There’s been lots of outrage on the left about the supposedly ultra liberal PBS offering CNN’s “Crossfire” conversative Tucker Carlson his own current affairs program, so I thought I’d check it out.
As fate would have it, tonight he interviewed Jonathan Rauch about gay marriage. Remarkably there are only two heel marks on my television (from having heaved a shoe at the thing—rather constrained of me, all in all). I’ll give credit where it’s due. Carlson was very respectful and he actually got me to thinking about the idea that DOMA and state laws banning gay marriage are not necessarily as evil as I’ve considered them so far. Carlson himself later admitted to two other guests (Richard Cohen and Zanny Minton Beddoes) that he saw no way to prevent gay marriage from eventually being lawful throughout the US.
So why the flying footware? Well, Carlson had this meme about how the concept of gay marriage has, all of a sudden, become something advocates are demanding “ten minutes ago.” What’s the rush, he asked, why the hurry? I would offer a quick mention of the idea that gay people have imagined gay marriage since long before Carlson was born, but I wouldn’t want to unduly frighten him.
Rauch went out of his way to assure Carlson that there are rational gay marriage advocates like himself who understand the importance of taking things slowly. Letting one or two states serve as the laboratory for the rest of the nation, to try gay marriage so it can be studied and assessed. I assume Rauch is so calm and level headed about it because he firmly believes time and studies will justify his belief that gay marriage will not only be good for gay Americans, but for all Americans, and for the institution of marriage in particular.
I’ll be honest. I’ve never thought we’d be this close to gay marriage in my lifetime. I’ve always felt in my heart it would eventually have to happen, but, like the fall of the Berlin Wall, it seems to be happening faster than anyone would have predicted.
None of that makes Carlson’s question any less ridiculous, however. I mean, I’d rather not be gray (or totally bald) in my wedding photos, if it’s all the same to him.
UPDATE: In editing the title on the Allawi post for clarity, I had another look at the title for this post and it occured to me that I should clarify that the title of this post is meant to imply Carlson is afraid of things moving too quickly. I have no reason whatsoever to believe he has an irrational fear of tight small swimwear.
Do you know why gay marriage is moving so fast for ole Tucker? Because he’s not the one waiting for it. Just like his nasty remarks about Edwards being some kind of pool drain shyster because of fighting for that family, if it was his little girl who was killed (or better yet, if the trial lawyer was a member of his party) then we’d watch Tucker squeal in the other direction. What a hack.
Asking “What’s the hurry with gay marriage?” is a bit like asking “Why do you want to get your own water fountains so bad? I mean, after all, we should have plenty of time to sit back and study the various effects of shared water fountains on a single state level and see if they benefit all Americans. What’s the big hurry?”
F*ckers.
he actually got me to thinking about the idea that DOMA and state laws banning gay marriage are not necessarily as evil as I’ve considered them so far
Really? IMO, such laws are pure evil: they exist for no other person but to ensure that some citizens of the US don’t have the same rights as others. What made you feel that maybe they weren’t evil, or weren’t so evil?
(Second thought: of course, it could be argued that they exist to make paranoid straight people feel comfortable about some states in the union trying out same-sex marriage laws, which I concede is not actually 100% evil: just mostly evil.)
he actually got me to thinking about the idea that DOMA and state laws banning gay marriage are not necessarily as evil as I’ve considered them so far
Really? IMO, such laws are pure evil: they exist for no other person but to ensure that some citizens of the US don’t have the same rights as others. What made you feel that maybe they weren’t evil, or weren’t so evil?
I chose my words very carefully there, Jes.
He got me to thinking about it. I haven’t changed my mind. I simply took his challenge to think beyond my usual opinions. He suceeded in getting me to do that. I don’t think that’s a bad thing.
The “What’s the rush? Let’s take it slowly,” argument is complete BS.
People like Carlson don’t want to go slow. They don’t want to go at all, else why all the uproar about MA? Isn’t one state slow enough?
If he’s serious about going slow then let him tell us what the first steps should be, and under what conditions he would be prepared to support gay marriage nationwide. He won’t, and of course the FMA would explicitly prevent “going slow.”
