that it is I with the poor recollection.
Sorry about that. I somehow confused you with someone else.
Assuming you don’t wish to retroactively make my point by fervently taking up the cause of U of M’s admission racial point preferences as they existed in the late 1990s, I apologize.
Just in passing, and not connected with jurisprudence, I’ve seen summaries of several studies in regard to the relative stability and fulfillment of persons brought up by single parents, gay couples, and “normal” mixed-sex couples. There seemed to be significant evidence that:
Two parents are significantly better than one. A single parent may be an exceptional caregiver, but on an overall, statistical universe basis, having two parental units is normally a benefit compared to one.
Several studies (top of head number: 6, but I reserve the right to be wrong) showed no difference in the stability and ability to function as adult between children raised by mixed-sex and by gay couples. One study did identify a difference – that a gay couple was more likely to produce an emotionally healthy child than a mixed-sex couple. The researchers speculated that this was an artifact of the fact that most children of gay couples are adoptive, or otherwise chosen (the gay bio-parent fighting for custody for the child’s sake, where the other parent is not providing adequate parenting), while children of mixed-sex couples run the gamut from chosen or planned and cherished to accidental, neglected, and resented, introducing a skewing factor into the mix.
It’s hard to imagine a sociological study published in a peer review jouranl that did not control for factors like adoption. I wouldn’t put any faith in such a study myself, even though it could very well turn out that gay couples made overall better parents than staight couples.
Hamlet: So, you’re saying that all those judges today who see a “rational basis” test for not sanctioning SSM are merely bigots who are interpreting the law through the lens of their own personal prejudices? I’m not saying that I think that is an impossibility, but I’m curious as to what you think. I know you didn’t say that in your post, but it’s hard to read it any other way.
If I were trying to do a study on the effectiveness of parents in all these different cases, the best selection of groups would probably be something like;
Single* biological children of opposite-sex parents.
Single adoptive children of opposite-sex parents.
Single adoptive children of same-sex parents.
Single adoptive children with only a male parent.
Single adoptive children with only a female parent.
It’s a shame this would have to be a long-term study; i’m interested in this area and I have to write my dissertation this year.
*Just single because it’s easier to control for variables. Many studies show that siblings can have as much an effect on you as your parents, so it’d just be to uncomplicate things.
Mmm, I think I saw that story on TV. Have to feel sorry for the kid - not only are his/her parents likely to have serious health problems while they’re still young, the mother’s a child psychiatrist! Ouch.
Apology accepted. Since I had to use Westlaw to find out who Jennifer Gratz was, I’m positive it wasn’t me you had the discussion with.
I wouldn’t say all the judges who rule against SSM are bigots. I think the more precise way of saying it would be that judges who rule against SSM are more accepting of the dolled-up, public face that the bigotry behind the anti-SSM movement puts on in courts. They are willing to allow the majority to deny homosexuals equal rights on what I find, and (as Polycarp pointed out more and more studies are starting to indicate) to be untenable assumptions. The idea that a civil marriage depends on procreative ability or that there must be one mother and one father to properly raise a child are the reasons given in court for disallowing SSM, but the real reason so many Americans are against recognition of SSM is not, in my estimation, so pretty.
There are people, such as yourself and Bricker, who support the right to same sex marriage, but are loathe to have the judiciary involved in enforcing it. I do not think you are bigots. I hope that neither you nor Bricker are persuaded by the arguments advanced by the court-face of the anti-SSM crowd, but you do seem willing to defer far too much to those arguments. In my view, that level of deference is unwarranted.
Why is this such a stretch? As Polycarp pointed out, surmounting the rational basis hurdle is like being spelling bee champ on the short bus. It’s a damned easy rationalization to fall back on, arguably sound or not from a jurisprudential standpoint. My own suspicions are a bit more kind to humanity, but I have them only by summoning up the last shreds of idealism I possess. I could easily be swayed to suspecting other motives for rationalizations.
That seems like a distinction without a difference. Why are they willing to accept this “dolled-up” face if not for their own prejudices? We’re not talking about naive laymen here, but some of the best legal minds in the country.