Carlson is an ass.
There are very few things in the world that I think are 100% pure evil. (There are rather more things in the world that I think are 100% pure good, and that would be a far happier topic for discussion. But so it goes.)
But laws passed for the sole purpose of creating a legal discrimination against a group of people, preventing them from gaining equal rights under law: such as DOMA and the various state anti-gay-marriage laws – these fall into the category of 100% pure evil. Clinton never did a worse thing when he signed DOMA.
I don’t believe that laws such as these are worthy of a second thought, unless to see how best they can be attacked and, ultimately, repealed.
“The “What’s the rush? Let’s take it slowly,” argument is complete BS.
People like Carlson don’t want to go slow. They don’t want to go at all, else why all the uproar about MA? Isn’t one state slow enough?”
I’m all for gay marriage, I’m gay and would love to be married. But illegitametly forcing it through the courts (the ‘faster’ route) is more likely to cause resentment and homophobia than going through the legislative process (the ‘slower’ route). For some reason, people in the US think that the legislative route tends to offer more legitimacy.
And yes I think forcing it through the courts is a perversion of law and precedent and the democratic process. While getting it through the legislatures would not be a perversion of law or precedent or the democratic process. Like it or not, gay marriage is not found in the Constitution of any state or the nation as a whole. If you want to put it there, go through the amendment process. If you don’t want to do that, go through the legislative process.
And isn’t it a little bit weird to be complaining about slowing things down (to your greying years) when a few years (months?) ago you didn’t believe it would happen in your lifetime at all?
And yes I think forcing it through the courts is a perversion of law and precedent and the democratic process.
Why? Seriously, Sebastian, I have not yet read any explanation of why gay marriage shouldn’t be a matter for the courts (which are, after all, traditionally the area in which the rights of minorities are protected against the tyranny of the majority) rather than the legislature.
Sure, I can see why strategically there’s an argument for going via the legislative route. (I think it’s a mistaken strategy: but I acknowledge the argument without particularly wanting to get into a discussion of the relative merit of strategies.)
What I don’t see is the case for it being a perversion of law (the courts that have acknowledged gay marriage have done so as a clear consequence of law, not as a perversion of it) or precedent (the precedent is clearly there in Loving v. Virginia), or the democratic process. The democratic process has never meant, in the US, that the majority should be allowed to tyrannize over the minority: nor that religious fanatics should be allowed to impose their view of marriage on those who do not share their beliefs.
All arguments that I have read which claim that gay marriage obtained via the courts would be “perversion of law and precedent and the democratic process” have come from those fundamentally opposed to gay marriage. I would, therefore, be sincerely interested in the argument against this presented by someone who’s for gay marriage. (And in particular, why you see this as the wrong thing to do when it’s exactly how the right to interracial marriage was obtained.)
Like it or not, gay marriage is not found in the Constitution of any state
That’s begging the question, Sebastian. The MA SJC says that the gay marriage is found in the MA Constitution in the sense that restricting marriage to heterosexuals is unconstitutional. You disagree with that reading, fine. But saying it’s a “perversion of law” because it’s not in any state Constitution is not giving a reason for your claim, it’s restating it.
Still, perhaps I should have been more precise. Those who support FMA and also argue for a “go slow” approach are full of it. While I think you are mistaken, and agree with Jesurgislac, I concede that your view is not in that category.
And isn’t it a little bit weird to be complaining about slowing things down (to your greying years) when a few years (months?) ago you didn’t believe it would happen in your lifetime at all?
I didn’t complain about things slowing down. I complained about Carlson’s question. It was flippant, disrespectful, disengenuous, and poorly thought out.
The bit about my wedding photos was a joke, btw. I’ll look dashingly handsome at any age.
Bernard, you are quite correct that the Supreme Court of MA says that a right to homosexual marriage is found in the state Constitution, but they are lying. Not merely wrong, they are lying. At the time the clause in question was debated, the question of homosexual marriage was specifically worried about, and everyone was assured that the language as written did not lead to homosexual marriage. The clause as written even without such knowledge does not lead to homosexual marriage. The judges know this and do not care. That is why it a perversion of the process. This is not a difference of opinion. It is obvious that they are wrong, but lots of people ignore that because they like the result. I like the result, but I do not like the perversion of the process. Judges are supposed to protect the Constitutional process. They are not given the power to transform the Constitution’s meanings. We bother having an amendment process for that.
Jesurgislac, I am for gay marriage so perhaps I am exactly the person you wanted to talk to. The racial marriage issue is not at all on point. There were actual ratified Constitutional amendments on the issue of government discrimination on the basis of race and there were actual acts of Congress further clarifying.
You write:
You have simplified the Constitutional process so much as to obscure the point. Under our system of government, majorities rule except when they go beyond the power authorized by the Constitution, or except when they attempt to meddle with rights protected by the Constitution. In a healthy balance of powers situation judges act to safeguard CONSTITUTIONAL rights. That isn’t all rights. This isn’t all important rights. That isn’t every right we desire to possess. That is only constitutional rights. If you want to have a right protected for the long-term against majority whim, you are supposed to amend the Constitution. Other rights (say disability rights for instance) get vindicated by legislatures but can be overturned by legislatures. Your so called ‘religious fanatics’ certainly can impose their idea of marriage IF and ONLY IF they can maintain a majority of votes in legislatures. That is exactly how pro-government fanatics impose tax hikes. And I think it is clear that ‘religious fanatics’ cannot do maintain this particular majority in the long run.
But that is no reason to go around the democratic system. If you want it done faster, convince more voters that you are right. Insofar as the government is empowered to make social change, it is supposed to come from the legislatures. Judges are empowered to stop legislatures when they contradict the Constitution. That is a static power, a power to enforce NON-CHANGE. If the Constitution is to be changed it is to be changed by the amendment process. If that were not so, we wouldn’t bother with an amendment process. If judges were empowered to CHANGE the constitution we wouldn’t need amendments.
At the time the clause in question was debated, the question of homosexual marriage was specifically worried about, and everyone was assured that the language as written did not lead to homosexual marriage. The clause as written even without such knowledge does not lead to homosexual marriage. The judges know this and do not care.
I haven’t read that before. Any cites?
the Supreme Court of MA says that a right to homosexual marriage is found in the state Constitution, but they are lying. Not merely wrong, they are lying.
*blinks* Sebastian, you can argue that they may be wrong to interpret Article CVI as meaning that gays may not be deprived of the right to marry, but they’re not lying: it really does say “All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”
I am for gay marriage so perhaps I am exactly the person you wanted to talk to. The racial marriage issue is not at all on point. There were actual ratified Constitutional amendments on the issue of government discrimination on the basis of race and there were actual acts of Congress further clarifying.
So in your view, any form of discrimination not explicitly made illegal under the Constitution is permissable? I find that a dangerous line of argument. Further, it one which in general I believe it is agreed that the writers of the Constitution were against: and the principle of “tyranny of the majority” is certainly one which the Constitution was intended to mitigate, not enforce.
“We have seen, in examining the Federal Constitution, that the efforts of the legislators of the Union were directed against this absolute power [of the majority]. The consequence has been that the Federal government is more independent in its sphere than that of the states. But the Federal government scarcely ever interferes in any but foreign affairs; and the governments of the states in reality direct society in America.” (Tocqueville, Book I, Chapter XV cite)
In any case, I take your point: you are writing as someone in favor of the tyranny of the majority, whereas I (also a supporter of same-sex marriage) am profoundly against the concept that majority rule should have absolute power, especially where majority rule wishes to prevent a minority from access to equal rights or privileges that the majority enjoy. I think, and I think I have good authorities on my side in this, that the power of the judiciary to keep the tyranny of the majority in check is one of the important checks and balances vital to a free country.
Thank you for explaining your POV: I hope I’ve explained mine.
“So in your view, any form of discrimination not explicitly made illegal under the Constitution is permissable?”
The Nineteenth Amendment to the Constitution can be seen as an argument for that position, yes. Who here thinks that, absent said Amendment, women would currently have voting rights in all fifty states? Of those who do, who here would be perfectly comfortable with a situation where the Amendment goes away, leaving only the courts to act as a bulwark against disenfranchisement?