I think there is a large segement of the population that are true bigots on this issue, but I think a lot of people simply are ignorant-- they really just don’t understand. Many people, I believe, just can’t wrap their minds around the idea that same-sex romantic love is the same as opposite-sex romantic love. It really isn’t intuitively obvious that it is, and even our own scientific community did not think so until a few decades ago. I hesitate to call that kind of ignorance “bigotry”. I think you can pretty much tell the difference between those two groups by how accepting they are of civil unions-- there are plenty of people who are dead set against even allowing civil union recognition of same-sex couples. Those are the bigots, IMO.
I don’t think so. Many judges, like the majority in the NY case, hold the view, like I believe you do, that judges need to defer to the legislature even in cases such as this where a minority are being denied equal rights. It’s a wrongheaded view, but it is one that does not require the holder to be a bigot. Heck, it doesn’t even require the holder to acknowledge or understand the underlying bigotry against homosexuals that drives the anti-SSM movement.
Scalia could qualify as a “best legal mind”, but that doesn’t mean he isn’t wrong about the role of the judiciary in protecting minorities from the tyranny of the majority. There are great legal minds on both sides of the issue. Luckily, I happen to be on the side that is right.
But, ask yourself, do you believe that procreation is an undeniable part of a civil marriage? Do you believe that homosexual parents are, as a group, less capable as heterosexual parents at raising children? If you believe as I think you do, that those arguments are unpersuasive, why do you defer to the legislature in making their determinations? I’m guessing it’s because of your view on the role of the judiciary in determining rights, and not because you believe the rationale happily presented by the anti-SSM crowd. However, I think differently on the role of the judiciary, and I think that rationale is a load of crap.
Maybe I use bigotry too broadly. I think people can be bigots both through active hatred and through ignorance. The underlying assumptions driving the SSM movement are, to my mind, based on the belief the homosexuality is a sin and that homosexuals are somehow unable to join in a fully committed relationship and raise children. That belief can come from both active hatred and simple ignorance. But, regardless of where it comes from, that belief is bigoted and has no place in the laws of an enlightened country.
It does require one of two things of the judge: either the belief that there is in fact no bigotry occurring, i.e. ignorance (and, given that he’s just heard the arguments, *willful * ignorance); or acceptance of bigotry’s existence despite having the power to end its effects, i.e. bigotry itself.
Jamie Raskin: “Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible.”
The role of the judiciary in these types of cases is to uphold the constitution, which expicitly allows the tyranny of the majority in certain circumstances. I think this is one of them-- for the reason we’ve discussed ad nauseum in other threads. The only way to eliminate the tyranny of the majority is to abondon deomcracy.
No and no to your the first two questions. Unfortunately for gays, this country hasn’t reached the point where it is willing to recognize them as a protected minority. That may vary by state, and NY might have some legislative history that I’m unaware of that does indicate they are a protected minority. If that is the case, then I could see where the judiciary would rule to void anti-SSM laws. But I think the justices considered that issue in this case and determined otherwise. In fact, you can see the majoirty saying (between the lines) that they think the legislature should act to elevate gays to a protected minority-- but until they do, the court will not act to preempt them.
Only by denial on your part, not argument. The 14th amendment, and the duties it imposes on the courts when Congress ignores it, are pretty damn clear no matter what you’d prefer to think.
There ain’t enough :rolleyes: smilies for somebody who shows absolutely no conception of either the purpose behind separation of powers or of the purpose of a Constitution. Since that has been explained to *you * ad nauseam, but obviously without effect, there seems no point in referring you to a middle school Civics text on the matter.
Having protections against mob rule under the Constitution means *abandoning * democracy - Og Almighty. :rolleyes:
As Elvis pointed out (in his usual … unorthodox … fashion), a vital role of the judiciary is to act as a check against the will of the majority. By protecting the rights of its citizens, the judicary IS upholding the constitution.