Now, mind you, I’m not as strict a constitutionalist as Sebastian is, or others. Some things have to be inferred – but I think that having them inferred via judicial fiat is just begging for a backlash. It’s easier to bring back an overturned law than a repealed one.
Let us mischaracterize arguments fairly, shall we?
I am for the tyranny of the democratic majority precisely as much as you are for the tyranny of 5 justices of the Supreme Court.
And you seem to have missed the point of my comment entirely if you can write this as a response: “Further, it one which in general I believe it is agreed that the writers of the Constitution were against: and the principle of “tyranny of the majority” is certainly one which the Constitution was intended to mitigate, not enforce.”
Yes the Constitution mitigates against the ‘tyranny of the majority’ IN CERTAIN SPECIFIC INSTANCES.
The United States has a fairly robust democratic underpinning. Judges don’t get to guard against the majority any time 5 judges happen to disagree with that majority.
They guard against the times when the majority goes up against the Constitution.
I am for the tyranny of the democratic majority precisely as much as you are for the tyranny of 5 justices of the Supreme Court.
I was citing Tocqueville, who uses “tyranny of the majority” to define the situation you’re arguing for. (John Stuart Mill also uses the phrase: it is a well-worn cliche to describe your position.)
And you seem to have missed the point of my comment entirely
I don’t think so. You’re arguing that (1) the rights defined in the Constitution are not to be regarded as principles of liberty and justice, but as precisely defined rights which exclude all rights not so defined: and (2) that the majority has the right to decide for a minority what rights and privileges that minority shall enjoy, unless the minority has rights/privileges guaranteed to it by the Constitution.
I disagree.
What’s confusing about the Massachusetts decision to me, is that it does make perfect sense to me that the sexual equality provisions of of that constitution could be read to mean that gay marriage would have to be allowed.
But in reading some of the ruling when it was handed down, it was absolute crap. It was a meaningless pastiche of shallow platitudes that read like a politically correct social studies paper from middle school.
As usual, I’m agreeing with the court’s decisions, but their arguments completely suck. Don’t get me started about the Lawrence sodomy case.
“that the majority has the right to decide for a minority what rights and privileges that minority shall enjoy, unless the minority has rights/privileges guaranteed to it by the Constitution.”
If, when deciding to overrule the choices of the majority, judges are not restriced to enforcing the Constitution by its clauses, what restricts them? Is your position that judges can overrule all democratic choices? If not, which ones can they not overrule?
You quote Tocqueville, and fail to see that he is not disagreeing with me at all: “We have seen, in examining the Federal Constitution, that the efforts of the legislators of the Union were directed against this absolute power [of the majority].”
The Constitution protects against the tyranny of the majority, in some instances by making certain decisions unconstitutional (i.e. not to be touched except by a supermajority needed to amend.) It protects by requiring a bill to pass both houses (a percentage of population house and a per state house) with the signature of the President. It has judges TEMPER the exercise of power of the majority, not REPLACE it.
You are arguing for a simple 5 justice tyranny. And if you are not, you have done nothing to distinguish your position from that of wanting a 5 justice tyranny.
The simplest way of analyzing the question is to answer this:
How do you know when a Supreme Court justice is incorrect? Is your answer something other than “He is in the minority of a vote on the Supreme Court.”
Unfortunately, the Constitution does not include rules as to exactly how it should be interpreted. Since the Supreme Court has arrogated to itself the power to determine constitutionality, it is indeed the case that whatever 5 justices say is constitutional is ipso facto constitutional, no matter what their judicial philosophy, and no matter how many people feel that their decision was “incorrect”.
This is not a “tyranny”, though — the SC has no power to enforce its decisions but relies on the cooperation of the executive branch, and so decisions that are too far out of the mainstream will be circumvented or ignored. Even the most activist courts can only make incremental changes, and only if they enjoy the support of at least a substantial minority of the population.
“Even the most activist courts can only make incremental changes, and only if they enjoy the support of at least a substantial minority of the population.”
And you think it is good that an activist court can make changes with only the support of a minority?
“the SC has no power to enforce its decisions but relies on the cooperation of the executive branch, and so decisions that are too far out of the mainstream will be circumvented or ignored.”
Sure, and that would represent a complete breakdown of Constitutional order. Including for instance all of the 1st amendment protections. Why again are we purposely traveling in that direction?
If, when deciding to overrule the choices of the majority, judges are not restriced to enforcing the Constitution by its clauses, what restricts them? Is your position that judges can overrule all democratic choices? If not, which ones can they not overrule?
I would hate to have to formulate a general position on this in two minutes on a blog, Sebastian, so please take this as a statement of my position on civil rights, and same-sex marriage in particular.
Where the majority rule has decided to take rights/privileges away from a minority, or refuse them access to rights/privileges that the majority enjoy, I think that judges have a right, and indeed an obligation, to overrule the majority decision.
In this case, it’s simple. Allowing same-sex couples to get married does not infringe on anyone else’s right to get married. It merely extends a legal right that the heterosexual majority enjoy to a minority group: a right that, because of considerable bigotry, many in the majority don’t want the minority to have. Therefore, yes: in principle, where civil rights are concerned, when the majority says that a minority shan’t have certain civil rights, the courts should have the right to override the majority.
You are arguing for a simple 5 justice tyranny. And if you are not, you have done nothing to distinguish your position from that of wanting a 5 justice tyranny.
Actually, no, I’m not. The judges don’t have the right to overrule the Constitution: only to interpret it in the line of their legal knowledge. If the Constitutional amendment against gay marriage had passed, they would have been unable to rule that gay marriage was a legal civil right. Checks and balances. Generally considered a good thing.
But the MA court is not vindicating a traditional civil right. It is creating a new one. It is creating one that goes against the specific understanding of the words as passed at the time. It interprets those words in a completely new way, and without the backing of legislatature, or the people of the state, or the administration. And then you pretend shock when people think that the court is acting in an illegitamte fashion?
“The judges don’t have the right to overrule the Constitution: only to interpret it in the line of their legal knowledge. If the Constitutional amendment against gay marriage had passed, they would have been unable to rule that gay marriage was a legal civil right. Checks and balances.”
What garbage. The amendment process is not how you are supposed to restore an old legal order, it is how you create the new rules. The amendment process is not intended to be a check on judges changing the Constitution, it is intended to be the method for change in the Constitution.
You are completely destroying the idea of checks and balances with your formulation. Checks and balances are a good thing. The Constitution is a check on legislatures. Judges enforce that check. But the Constitution is to be changed by amendment.
“The judges don’t have the right to overrule the Constitution: only to interpret it in the line of their legal knowledge. If the Constitutional amendment against gay marriage had passed, they would have been unable to rule that gay marriage was a legal civil right.”
“The judges don’t have the right to overrule the Constitution: only to interpret it in the line of their legal knowledge. If the Constitutional amendment against gay marriage had passed, they would have been unable to rule that gay marriage was a legal civil right.”
And yet you refuse to put any limits on how they ‘interpret’. (Actually I suspect that you would put all sorts of limits on how they interpret so long as those limits always help your political agenda which is why you won’t talk about the limits except in the context of gay marriage).
And what is to stop the judges from reinterpreting the phrase “a man and a woman” so to allow gay marriage? Under your system? Absolutely nothing.
Sebastian, according to an article by Joseph Ellis in the NY Times this February,
whoops.
Katherine, as you certainly know, the article that you quote refutes nothing. Without getting into inflammatory comparisons government acts all of the time to restrict people’s right of “seeking and obtaining their safety and happiness”. And it’s difficult to claim that no new rights are being created since the acts being discussed were felonies at the time of the adoption of the federal Constitution, the Bill of Rights, and the first Massachusetts Constitution. Whether they should be rights is an altogether different discussion.
And, as you yourself have said, the matter at hand is what level of scrutiny applies. Didn’t the Massachusetts court hold that strict scrutiy applied? Intermediate scrutiny would seem to be the appropriate level.