Again, as Elvis pointed out, this is a horrible overstatement. The founders specifically rejected a form of government based solely on democracy and instead relied on a system of checks and balances, judicial review, and protection of rights. And thank heavens for that.
You don’t even have to elevate homosexuals to a protected majority. The prohibition against SSM doesn’t, in my and the Mass. Supreme Court view, even meet the rational basis test. That was the point of my asking you those questions: to emphasize that the supposed rationale of banning SSM is, not only a lie to cover-up blatant bigotry, but also irrational. You and Bricker may say that the rationales are unpersuasive to you, but that they are rational, but I refuse to accord those lies pretending to be reasons, the deference you two do.
Look, I can think of dozens of rights that I think citizens should have, but I’m not so arrogant as to assume that the courts should use my list as opposed to those that we, as a people, have collectively agreed upon.
Well, as you noted earlier, we simply have a different view of the role of the courts.
But those weren’t the only questions that the majority considered. I don’t pretend to fully understand how one weighs the pros and cons in a rational basis test except to know that “rational” isn’t the best descpritor of that process and that the bar is quite low. When I see considerable disagreement on the subject, my tendancy is to err on thte side of judicial restraint, and to let the people, through their legislators, sort out how they want to govern themselves. Let’s remember that the MA SC decision was 4-3 on this matter, so even in that decision it clearly wasn’t blindingly obvious.
It may well be that the NY case should have been decided as you think. I don’t know the details of the legislative history in NY on this subject. However, at the federal level, it’s clear to me that the people have spoken loudly and clearly and the Court would be unwise to act contrarily.
The problem is that without “bite”, it’s lower than just low. I’m having a hard time coming up with anything that might come before the courts that couldn’t be justified either for or against using the rational basis test. The problem to me is that any court of any persuasion can make any damned argument they want, and it can be defensible (albeit sometimes with the roll of the eyes) if that’s the test we use. Another problem is narrowing or widening the focus of the issue to reach the conclusion a judge has already predetermined. If you want to find for same-sex marriage, just argue that marriage is a fundamental right, which then elevates you up to strict scrutiny. If you want to find against it, narrow the argument to only gay marriage, and claim that it’s not a fundamental right, by using a definition based on a bizarre interpretation of an earlier decision, thus dropping it down to the rational basis level.
It’s basically bullshit no matter which way a court decides such cases, but the difference between us is that in cases where it can be decided either way, I’m going to lean towards more equality, not less. In other words, I’d give the rational basis test some teeth, where the state’s interest is weighed against the individual’s interest. As an alternative, I’d start with a top down approach in cases that are handling individual freedoms, where we start with the strict scrutiny test unless there is a compelling reason to lower the bar.
First, it’s not the court that determines that the law has a rational basis, it’s the legislature. What the court does, is review the legislature’s alleged rational basis and agree that, yeah, they did have a rational basis for passing that law. It doesn’t have to be the best one, it doesn’t have to even be a good one, just one that ties the law they did pass to a legitimate function of government. If the state chooses to decide that no person who has ever engaged in gay sex is eligible to serve on a police force, and they have the right to decide the qualifications for police, and specify in their legislatives findings some remotely plausible reason why engaging in gay sex and in police work are incompatible, it’s not for the courts to call that discriminatory; it’s a rational basis. A dumb one, in my opinion and nearly everyone else’s here, but it passes the test.
It is possible to fail the “rational basis” test, though it takes some doing. As I pointed out above, the finding in Romer v. Evans was that Amendment II to the Colorado State Constitution, essentially prohibiting the state and any of its political subdivisions from entertaining any claim of discrimination against gay people, failed the test.
For a fundamental right, the bar is raised. A fundamental right can be violated only when the law is “closely related to a compelling government interest.” (Those are terms of legal art.)
Marriage has been found to be a fundamental right, in Loving v Virginia. Only SCOTUS can overrule that finding. However, the courts have declined to find that denying gay couples the right to marry violates their equal protection under the law. In the instant case, the NYCoA reviewed the jurisprudence to date, found that SCOTUS had declined to find an equal protection violation in the case Bricker cited, examined New York law and failed to find in New York’s Constitution a protection more stringent than the Federal equal protection clause, and determined that they were bound by the SCOTUS precedent.