Actually, they held rational basis scrutiny to be the appropriate level. I think it should be intermediate, and I think it fails by a mile, but no one seems willing to say this.
The right is the right to equality under the law. It is now applied to gay people as regards marriage.
I don’t John Adams thought the law would one day make gay marriage legal, but he chose to write of equality and the pursuit of happiness for all persons, not equality and the pursuit of happiness for white heterosexual males. We are bound by his words, not everything that was in his head and not even the statutes on the books at the time.
If “equal” itself had a different meaning then it would be one thing, but it didn’t.
in constitutional jargon, I’m talking about the difference between “original meaning” and “original intent”, but I am very bad at explaining this difference. How’s this explanation?
I don’t agree with the author on affirmative action, but I do agree with him as to this, about why this distinction is important:
Randy Barnett, of Volokh conspiracy fame, has also written a fair bit on the difference between original meaning and original intent….
I’m not an originalist at all, not least because I don’t think “original meaning” is always possible to determine and I think contemporary dictionary definitions are a supremely lousy method of determining it. But when it is possible to determine, it cannot be ignored and can be overridden only in extreme cases. (e.g. the application of the Equal Protection clause to the federal government.)
But the MA court is not vindicating a traditional civil right. It is creating a new one.
Equal right of access to marriage is a very traditional civil right: the MA court is not creating a new concept of marriage, simply granting same-sex couples access to the same old traditional concept of marriage. (I will grant you that regarding gay people as a group with equal rights to heterosexuals is a new thing under the law, but surely you yourself have no objection to being regarded as a person worthy of equal rights to your heterosexual neighbours?)
For the rest, I think Katherine refuted your arguments nicely.
“So does the word “people” not include gay people, the word “equal” not mean what we think it means”, or is marriage not part of the “the right of enjoying and defending their lives and liberties” or “that of seeking and obtaining their safety and happiness”? ”
No we aren’t worried about the definition of any of those words. We are concerned with the definition of the word ‘marriage’. It has a clear statutory meaning. If you want to change it, you can change the statutes. It has nothing to do with the equality before the law. I, as a homosexual man can equally marry any woman who would have me, just like a heterosexual man could. No difference in marriage rights between homosexual and heterosexual. The definitional choke point is ‘marriage’ not ‘person’ or ‘equal’. And please, all of you, remember I am pro-gay-marriage. I just wish we could bother with democracy instead of having rules dictated from on high.
This doesn’t turn on an original intent/original meaning distinction because under either theory the language wouldn’t lead to gay marriages. Original meaning interpretations would almost never lead to overturning a modern statute because if the contemperary meaning of words had really changed, the law wouldn’t be in conflict with what the judges wanted to force it to be.
Basically your Constitutional theory always gets whatever you want. “I get what I want” isn’t a very pretty rule, especially when other people may be in charge. If you can’t identify a constitutional analysis process that could give you results you would politically disagree with, you aren’t really engaging in constitutional analysis. You are using pseudo-analysis as a window dressing to hide your overt political views.
Would you be happy with a changed definition of ‘torture’ that only kicked in if the victim actually died? I think not. But your view is a pure-power view. The court is not restrained by what words actually meant, they decide what they wish they meant.
I, as a homosexual man can equally marry any woman who would have me, just like a heterosexual man could. No difference in marriage rights between homosexual and heterosexual. The definitional choke point is ‘marriage’ not ‘person’ or ‘equal’. And please, all of you, remember I am pro-gay-marriage.
By what definition are you pro-gay-marriage?
You don’t sound as if you feel you have a right to get married: I’m just saying. Sorry.
FWIW, I have no wish to be married to a man. Ever. A law which pronounced me free to marry anyone I wanted, so long as it was someone I felt no sexual attraction to and was not capable of loving as a spouse, would seem to me to be the law that makes a mockery of marriage.
Marriage is not intended, by any reasonable definition, to be a sexless partnership between two people who can, at best, only care about each other as friends. Yet this appears to be a definition of marriage that you support.
I support a law that makes Edward free to marry his partner, and you free to marry yours, because I believe that the essence of marriage is a sexual partnership, not a sexless one.
Would you be happy with a changed definition of ‘torture’ that only kicked in if the victim actually died? I think not.
Sebastian, I really am trying to argue the civil rights question, specifically focussing on same-sex marriage, and trying to avoid extraneous issues, even when I think they would support my argument. I’d prefer it if you did the same.
“I, as a homosexual man can equally marry any woman who would have me, just like a heterosexual man could. No difference in marriage rights between homosexual and heterosexual.”
For the 100th time: the law in Loving v. Virginia left it perfectly legal for whites and blacks alike to marry people of their own race.
“Original meaning interpretations would almost never lead to overturning a modern statute because if the contemperary meaning of words had really changed, the law wouldn’t be in conflict with what the judges wanted to force it to be.”
Actually, people can hold an abstract principle and fail to live up for it. Thomas Jefferson owned slaves. The 14th amendment was interpreted to allow legal segregation for the better part of a century. The 14th amendment was interpreted to allow laws against miscegenation until the 1960s. It was also interpreted to allow the denial of women’s voting rights for 40-odd years, but I guess according to your theory that was the correct analysis.
It’s not only the 14th Amendment; it’s also the First. It was an open question for a century whether the First Amendment forbade criminal penalties for political speech, or only “prior restraints” on publication. Truth wasn’t a defense to libel suits for several decades, and not a complete defense until the 1960s. Judges upheld laws against blasphemy. There was no protection at all for “obscenity”–which used to include a lot more than it does today–for a very long time.
As for my theory always getting me what I want, I think Roe v. Wade is probably wrongly decided; capital punishment is not cruel and unusual
(though our current system violates the 14th and 6th amendments); the first amendment forecloses some campaign finance reforms that we probably need to make our government work decently; I would like Congress to have to declare war but courts are right not to touch the issue; my state would be constitutionally allowed to call off the popular election to choose presidential electors in the event of a terrorist attack, even though I think this is totally illegitimate and I would trust my state legislature as far as I can throw them; our immigration and naturalization laws are often unconscionable but only a few of them are unconstitutional….shall I go on?
If I am a law clerk, I will have to write decisions whose effects I hate to do my job decently. This would not be such a case. Based on the terms of the equal protection clause and the last 60-odd years of precedent, sexual orientation should be a suspect class and legal distinction based on sexual orientation should be subject to intermediate scrutiny. They fail with flying colors. It’s not even a hard decision.
One more thing: the court was in fact deciding what the MA equal protection clause meant, not what the word “marriage” meant. You think they got it wrong (either because you think discrimination on the basis of sexual orientation is not unconstitutional, or because you think that the equal protection clause cannot apply to facially neutral laws even if their purpose and effect is clearly discriminatory**, or both; I’m not sure), but that is what they were deciding. They never claimed that the marriage statute did not restrict marriage to opposite sex partners; they said that that restriction violated the state Constitution. So your torture analogy is completely off-point, unless someone is claiming that it is unconstitutional to define torture as requiring deliberate infliction of pain but not death. As far as I know even Bybee and Yoo don’t take that position.
And in general, you would get further in these arguments if you did not display such a crushing lack of respect for the other side.
*if so, do you think it would be constitutional to deny gay people the right to vote?
**if so, was Loving wrongly decided?
“By what definition are you pro-gay-marriage?”
How dare you. I am pro-gay marriage because I want gay marriage to be a legal reality. I just want to go through real legal channels instead attacking the Constitutional order to do so. You would think that someone who claimed to be anti-Saddam but wanted the U.S. to go through the UN might understand that distinction. But clearly you have trouble applying concepts out of the areas which suit you.
“Sebastian, I really am trying to argue the civil rights question, specifically focussing on same-sex marriage, and trying to avoid extraneous issues, even when I think they would support my argument. I’d prefer it if you did the same.”
I know you are trying to limit the question to same-sex marriage, but I am attempting to deal with the question of how democracies make decisions using same-sex marriage pronouncements from courts as a modern illustration. So I don’t care what you prefer. You want to limit the topic, because you know full well that your theory on interpretation spins out of control if you look at it beyond the cases you personally like.