There are any number of ways to argue to the contrary, but a court honoring binding precedent in the absence of a clear argument why it should be distinguished, is doing its job properly. It’s something like pitting a city clerk for not issuing a marriage license in violation of state law to see it otherwise.
And, as noted, this puts the onus on the New York State Legislature to change the law.
Isn’t the court the one that decides whether that rational basis is valid?
I think this is answering the question I just asked. If so, I don’t see what the problem with my post was. I’m aware that the court doesn’t come up with the rationale itself, but that it decides whether it’s valid or not (assuming my first question is answered in the affirmative), but I’m arguing that it’s easy for the court to go either way depending on their prejudices.
Which is why I consider it to be next to worthless.
Which is again why I consider the test worthless.
But wouldn’t Scalia disagree with you that it failed the test?
My point here was that a court can freely admit to the fact that marriage a fundamental right, but by narrowing the focus to gay marriage, and then, by applying some linguistic voodoo, determine that a prior decision required that fundamental right’s have a deeply rooted history, they can then claim that this particular subset of marriage is not a fundamental right, thus not requiring strict scrutiny.
Once again, I don’t find it nearly as clear cut as you do. I think if it was so, all such decisions would be unanimous.
Polycarp, I reread my post to try to determine if I mistated something, as I didn’t think I made the claim that the court came up with the rational basis myself. I’m guessing it’s the statement “The problem to me is that any court of any persuasion can make any damned argument they want”. That’s not meant as “The court comes up with the rational basis”, but instead “The court can easily argue for or against the validity of the provided rational basis and defend their argument”, which is why I think it’s a pretty useless test. If it’s not that statement that you took issue with, I guess we’ll continue down this path.
I do think I have a pretty decent understanding of the levels of scrutiny and when they apply (as well as how easy it can be to define things in such a way that a different level applies), whether I use the proper legaleze or not, but would be happy to be educated if I misunderstand some application of it. I just don’t think that’s the case yet.
Poly, while I hate posting three posts in a row to a thread, I can’t help but think that we actually agree on this issue, but are caught up in semantics (correct me if I’m wrong), so I’ll try to sum up the issue as I see it.
My understanding is that stricty scrutiny is applied when the conflict involves “suspect classifications” and/or fundamental rights.
Based on the fact that I consider marriage to be a fundamental right (and I think Loving agrees with me), I think strict scrutiny is called for in conflicts surrounding gay marriage. To me, gay marriage is a form of marriage.
Since the strict scrutiny test wasn’t applied in the NYCOA decision, I think they decided incorrectly.
My understanding of the stance of the proponents of the NYCOA decision (and I hope they’ll correct me if their stance is different) is that:
They agree with me here.
They consider marriage to be a fundamental right, but only when that marriage is between a man and a women. They reach this conclusion through a narrow reading of Washington v. Glucksberg’s definition of a fundamental right that states that a fundamental right is “deeply rooted in this Nation’s history and tradition.”
Since they don’t consider gay marriage to be a fundamental right, and since sexual orientation isn’t currently a suspect classification, the strict scrutiny test isn’t the one applied. They also don’t find the intermediate scrutiny test to be warranted, so we’re left with the rational basis test.
To me the biggest hangup seems to be the definition of a fundamental right. I argued earlier that I don’t think Moore v. East Cleveland made the statement that a right must be deeply rooted in tradition to be fundamental, no matter what a reading of Washington v. Glucksberg might have to say in the matter (and I don’t even agree with Bricker that it’s a required definition in that case, as they add “implicit in the concept of ordered liberty” as an option).
If the above is correct, I think the argument comes down to the definition of a fundamental right. I’ll also go ahead and state in advance that I think marriage (including gay marriage) is a fundamental right, no matter what a court might say, even though I’ll be happy to debate whether current law agrees with me or not.