Katherine, Loving has very little to do with this case. The history of Anti-Miscegenation Laws is roughly as follows. There are marriage laws. These marriage laws allow marriage between men and women. Black and white couples got married. Racist people did not like it. They passed laws which contravened the traditional understanding of marriage and barred certain marriageson the basis of race. Since laws which make racial distinctions fall under strict scrutiny (unless they are affirmative action laws) the states had to show a compelling state interest in the laws. They obviously could not. If you want to persue the analogy further, the dissent in Goodridge (I provide a cite below) offers an excellent discussion of the distinction.
By the way, no one thus far has claimed that the US Constitution requires gay marriage in every state. Do you think it does?
In Goodridge, the MA underlying case, the judges pay lip service to normal interpretation rules in their dealings with the term ‘marriage’:
Full case cite
The court does not find that same sex marriage is a fundamental right because if they had, they would have used the strict scrutiny test. They then find that it doesn’t pass the ‘rational basis’ test which they improperly apply. In the ‘rational basis’ test the court does not inquire about into factual disputes. They merely inquire into the idea the legislature had some reason to believe what they believe. It is an incredibly easy test to pass, because the courts do not review any factual disputes underlying legislative justifications for the law. “”[A] reviewing court will presume a statute’s validity, and make all rational inferences in favor of it…. The Legislature is not required to justify its classifications, nor provide a record or finding in support of them.” In rational basis tests the legislative goals are accepted on their face. When the court made rulings on the factual disputes (especially on the stabalizing social structure argument which it rejects on a factual basis where it transforms the argument into purely a question of parentage) it is not actually using a rational basis test, it is using some other test while pretending that it is still in the rational basis realm. And when courts do that, you know that they are messing with the Constitutional structure. And you know that they know it.
“our immigration and naturalization laws are often unconscionable but only a few of them are unconstitutional….shall I go on?”
Yes. You should go on because you are almost there. WHY you think they are not unconstitutional?
Why should the court not rule as it wills?
For instance immigration: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
If the court can rule that equal protection has changed its meaning to mandate gay marriages (unless of course you argue that it has mandated gay marriage since 1868), why can it not rule that ‘naturalized’ should now, in accordance with evolving standards of decency (a phrase I know you will recognize) mean anyone who should find herself in the boundaries of the United States? Why is it that a phrase that clearly did not mandate gay marriage in 1868 be changed to suit the moral judgments of the court, while the phrase “born or naturalized” cannot?
Why ought the Court not rule that “cruel and unusual” should bar the death penalty? If “equal protection” can gain new meanings by judicial fiat, against the express wishes of the legislature, why should the same not be true of “cruel and unusual”
Why should Courts not interpret the 1st amendment as allowing campaign finance reform to bar speech if it would be for the greater good?
And before you ask, I don’t mind Courts using the common-law extension of law concept. If the legislature made a rule protecting the free use of color schemes in advertising and humans were genetically engineered to see ultraviolet light, the court could interpret ‘color’ as applying to ultraviolet light frequencies perceivable by some engineered humans. But it couldn’t apply it to sound because the the word ‘color’ cannot be extended to include ‘sound’. And furthermore ‘sound’ as a legal concept already existed when the ‘color’ rules were made. Homosexual relations are not new. They haven’t recently been invented. They existed in 1868. They weren’t protected by the 14th amendment when it was ratified. In the MA
And please don’t think that I believe homosexual rights aren’t important. I do. I’m gay. They are. But that doesn’t make all of them constitutionally protected.
The concept of marriage has not changed, yet. If anyone would bother going through the legislatures, it would do so democratically in a matter of a very few years. There is no reason to undermine the balance between courts and legislatures to get gay-marriage. There is no reason to provide the huge Christian population of the US yet another Roe v. Wade rallying cry to prove that the court system doesn’t care about the democratic system.
I agree with this statement of the dissent in the MA case:
Edward, you expressed interest in the idea that the constitutional language of the ERA in question had been reported at the time as not applying to homosexual marriage. In the above cited case: