by publius
I didn’t write about the Iowa gay marriage decision – largely because my tentative post seemed inappropriate. I was happy for people and didn’t want to rain on their parade.
But the decision did pose a dilemma for me. On the one hand, I’ve generally been skeptical of using the judiciary to bring about this much-needed change. On the other hand, my grand theories seemed to pale in comparison to the moving pictures of tear-streaked smiling faces. It just felt wrong to disagree.
So after much thought, I’ve come around to the idea of using courts to legalize gay marriage. Admittedly, the idea runs against my general jurisprudence. But at some point, if my theories justify cruel and dehumanizing discrimination, well… maybe it’s time for new theories.
To step back, I think the judicial debates about gay marriage have a lot of parallels with the debates over race and the Warren Court. I’m summarizing (briefly) a ton of literature, so bear with me. But the upshot is that, at some point, neutral abstract principles can lose sight of reality.
The legal debate about race goes something like this: In the 1950s and 60s, federal courts became much more aggressive in striking down racial discrimination. Brown v. Board is the most famous example of this development.
The problem, though, is that it was very difficult to justify Brown (and some of its progeny) under existing precedent and methodologies. Critics argued (correctly, I think) that the courts often valued real-world consequences over “neutral principles.”
The split was part of a larger fight between the so-called “Legal Process” camp and its pro-Warren Court critics. (For a good background, see Barry Friedman, Neutral Principles: A Retrospective, 50 Vand. L. Rev. 503, on whom I’m relying for some of this post).
As Friedman explains, the “Process” camp believed strongly in so-called neutral principles to help assure judicial legitimacy. Its critics – i.e., the Warren Court defenders – were more concerned with “the substantive correctness of decisions.”
Over the past 20 years, Legal Process has enjoyed a revival with the rise of legal conservatism. I’d even argue that it’s the dominant paradigm or narrative at the moment about how interpretation should work. (It's not necessarily the best description of how courts work, but of how people think the courts should work).
And so from today’s perspective, there’s something vaguely icky-sounding about the Warren Court’s result-oriented jurisprudence. Indeed, Bush v. Gore is a strong warning to those who seek “substantive correctness” over neutral principles.
And while I generally agree with those sentiments in almost all contexts, race was different. It was a unique problem, and it demanded a more unique response. Most obviously, the “legal process” surrounding race was itself flawed given that blacks were systematically excluded from the ballot boxes.
But more generally, the Warren Court defenders saw all too clearly the realities of violent state-sanctioned discrimination. And they chose not to validate it – that is, they chose not to facilitate this regime by blessing it with constitutional approval. Neutral theories or no – people were getting lynched; people couldn’t vote. In short, they chose not to be on the wrong side of history.
And for all the critiques of the Warren Court, it’s important to see the world as they saw it – through the lens of Jim Crow and George Wallace. The tragic reality of American racial discrimination overwhelmed the abstract logic of the Process camp. Once again, if your theories justify poll taxes, disenfranchisement, and anti-miscegenation laws, then maybe you need new theories.
The bottom line, then, is that the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology. But the injustice of American racial discrimination demanded a more aggressive response. The courts acted – and scholars later supplied these principles (things like anti-subordination, which called for scrutiny of laws discriminating against racial minorities).
And that brings us to gay marriage. The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That's the million dollar question.
And I say yes.
That’s the reason I’m now comfortable with using courts. I’m not going to be on the wrong side of history on this. I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision.
Indeed, with each passing year, the denial of this most basic of human dignities seems more inexcusable. As a straight person, it’s obviously hard to internalize the depths of these injustices. But when you see the photographs of couples celebrating following the court’s announcement, it really hits you right across the sternum. It’s not just the joy in these pictures that gets to you, it’s the knowledge of what they went through to get there. Of what past generations went through to get there.
And it's not just the joy — it's the practical benefits. Divorcees in Iowa no longer have to fear being permanently barred from their children (take a second to reflect on that). Partners no longer have to fear losing benefits, or being denied in hospital rooms. And on and on.
At this point, it’s pretty easy to object and accuse me of abandoning the very idea of ex ante principles. For instance, what if I think that felons in possession of guns are discriminated against? What if they cry after a favorable decision? Should that alter my Second Amendment jurisprudence? The critics’ point would be that sentimentality shouldn’t drive one’s views of constitutional interpretation – the law is supposed to be coldly neutral after all.
And to that, I respond: Yes, I mostly agree with you. But anti-gay discrimination is different. It’s simply one of those issues that can no longer be tolerated – much like racial discrimination in the past. And if today’s neutral principles and methodologies don’t recognize that, then they’re wrong – and we need new ones.
I don’t think of it so much as abandoning neutral principles – it’s more like forcing us to reconceptualize them. Societies evolve. We evolved from our past racial views – and interpreted the Constitution accordingly. Last I checked, those new interpretations didn’t destroy the country – just the opposite, actually.
In the same way, I think the Republic will survive if we choose to end this discrimination as well.
Legal decisions, like most of law, is bs. and there isn’t any point in thinking of ‘good faith’ for people who you can’t live peacefully with, like homophobes or managers. I wouldn’t trust my own principals, let alone someone else’s. Process is for quislings to sleep well at night.
I profoundly disagree with Yoyo’s comment.
Publius, I love this post. It’s great.
“Most obviously, the “legal process” surrounding race was itself flawed given that blacks were systematically excluded from the ballot boxes.”
As well, and critically from a process standpoint, “existing precedent” in the case of the 14th amendment was a load of BS, specifically intended to render the amendment toothless.
The point being that, in the case of racial discrimination, the court didn’t have to engage in bad faith interpretation, it didn’t have to twist the words of the law, claim they meant something it’s authors never meant, and would have repudiated if it had been suggested. It had to undo the effects of it’s own prior bad faith interpretation. (And only did so grudgingly, which is why we’ve got this incoherent ‘partial incorporation’.)
It’s never too late to correct a mistake. And that’s what the Court was doing in the case of Brown.
The case of same sex marriage is nothing of the sort, and it’s nothing of the sort, no matter how strongly you feel about it.
Yes, you have abandoned neutral principles. Don’t lie to yourself about it, don’t start spewing bs rationalizations. This is nothing but “the end justifies the means”.
Maybe it does, but that’s what it is. Don’t blind yourself to that.
Why is treating gays differently from straights not a mistake?
“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
It also forbids straights as well as gays from marrying people of the same sex. This might not be an equality you value, but it’s a kind of equality none the less, and a kind that legal process is based on.
When the law prohibits both people who want to do something, and people who don’t want to do it, from doing that something, that’s not strictly speaking “discrimination”, for all that the impact is felt differently by the two groups.
This is not an argument, by the way, that the law ought to prohibit same sex marriage. For polygamy, or marrying your sister… But doing so is not ‘discrimination’ in any meaningful legal sense.
Brett, you quote Anatole France as if he were defending the state of affairs he describes. If you think this, you are really missing the point of the quote and if you know that he doesn’t mean this, you are just engaged in legalistic pedantry, like the argument that it’s not discrimination, because gay men can marry straight women and lesbians can marry men so they aren’t being discriminated against.
Brett’s conclusionary comments are tiresome. Blacks and whites both could not marry each other too. The focus should be on the reason why, legit or not.
Likewise, as MA practice and Justice Harlan supporting social discrimination (including miscegenation and school segregation in public schools, as compared to private universities) showed, it was not some great legal perversion in the 19th Century to support school segregation.
Times changed by 1954, and Robert Jackson had a good unpublished memorandum discussing the point.
Liberal Japonicus: Why is treating gays differently from straights not a mistake?
If you’re a homophobic bigot or a believer in sexless, unhappy marriage (the groups tend to overlap) it’s not a mistake.
If you’re outside that miserable group, it’s fairly clear what kind of mistake is being made.
Legally, marriage is a contract for sharing property and personal responsibilities. Banning gay marriage means that we are prohibiting specific people from making a specific type of contract, based only on hereditary factors.
So how is this different from discrimination based on other hereditary factors, like skin colors?
I think von said something rather similar to I’ve generally been skeptical of using the judiciary to bring about this much-needed change in his last post about gay marriage, and got clobbered for his trouble.
Which, WTF?
“Well, the text of the law *is* important, but [X] is different.”
I can’t believe that in a post where you mention Bush v. Gore that you really want to go down that road. I’m glad your confident that it’s only going to be your guys who hold the courts from here on out.
Well Andrew/Brett – that’s the problem. The objection is that once you allow this, you’ve basically accepted that courts are only about imposing their political preferences.
The post was getting too long as it was, but I’m confident there is a principle that reaches this without throwing the operation aside. The idea is that we do apply scrutiny to laws that are based on cruel and irrational discrimination against a minority. In short, I’m lumping sexual orientation in with race and gender. That what separates gay discrimination from discrimination against other “minorities” such as felons in possession.
And Brett – while I’m far far from 100% I’m right (and was hoping for critical comments, frankly), I think you’re stretching how much the original constitutional text gets you Brown. It’s hard to see any methodology (particularly originalism) that gets you there
Race was different — and courts did what was right, and the principles ultimately vindicated them. I think sexual orientation also falls into this category.
But I’d be lying if I said I feel 100% confidet that I’m correct
@ Andrew R: Publius’s opinions don’t mean anything thing to right-wing judges, and if liberal appointees maintain strict devotion to process, right-wing judges will be no less likely to rule in Bush v. Gore-like ways. There’s really no connection.
There is, for better or worse (better, IMHO), one significant difference between the gay marriage question and the legal issues over race half a century ago. Today, there is precedent for the court to intervene, even for those who dislike on principal have the court plunge into new territory.
That precedent is, obviously, the rulings overturning the anti-miscegenation laws. It is not really possible to come up with a legal argument why one set of rulings is acceptable and the other is beyond the pale. You can argue theology, of course. But if you are going to argue the law, you can’t have it both ways. And the law is what is at issue here.
(All that said, I think that politically it is better to get the laws changed via legislation than via the courts. We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades. If you can get, indeed are in the process of getting, to your goal via persuasion, is it really smart to skip that step?)
So after much thought, I’ve come around to the idea of using courts to legalize gay marriage.
Good for you. I’ve never seen a criticism of “judicial activism” itself that didn’t sound like reactionary lizard-brain sour grapes. If the result was good and if it was reached legitimately, then the fact that it was accomplished without a minority having to beg hat in hand to be treated like equals is neutral if not actually positive.
“I’ve never seen a criticism of “judicial activism” itself that didn’t sound like reactionary lizard-brain sour grapes.”
Doubtless, but is that a commentary on the criticism, or your ears?
Okay, fair enough. And I can actually see how one can argue that the fourteenth amendment is based on a larger principle of equity even though sexual orientation isn’t mentioned in the text of the amendment itself.
I’m just uncomfortable with the notion of shooting for a particular outcome by means of the judiciary. I especially dislike the “times have changed since they wrote the Constitution” argument, because that can go into all kinds of places that we don’t want–“When they wrote the Bill of Rights, there weren’t al Qaeda loose nukes floating around after the collapse of Pakistan,” for example.
Using the courts to decide this is not dissimilar to using the courts to decide what is discrimination against handicapped people wrt ADA. Both are happening, and it’s probably a good thing
The difference between a results-oriented decision like Brown v. Board of Education and one like Bush v. Gore is simply this:
In Brown, the Court was looking for justice regardless of what the law said.
In Bush, the Court was looking to install a particular candidate regardless of what the facts said.
Doubtless, but is that a commentary on the criticism, or your ears?
Both, I assume. Do you have a point?
wj:
I wonder about that too. I say this having spent 12 hours at the committee hearing on Maine’s proposed same-sex marriage bill last Weds., where 3000 people filled the Augusta Civic Center and dozens testified (3 minutes per person, alternating 1/2 hours for the sides).
On the one hand, I came away astonished and pleased to be reminded how much progress we’ve made in just the last (let’s say) 10 years. Ten years ago you could never have gotten 1500-2000 supporters to come out (no pun intended 😉 in public to make that kind of a statement.
On the other hand, listening to the people who spoke in opposition to the bill was as depressing as ever. Lots of God-talk — it amazes me how many different shades of opinion God seems to have on this stuff….
But one thing I hope is that this issue is different from abortion. I can very much understand why a sincerely held opinion that abortion is wrong is not likely to change. People do in fact have differing fundamental values, and this is one of the places where I think we are going to have a hard time ever reconciling the differences.
But a lot of the opposition to gay marriage is founded in simple fear and ignorance of the fact that gay people are pretty much just folks. As gay people feel safer being out in the open, the fear will gradually be defused, as is already happening. There will continue to be a hard core, just as there are still hard core racists. But I don’t think that this issue necessarily has the potential for long-term divisiveness that abortion has had.
Yes, the same rabble-rousers will keep trying, and it’s all the same people who keep using abortion as a dividing mechanism. But I hope this one will simply not have the staying power. It already seems that there’s a big generational component to opinions about same-sex marriage, and that tends to point in (what I consider to be) the right direction as well.
Back to the beginning: I do understand that there’s a political issue here, and that it’s a delicate balancing act between that and the fact that minorities shouldn’t have to wait for the majority to catch on (or what is the Bill of Rights for in the first place?)….
in the case of racial discrimination, the court didn’t have to engage in bad faith interpretation, it didn’t have to twist the words of the law, claim they meant something it’s[sic] authors never meant, and would have repudiated if it had been suggested.
Ladies, this is your warning shot. The 14th Amendment only applies to the categories named in it. So if you’ve been counting on it to address any discrimination you may experience due to your gender, you’re barking up the wrong tree. Pass a law, or suffer in silence, because the white men who wrote it never meant to include you in the category ‘person’.
Is that too reductive?
JanieM: But one thing I hope is that this issue is different from abortion. I can very much understand why a sincerely held opinion that abortion is wrong is not likely to change. People do in fact have differing fundamental values, and this is one of the places where I think we are going to have a hard time ever reconciling the differences.
A person can sincerely believe that abortion is wrong, but nonetheless see that making abortion illegal creates and enforces an even worse wrong. A person can sincerely believe that abortion is wrong and therefore want to focus all their efforts on ensuring that the least possible number of abortions happen.
But the pro-life movement is no more interested in preventing abortions than the anti-gay-rights movement is interested in protecting marriage: the pro-life movement is primarily interested in removing basic human rights from women, and the anti-gay-rights movement is primarily interested in removing basic human rights from lesbian and gay people. The two groups, naturally, overlap considerably: and the interest both groups display in having more white babies born betrays that both have strong links back to the Christian religious right movement to remove basic human rights from black people.
After 30 to 40 years of legal abortion, most sane people agree that, regardless of your personal views on abortion, it’s better for everyone if a woman who needs* an abortion can get one performed safely and legally by a qualified medical practicioner. That was what Roe vs Wade accomplished in the US. The “poison” arises from the political and financial strength of the religious right wing in the US, not because of any widespread principled disagreement about abortion.
*One may, and people do, have disagreements about what constitutes “need” and who gets to decide, but I doubt if even Sebastian would argue that if a woman needs an abortion, she ought to have to go to a backstreet abortionist and have a knitting-needle pushed into her uterus.
This is pure argument by assertion. I defy you to identify a substantial or meaningful way in which the history of prejudiced legal rulings, history of prejudiced laws, or tradition-based justifications of said prejudice is different between racial and sexual discrimination. And by substantial or meaningful, I mean something other than stuff like “race isn’t gender isn’t orientation”, or “homosexuality isn’t in the 14th Amendment”. Do your homework.
“The bottom line, then, is that the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology.”
The road to Brown included two areas: (1) an expansion of due process to protect certain minorities and (2) in particular, cases targeting racial discrimination in higher education, including law schools. These went back to the Hughes Court in the 1930s. I might add (3) an increase in the use of the government, all branches, to protect individual rights in a certain direction.
In fact, there were seeds of this already in the 1910s, including a decision against a law promoting residential discrimination and grandfather clauses. If things changed, they didn’t suddenly change in the days of Warren.
BTW, as here, this was a long term process, one that mixed court review with political and social change, each done with some care to restrain things. So, we had let’s say Vermont, where a state court took a middle approach. A decade passes. The sky doesn’t fall and it is determined that the half-way measure is not true equality. The legislature passes a marriage bill.
“And that brings us to gay marriage. The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That’s the million dollar question.
And I say yes.
That’s the reason I’m now comfortable with using courts. I’m not going to be on the wrong side of history on this. I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision.”
I’m gay. I want gay marriage. I don’t agree with this at all.
“I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision.”
This statement can’t be true. You DO have so much faith in your theoretical principles that you are willing to throw out the political process to get the result you desire. It is just that the theoretical principles you trust enough are those of your sense of justice.
And that is great for you, so long as your conception of justice is the one that is getting validated by the courts.
I would have thought that progressives might have had a recent enough brush with the fear of courts they don’t agree with to want to keep in mind the idea that such wouldn’t be the case.
Now it may very well be that some of the states have Constitutions where the decisions make sense in jurisprudence. I don’t know the constitutions of all 50 states deeply enough to be sure. But reading some of the decisions and their hemming and hawing makes me fairly skeptical of that.
Further, it isn’t clear that we HAVE to break the process in order to get gay marriage. It looks to me like the democratic side of the process is winding its way that direction too.
It seems to me that the reason why minority interest protections stand in a republic is because the majority believes that system of checks and balances is tied to something else that they believe in. If that has no instrumental value in maintaining society, letting the judiciary pretty much do what it wants shouldn’t be a problem. I’m not convinced that the buy-in of the majority into the legitmacy of the system really has no instrumental value.
We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades.
Did we? Why do you say that? These guys are more familiar with the topic than me and devote a lot more energy to it, but I don’t see any reason to believe in backlashes against judicial decisions in general. People opposed to same-sex marriage, abortion, and interracial marriage were opposed to them before the relevant rulings and have continued to be for years after. To the extent that opposition has faded, it’s often due to being exposed to the controversial thing and seeing that it’s not that bad. In Vermont, for example, civil unions were imposed by a Supreme Court ruling. Vermonters hated that judicial activism so much that when it came time to vote on gay marriage itself 10 years later, it passed by veto-proof margins. I can’t imagine same-sex marriage coming to Vermont any sooner without the Supreme Court ruling.
All that said, I think that politically it is better to get the laws changed via legislation than via the courts. We saw with the abortion question how saving a few years by using the courts can poison the political landscape for decades. If you can get, indeed are in the process of getting, to your goal via persuasion, is it really smart to skip that step?
Can you present any evidence at all that judicial decisions on gay marriage lead to significant backlash effects? If you cannot, then why should we prefer legislation to court action? You can always say that you are making some progress in convincing people, so doesn’t your argument reduce to an argument for never seeking redress from the courts?
I agree that convincing voters is important, but voters also rely on the opinions of judges. Many voters might have strong feelings about whether they think their gay people should be able to get married in their church, but on questions of civil marriage they may be far more willing to delegate to high court judges. If we insist that gay folk avoid court challenges and seek change exclusively through the legislature, then we deny both the legislature and the voters the benefits of high court judgments. In some cases, the legislature specifically wanted the courts to decide.
“It also forbids straights as well as gays from marrying people of the same sex. This might not be an equality you value, but it’s a kind of equality none the less, and a kind that legal process is based on.”
Segregation forbade “white” people as well as “black” people from mixing. The law said they were “separate, but equal.” This might not be an equality you value, but it’s a kind of equality nonetheless, and a kind that legal process is based on.
When the law prohibits both [“white”] people who want to do something, and [“black”] people who don’t want to do it, from doing that something, that’s not strictly speaking “discrimination”, for all that the impact is felt differently by the two groups.
Anything incorrect about this, Brett?
My simplistic take on discrimination is this:
If you disallow blacks access to something that you allow whites access to, you are discriminating against blacks.
If you disallow whites access to something that you allow blacks access to, you are discriminating against whites.
These two things do not cancel each other out. They are simply two forms of discrimination, not additive opposites.
If Mary can marry Bill, but I, a man, cannot, simply because I’m a man, gay or straight, that is sexual discrimination. Same goes for Mary not being able to marry Jane, whom I can marry.
I can’t totally agree with publius that the Brown, for example, was a wild venture outside the terms of the 14th Amendment. It offended post-New Deal legal process types who hated Lochner and loved judicial deference, but that’s not quite the same thing.
The 14th Amendment does seem to require equal protection. Obviously, the original reason for it was Reconstruction and abolition, but the courts recognized that this had to be applied at a certain level of generality. For instance, prohibiting Asians from running certain businesses violates the same principle.
Of course, the argument Gary sets out at 12:28 pm, that segregation was consistent with equality, was considered very persuasive for a long time. But in principle, that’s a matter of social fact, not of legal interpretation. Brown said de jure segregation in the context of schools wasn’t consistent in practice with equality, and we all agree with that now.
I am going to ‘concur in the result but dissent from the reasoning’ — and my apologies for breaking this into parts, but dear, blessed Typepad seems to have a length limitation that I frequently exceed.
First, re Brown v Board you are doing precisely what the segregationist opponents of this were doing — and it is a sad thing that this has become ‘conventional legal wisdom’ — treating it as a form of ‘judicial legislation’ de novo. But they did not, suddenly, out of nowhere, decide that school segregation was unConstitutional.
There had been a long series of decisions leading up to Brown. Not just school cases — which I will discuss in a moment — but the ‘white Primary Cases’; the series of ‘transportation desegregation’ cases, Mitchell v. US, Morgan v. Virginia, and finally Henderson v. US.
In education you have Gaines v. Canada (which, ironically, may make the strongest argument against marriage inequality when it states “a privlege has been created for white law student which is denied to Negroes” and that paying a student’s expenses at an
Unsegregated school in another state “could not remove the discrimination.”) This was followed by Sipuel v. Regents and, finally by Sweatt v Painter — both of which proved the point that ‘seperate could never be equal.’ Brown merely extended these to lower levels of education, and, initially, gradually — remember ‘with all deliberate speed’?
But there is a better set of precedents — for the next part.
The rule of law doesn’t apply just to torture and those who order/justify it. Here, Publius is wrong, Brett/Sebastion are right and Brown v. Board of Education is not precedent for anything that doesn’t fall within the 14th Amendment’s injunction against denying equal treatment under the law based on race, creed, color or country of origin (or the due process part or the voting part). Brown reversed Plessy v Ferguson (separate but equal), and rightly so. “Equal means the same” is, I am pretty sure, a direct quote from Brown. The Court was construing the Constitution, not deciding that racial discrimination was bad.
I support gay marriage/civil union, whatever, but only through the legislative process for two reasons (two reasons for supporting the legislative process, there being more than two reasons for supporting gay marriage/civil union). First, I want to think that the law is grounded in statute, constitution and actual precedent, so that it is fairly predictable and we aren’t ruled by judges. There is no precedent under the US Constitution for mandating gay marriage nor any prohibition against outlawing it (see the 10th Amendment). Second, when gay marriage comes, it is bad business in several respects for it to come in the form of judicial fiat. Generally, Americans don’t like being ordered by judges to do things. Worse, a decision like this invites the worst kind of demagoguery followed by a constitutional amendment to reverse the court’s decision–and if it passes, all of the gains are wiped out until the constitution can be amended (good luck on that one). Already, a number of states have acted preemptively to amend their constitutions to prevent their highest court from mandating gay marriage. California is in a huge constitutional crises right now.
Negative injunction laws are inherently discriminatory. Brothers and sisters can’t marry and people who want to get high can’t buy dope legally. You can’t marry your dog but you can’t beat it to death either. Not all discrimination is bad. Irrational discrimination is bad, but viewed from a traditionalist’s perspective, gay marriage is a new and dangerous thing–being gay is a sin, blah, blah, blah. There are plenty of great arguments against this line of thinking, but I can assure you that when you roll them out in front of a church-going audience, the result is pretty much slack-jawed amazement.
From their viewpoint, preventing gays from marrying is perfectly rational. Most of the country has felt this way for a long, long time. And because most Traditionalists can’t even begin to understand that being gay is no more of a choice than being male or female; they don’t get the inherent wrongness of telling one very small class of people that it is outside of society. They think being gay is optional or treatable or anything that doesn’t force them outside their box.
Time will win this fight and in time, people in my state will be in the minority and they will be embarrassed, but that is 20, 30 years down the road. In the meantime, judicial shortcuts in a democracy take a bad situation and make it much, much worse. Consider this: a court can decide the gay marriage thing either way. What Publius is really saying is that he’s fine with judicial fiats he agrees with, even while he recognizes the inherent risk of judicial overreach.
“…but dear, blessed Typepad seems to have a length limitation that I frequently exceed.”
It doesn’t.
I have to go with no.
But I still think the court is doing the right thing, so I guess functionally yes? I guess I disagree with you assumption of what is the fundamental question.
mckinneytexas: In the meantime, judicial shortcuts in a democracy take a bad situation and make it much, much worse.
I admit the theoretical possibility, but as a practical matter of fact, you can see for yourself that when the courts rule for the legal equality of a minority against the wishes of rht majority, what in practice happens is that they take a bad situation and make it much, much better.
For everyone, at least, except those who are locked into the idea that marriage ought to remain a transaction of property in which a daughter is given by her father-owner to her husband-owner: the “traditionalist” view of marriage that already no longer legally exists in the US – even if by custom or religion some Americans still think that’s how marriage ought to be, legally, in every state in the US civil marriage is an equal relationship: “traditionalist” civil marriage no longer exists.
“Second, when gay marriage comes, it is bad business in several respects for it to come in the form of judicial fiat. Generally, Americans don’t like being ordered by judges to do things. Worse, a decision like this invites the worst kind of demagoguery followed by a constitutional amendment to reverse the court’s decision–and if it passes, all of the gains are wiped out until the constitution can be amended (good luck on that one).”
None of this is relevant to upholding a basic civil right. Civil rights aren’t subject to majority rule. They’re up to the courts to uphold. If a legislature gets their first, fine. But if not, it’s up to the courts to stand up for a fundamental civil right, such as the right to equal treatment before the law.
“Irrational discrimination is bad, but viewed from a traditionalist’s perspective, gay marriage is a new and dangerous thing–being gay is a sin, blah, blah, blah.”
Identically: “Irrational discrimination is bad, but viewed from a traditionalist’s perspective, integration is a new and dangerous thing — mixing races is a sin, blah, blah, blah.”
So courts should have never moved for integration: they should have waited for legislatures. Courts should never have struck down anti-“miscegenation” laws; they should have waited for legislatures.
But that would have been wrong.
“In the meantime, judicial shortcuts in a democracy take a bad situation and make it much, much worse.”
It’s not a shortcut to uphold a constitutional right. It’s a necessity for it to happen as soon as possible.
Letter From Birmingham:
How long would you wait while your marriage, or right to marry the person you wish to, remains illegal?
“I admit the theoretical possibility, but as a practical matter of fact, you can see for yourself that when the courts rule for the legal equality of a minority against the wishes of rht majority, what in practice happens is that they take a bad situation and make it much, much better.”
It depends on whether or not you think that the promoting a general disregard of actual statutory language in favor of breaking the rules and/or word twisting to get what you think is right makes it easier to get things like government sponsored torture when the right people think that is right…
If you want to argue that marriage ought to be extended beyond its traditional meaning of a man marrying a woman to honor realtionships between men and men and women and women, I’m willing to agree. If you want to have a debate about it, and legislate on the issue, I’ll be on your side.
If Bush wanted to argue, that torture ought to be allowed, because it isn’t likely to get out of hand, and was completely necessary for the defense of the country, I’m willing to vigorously disagree. If he had tried to legislate on the issue, I have demonstrated that I’m not on that side.
It is not legitimate to pretend that in the previously existing rules this was all just waiting around to be discovered. The torture memos and a number of self-evidently ends-oriented judicial rulings are just flip sides of the same coin.
Does this make the death penalty cases, and the gay marriage cases and the torture memos all just as bad as each other in a general sense? No. But in the sense that they are all corrosive to the rule of law, yes. And that they ironically make each other more likely to happen because they undermine the rule of law, yes.
Gary, what precisely is a civil right that the courts get to uphold, and what is not?
Thanks Gary for reminding of those inspiring words.
Aux barricades!!!!
Second, when gay marriage comes, it is bad business in several respects for it to come in the form of judicial fiat. Generally, Americans don’t like being ordered by judges to do things.
Posted by: mckinneytexas | April 27, 2009 at 01:55 PM
Way back at 10:15, wj said basically the same thing as this. Do you have any evidence of it? It’s funny that you mention preemptive anti-SSM constitutional amendments, since, as preemptive measures, they aren’t what you’re talking about at all. What makes you think that opposition to SSM is fueled by judicial rulings that didn’t happen?
And that they ironically make each other more likely to happen because they undermine the rule of law, yes.
Posted by: Sebastian | April 27, 2009 at 02:55 PM
I find this hard to believe. Each ends-oriented judicial ruling reduces precedent as one barrier to future ends-oriented rulings, sure, but that’s never the only effect and I doubt it is more important than things like the intent of the ruling. Pro-gay marriage judicial rulings and anti-death penalty rulings share in common a deference to the individual and a recognition that capricious government or majoritarian power is bad. Pro-torture memos demonstrate and promote the opposite ideas. It seems very unlikely that eroding precedent in very general terms by extending civil rights to more people makes it easier to deny them to others.
So after much thought, I’ve come around to the idea of using courts to legalize gay marriage.
The reason you are/were struggling with this is because you are addressing the wrong question.
I’ll put it quite simply: GAY MARRIAGES IN IOWA (or anywhere else) WERE NEVER “ILLEGAL”.
Nobody, for example, was ever arrested or fined for being gay married, or performing a same-sex “marriage”.
The question isn’t whether “gay couples can marry” but more accurately, whether the state must recognize same-sex marriages as marriages, and afford those marriages all the benefits and protections of opposite-sex marriages.
When looked through this prism — which is the only intellectually honest way to frame this debate — then the decision of the Iowa court is a no-braner. It’s NOT a “result-oriented” decision; rather, it is a decision in which the real-world result flows directly from the neutral principles and jurisprudence of equal protection.
Politically, gay marriage is controversial. Constitutionally — and as a matter of legal reasoning, it is not (this is what distinguishes the Iowa case from, say, Bush v. Gore).
You seem to acknowledge the discrimination is there; you clearly understand (I assume) equal protection. Therefore, you don’t need emotion, empathy, sympathy, outrage, etc., to reach the conclusion that states should recognize gay marriage. Cold neutral reasoning gets you to the same place.
If you do oppose judicial rulings that allow gender-neutral marriage, you should be secretly thrilled. 30 states have constitutional amendments that prevent the state from recognizing same-sex marriages. 19 states prohibit even recognizing civil unions, and 3 states prohibit granting any benefits at all. (In Virginia, contracts that might try to replicate any of the benefits that one gets from marriage are technically voided, although I am unaware of this extreme being enforced.) At most, 12 states can have their statutes against same-sex couples revoked by their courts.
Be happy! The legislative process has enshrined fear, hate, and discrimination in an orderly way in most states. None of the state supreme courts are likely to overturn your precious statutes and processes there.
People who hate gays still have a lot of places to live. We only have a few places where we can expect to be treated as equals. Today, many people do treat us as equals, but are unfortunately unaware of what we are vulnerable to.
Heck, I live in Utah. I can be thrown out of the house I am renting or fired from my job just because I have been faithful to another man for five years. It’s all very orderly and protected by the courts here, I assure you.
“It seems very unlikely that eroding precedent in very general terms by extending civil rights to more people makes it easier to deny them to others.”
Why? If you are in a workplace where the rules are regularly followed in most areas, violating them in any one area becomes institutionally difficult. If you are in a workplace where the rules are treated very casually, violating them in any one area is institutionally easy.
The rule of law as an institutional structure is about stregthening the norm of following the law even when it is difficult or you disagree with it. (Following it when it is easy and you agree with it doesn’t need institutional support).
Bandit–almost all of the state constitutional amendments were passed after the Massachusetts Supreme Court mandated gay marriage. This is the point I was trying to make earlier. Most Americans don’t want their lives run by anyone, particularly not a judge. We live in a constitutional democracy, meaning the constitution is supreme and must be enforced according to its plain intent (plain a perversely obscure term). State constitutional amendments cannot be set aside other than by the US Supreme for running afoul of the US Constitution or by subsequent state or federal constitutional amendment. When a populace can be terrified into passing anti-gay marriage constitutional amendments for fear of their state supreme court ordering gay marriage, the practical and overall effect of one or two courts recognizing gay marriage is grossly offset by the negative and much more difficult to eliminate barriers of constitutional amendments in many other states.
I am not thrilled at all that 30 states have constitutionally banned same sex marriage. Because the ban is constitutional and not statutory, lifting it will be extremely difficult and will make playing to the bigotry/ignorant crowd a sure winner for otherwise indifferent politicians.
“Most Americans don’t want their lives run by anyone, particularly not a judge.”
To point out the obvious, no one is obligated to have a gay marriage. Gay marriage involves courts running the lives of exactly no one.
Why? If you are in a workplace where the rules are regularly followed in most areas, violating them in any one area becomes institutionally difficult. If you are in a workplace where the rules are treated very casually, violating them in any one area is institutionally easy.
Maybe, maybe not. If the rules on time off are flexible and selectively applied, the rules about keeping the kitchen clean might be equally easy to break or they might not.
Following mckinney and Gary — Yes, and some of us object to having our lives run by the “bigotry/ignorance” crowd as well, even if that crowd is the majority on any given issue. My life is and has been affected in concrete and serious ways by the side effects of bigotry. My life (and my right to marry) affects bigots not at all, except, as mckinney said above, they might have go outside the box to face the fact that I’m actually real, and they don’t want to go there. That it’s my world too is exactly what they refuse to recognize.
This BS about how allowing me to get married is somehow running someone else’s life is tiresome, to say the least.
Besides that, we’ll never know, but I would suspect that at least some of those 30 state constitutional amendments would have happened even if the change in Massachusetts had come via popular vote rather than the court. And if it was so easy to pass constitutional amendments in one direction, how much harder can it be to repeal them? (Let’s say 20 years down the road when we’ve moved a generation along.)
GF–good point. It would have been better to have said, ‘most Americans don’t like their laws changed by judges’. No one is affected by gay people marrying except those who let themselves be affected. Still, the downside of judicial fiat outweighs the upside.
I can imagine a norm where courts just say “I’m striking this down because this is immoral and no government has the right to do this.” There are some categorical prohibitions that apply to all human beings, even those that for the government. De facto, this means the court would have veto power over anything the government did that the court deemed to be immoral.
Note that this would be unidirectional–if it would be illegal for the government to do something, the court couldn’t make it legal. The government has enumerated powers and courts could neither compel nor permit the government to go beyond those powers.
Yes, this means courts would restrict the government’s power in ways that would piss me off, e.g. Lockner. I think it would be worth the price, though. The government’s sins seem to be more of commission than omission.
From Andrew Sullivan at 4:08 p.m.: “Abortion, Homosexuality And The Young
Some interesting fleshing out of data we already knew. There has been a sea-change among the young in attitudes to inter-racial marriage and homosexuality over the last thirty years. Abortion: not so much.”
The last bit is a link to this.
As I was saying this morning….
No one is affected by gay people marrying except
those who let themselves be affected.the couples themselves and their families.There — that makes a lot more sense.
“Most Americans don’t want their lives run by anyone, particularly not a judge.”
And yet gay people find their lives run by bigots, and the bigots seem to have no problem at all with it.
I’m no Constitutional scholar, nor even a lawyer, but it seems to me that if Loving said the state has no power to restrict the skin color of who you can marry, and Lawrence said the state has no power to restrict the gender of who you can have sex with, then it’s a short leap to decide on those principles alone that the state has no power to restrict the gender of who you can marry.
This is a beautifully thought-out and justice-affirming piece, thank you.
Phil, actually, while what you said makes sense, the point i was making is that gay marriage shouldn’t bother anyone and it only bothers those who allow it to do so.
Gays have been discriminated against, marriage-wise, universally for thousands of years, maybe forever. Doesn’t make it right. The notion of legalizing gay marriage is perhaps 50 years old. Not everyone who opposes gay marriage does so for bigoted reasons, but it has a bigoted outcome. Ignorance is the larger enemy.
Yes, a court could reason its way to mandating same sex marriage via the equal protection clause. If you think the abortion wars are fun, just wait until the gay marriage constitutional amendment fight begins. And it’s a fight gays cannot afford to lose because if the US constitution is amended to outlaw gay marriage, or to allow states to outlaw gay marriage, there is virtually no going back, the amendatory process being what it is.
Sorry, the link in my 6:05 looked fine on preview. It was this:
http://scienceblogs.com/gnxp/2009/04/the_two_gay-friendly_cohorts.php
Sebastian: It depends on whether or not you think that the promoting a general disregard of actual statutory language in favor of breaking the rules and/or word twisting to get what you think is right makes it easier to get things like government sponsored torture when the right people think that is right…
Wait a minute. So you’re now arguing that the judicial process determining that same-sex couples have the freedom to marry is wrong because the judicial process might rule that torturing prisoners is a basic civil right that may not be abrogated?
I’m glad I don’t live inside your mind, Sebastian, where somehow you have decided that your freedom to marry the man of your choice is exactly like Charles Graner’s freedom to torture prisoners in Abu Ghraib.
I wish you didn’t live inside your mind, either, because it strikes me as a pretty ugly place.
“It would have been better to have said, ‘most Americans don’t like their laws changed by judges’.
Most Americans don’t notice 99% of laws changed by their legislatures, and they don’t notice 99.99% or more of judicial decisions.
Most Americans neither notice or care when most laws are changed by anyone. Most Americans notice only a tiny fraction of laws being changed, whatever the source, usually when the law either: a) directly affects them, and they don’t like it; or b) when a hot-button issue gets demagogued, and it’s one of their hot buttons.
I don’t believe most people care all that much, in either case, whether it’s a court or a legislature that does it. This is, to be sure, my subjective opinion, and I don’t have a handy poll or statistic to support it.
But I don’t believe most people who are hot and bothered, and terribly upset, because someone else might be allowed to marry someone they disapprove of — a same-sex marriage — are, as a rule, less wrought up by legislatively enacted gay marriage than they are by judicially enacted gay marriage.
Sure, there are people like you and von and Sebastian who prefer one method to another, but none of you are among the people who are actually upset by gay marriage.
The people who really care about this issue are those who feel strongly either that gay marriage is icky, against God’s will, and a threat to their way of life, or those who feel that it’s a simple matter of justice and human rights.
And neither side, for the most part, cares all that much, by my observation, about the judicial versus legislative part.
Your mileage on this, as we say, may vary.
“No one is affected by gay people marrying except those who let themselves be affected. Still, the downside of judicial fiat outweighs the upside.”
All judicial decisions are “judicial fiat.” It’s just another scare term. It’s not an argument.
Actually, GF, the people who were all worked up over the notion of a judge changing the definition of marriage are the ones who passed 30 state constitutional amendments because they were BS’d into believing that judges would redefine marriage. Generally, most Americans are oblivious to the law, but marriage, abortion and a few issues like that resonate and are used shamelessly by politicians of every stripe.
I’ve really been impressed with the contents of the comments pro and con in this thread. It represents the very best of what the blogosphere is about.
This quote is what makes me disagree with Publius: “And while I generally agree with those sentiments in almost all contexts, race was different. It was a unique problem, and it demanded a more unique response. Most obviously, the “legal process” surrounding race was itself flawed given that blacks were systematically excluded from the ballot boxes.”
I am agnostic on the merits of Brown, not having researched it fully. My gut is that Publius is right — race was unique and it deserved a unique response, particularly because of the systematic and widespread effort to exclude blacks from the excercise of any political power. Courts had no choice but to step in.
In Iowa where I live and the court just stepped in, I am aware of no such exclusion of gays from the voting booth. As far as I know, nobody has introduced a gay voting rights act here, because there is no need.
Further, I am part of that younger generation that supports gay marriage. Democracy was in the process of working. Now it is a wreck and I would not be surprised if we end up with a constitutional amendment that will push back ultimate vistory for decades.
a judge changing the definition of marriage
Which of these states had, in their constitutions, a “definition of marriage” to begin with?
Phil, I was thinking the same thing. There is something very odd about the notion that gays should have sought a legislative solution rather than a judicial one prior to such amendments. Most states didn’t have a statute one way or the other about whether two men could marry. At most, an ordinance. So why should gays assume they need a legislative change? If I think I qualify for a zoning exemption or a drivers license or something, I don’t usually need a legislative fix to prove it before I apply. I just go ahead and apply, and if I get turned down, I can go to court. Why admit that the law has to be changed, when your probably qualify under the law as it stands?
JanieM, the retention bias noted by Cass Sunstein (among others) makes repeal more difficult than enactment. People don’t like getting rid of things, even bad things.
It probably will happen eventually anyway, but having an express constitutional provision against will make it harder.
Catsy, I think this comment of yours misses something important:
I defy you to identify a substantial or meaningful way in which the history of prejudiced legal rulings, history of prejudiced laws, or tradition-based justifications of said prejudice is different between racial and sexual discrimination.
The rulings and laws themselves are only a small part of the history of the laws. Jim Crow arose from the Civil War, which in turn arose from our nation’s “original sin” of slavery. Racial issues have been the most divisive issues in America throughout its history. We never fought a civil war over gay rights and I daresay we never will, nor did we put special compromise clauses into the Constitution about it. We had to make changes in criminal trial procedure, espcially jury selection and death penalty standards, because we could not trust anybody in the system to follow the existing rules sensibly when racial issues were involved.
In the same way, it turned out that we needed an unprecedented level of federal court interference with the minutiae of local government to enforce civil rights laws and amendments. The courts put their legitimacy very much at risk by going strongly against public opinion in vast swaths of the country. But the courts were the only body that could muster the kind of moral authority needed to challenge those norms.
I think many people are just as irrational about homosexuality. But that irrationality just has not had the kind of horrific effect on our country that race hatred has.
That difference weakens publius’s policy-based arguments. Do gays need judicial intervention as much as blacks did? Maybe. Is the threat to public order so great that the rest of us need to provoke another rift between the courts and the public? With race rights, we had a choice between the courts stepping in and an endless series of riots and domestic terrorism, maybe even armed insurrection. Denial of gay marriage rights is not nearly that incendiary.
Personally, I’m not nearly that much of a utilitarian or legal realist; I want the courts to do the right thing, come what may. But that’s a different argument.
“But at some point, if my theories justify cruel and dehumanizing discrimination, well… maybe it’s time for new theories.”
So, when legal conservatives finally are able to overrule Roe, you don’t mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?
almost all of the state constitutional amendments were passed after the Massachusetts Supreme Court mandated gay marriage.
mckinneytexas, I think it is pretty likely that those same states would have passed constitutional amendments even in the case where the MA legislature legalized gay marriage. Many people were offended by the substantiative outcome, not by the method by which gay marriage was legalized. Consider this: in states where gay marriages performed in other states are not recognized, there is no attempt made to differentiate gay marriages performed in states where gay marriage was legalized judicially versus legislatively. If all these people in all these states really do care about the method by which legalization happened rather than the fact that legalization happened, we should see far more permissive laws and attitudes regarding gay marriages made in Vermont.
feddie – that’s actually a very interesting question. i think these gay marriage decisions are significantly more defensible than roe.
and it’s an interesting question b/c the same power that gives you Roe gives you the power to outlaw all abortions too.
So, when legal conservatives finally are able to overrule Roe, you don’t mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?
This is absurd. Many opponents of abortion have been extremely clear that they have no intention of returning abortion to the states and allowing each state to have its own abortion laws: they’ve been clear that after overturning Roe v Wade, they plan to seek national legislation banning abortion in addition to legislation in every state. That’s why they have also been pushing a right to life amendment for decades.
Frankly, I think it is insulting to claim that many anti-abortion groups will not seek to eliminate legal abortion using any legal means available. I mean, these groups have been quite clear that they view abortion as murder, so criminalizing abortion at the federal level makes perfect sense for them.
I have no interest in debating abortion policy, but I think we should all be able to agree that if Roe v Wade falls, abortion will very much remain a federal issue (while also becoming an issue in many states).
Turbulence-
With respect, you’re not paying attention. Every legal conservative I know believes that overruling Roe will simply return the issue to the States. Now, do I and many other social conservatives want to amend the Constitution to outlaw all abortions. You bet we do. But you see, Article V allows us to do just that. That’s not lawlessness. That’s democracy.
My point to Publius btw was that under his theory conservatives could just bypass the amendment process after Roe is jettisoned, and argue that the Constitution actualy mandates that abortion be outlawed.
Oh, and I can make that argument fwiw.
“Is the threat to public order so great that the rest of us need to provoke another rift between the courts and the public?”
This is an argument that unless the threat to the actual lives of members of a group, such as the much larger group of people than the set of African-Americans known as “women” rises to the level of approximately civil war, as well as any other group of people whose denial of rights doesn’t provoke the the interstate strife of civil war, or something approximating that state, courts shouldn’t be used to instantiate or support the rights of any such group.
In other words, I answer your question with an emphatic yes.
The fight over whether women have equal rights in law with men, for example, took over one hundred years more than it took to establish, at least on paper, the rights of African-Americans to have such legal rights. And whether the Fourteenth Amendment fully covers women, thus making the Equal Rights Amendment unnecessary, still isn’t, last I looked, 100% affirmed in our law. (I welcome corrections from actual lawyers if I misunderstand this.)
Forms of oppression don’t come as clones of each other. Chattel slavery was a unique form of oppression, but the oppression of women is another unique form of oppression. That a civil war hasn’t been fought over it doesn’t make it a lesser form of oppression.
That gay people have been forced to live in figurative closets, forced to live in hiding or denial, been persecuted, beaten, and killed, as long as our republic has been around, and longer, as well, doesn’t make their oppression less than other forms just because they haven’t been prevented from voting.
Or we could talk about religious bigotry as it has played out in our country’s history. Or ethnic bigotry. (Or a combo deal like antisemitism.)
Social and legal oppression comes in different forms in different cases; they’re not comparable in simple and measurable terms. One shouldn’t be pitted against another in contests of “who’s worse off?” and no one should have to wait for their basic civil and human rights.
It’s especially easy, and dubious, to tell other people they have to wait and be patient to obtain terms of life one has had since birth.
“Denial of gay marriage rights is not nearly that incendiary.”
We’re individuals. It’s individual lives that are incinerated, or at least singed. If you can get most people who can’t marry to sign off on this idea, I’ll be more inclined to accept the point.
“Do gays need judicial intervention as much as blacks did? Maybe.”
Respectfully, I can’t begin to say how uncomfortable I am with people passing judgment this way on the lives of others.
“So, when legal conservatives finally are able to overrule Roe, you don’t mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?”
You’d have to think that someone was being cruelly and dehumanizingly discriminated against for that to make sense.
“Chattel slavery was a unique form of oppression, but the oppression of women is another unique form of oppression.”
Ok, I’m confused: Why the past tense in one case, present in the other? Chattel slavery is scarcely a thing of the past in other parts of the world, (And even crops up occasionally here in the US, though not openly.) while to call women oppressed in the US is an insult to all victims of real oppression.
Gary @ 8:34: thank you. Well said.
Jesu: you have decided that your freedom to marry the man of your choice is exactly like Charles Graner’s freedom to torture prisoners in Abu Ghraib.
Sebastian: Does this make the death penalty cases, and the gay marriage cases and the torture memos all just as bad as each other in a general sense? No. But in the sense that they are all corrosive to the rule of law, yes.
“Exactly like”? Not even close. But I think you knew that, and were just looking for (another) chance to slam Sebastian.
Because we are talking about US laws, Brett and laws here have done a decent job of stamping out chattel slavery. Though the notion that if someone is treated worse, the people who may be treated badly, but not as badly as the worst case, have no standing to complain is something that runs through all your comments.
“Ok, I’m confused: Why the past tense in one case, present in the other? Chattel slavery is scarcely a thing of the past in other parts of the world,”
Because I’m talking about the U.S.
[…]
“(while to call women oppressed in the US is an insult to all victims of real oppression.”
I accept that you’re quite blind to it, Brett, but I decline to bother to engage in a futile attempt to convince you of how wrong you are. Go read a good reading list of feminist books.
Every legal conservative I know believes that overruling Roe will simply return the issue to the States.
Sure, the issue will return to the states, but there is no reason to believe that it will not continue to be a federal issue. After all, the federal government preempts state regulation in many areas. After the fall of Roe v Wade, many anti-abortion groups will seek both federal and state legislation banning abortion.
I do not understand why anti-abortion groups would tolerate a legal regime in which infanticide was legal in New York but illegal in Connecticut. Nor do I understand why groups that consider abortion to be equivalent to infanticide should tolerate a legal regime in which abortion was legal in some states but not others. After all, if slavery is wrong, it should be illegal in all states, right? If murder is wrong, it should be banned in all states, right?
Now, do I and many other social conservatives want to amend the Constitution to outlaw all abortions. You bet we do. But you see, Article V allows us to do just that. That’s not lawlessness. That’s democracy.
First of all, amending the constitution so as to ban abortion will keep abortion as a federal issue. Most such amendments simply nullify Roe v Wade, but in a world where Roe v Wade does not hold, there is no bar on federal restrictions of abortion. Beyond that, some of these amendments explicitly ban abortion in all states, completely eliminating the states’ right to decide on their own abortion laws.
I never said that this result would be lawless or undemocratic. My contention was simply that eliminating Roe v Wade will not eliminate abortion as a federal issue. You have created rather dull strawmen when you talk about lawlessness and undemocratic behavior.
Gary, with respect, you’re simply repeating at greater length the point I made at the end of my last post. From a natural law, Kantian, or Rawlsian point of view, it doesn’t much matter how many people are hurt, how much the harm to them disrupts society, or how hard it is to remedy the wrong. From a utilitarian or ‘policy’ standpoint, it does. Neither of us are that utilitarian.
But I prefer to take risks with my eyes open. Publius says he thinks the republic will survive. I dunno — we’re in pretty lousy shape, rights-wise, and it’s in large part because outraged traditionalists keep putting people like Bush into office. Publius is taking a non-absolutist natural rights position: freedom and dignity, but not to the point of a suicide pact. Sounds good to me, but in that case, let’s talk about the risks. The last time we had this kind of kulturkampf over court decisions was Roe v. Wade, and the backlash from that helped propel Bush into office. So, if this strategy gives us President Palin, will it
be worth it?
I don’t think you can answer that just by saying that it is worth it to the victims of oppression, or that both blacks and gays were denied marriage therefore they are in all relevant ways the same.
Ok Gary, I accept that you find the fact that life in the US isn’t designed for the exclusive convenience of women to be comparable to the suffering of a chattel slave in the Sudan. I think it shows a crazy lack of proportion, but that’s your view.
Publius says he thinks the republic will survive. I dunno — we’re in pretty lousy shape, rights-wise, and it’s in large part because outraged traditionalists keep putting people like Bush into office.
I think you’re making a claim about how certain forms of judicial decision make cause traditionalists to vote for conservative politicians like Bush. Is that right? If so, then I don’t find your argument about causality to be self-evident here. Do you have any evidence to justify this belief?
I’d suggest that there are many other things that outrage traditionalists into electing leaders like Bush. For example, the pace of technological and economic change has increased which is naturally unsettling to vast numbers of people. I mean, voters are supporting reactionary conservative politicians in countries all over the world and most of those countries do not exhibit the court dynamics under discussion here.
“Ok Gary, I accept that you find the fact that life in the US isn’t designed for the exclusive convenience of women to be comparable to the suffering of a chattel slave in the Sudan.”
What I actually wrote:
So, sure, by “not comparable” I meant “comparable.”
Not.
“but in a world where Roe v Wade does not hold, there is no bar on federal restrictions of abortion.”
Ah, but this is the precise point: The sort of judicial activism which gave us Roe, (And the more important, and undeservedly less notorious Doe v Bolton.) is precisely the reason that getting rid of Roe would, under current precedent mean there was no bar on federal restrictions of abortion.
It was the same sort of judicial activism that produced Roe, that gutted limits on federal power. And if they’d not been gutted, abortion would be beyond federal reach, aside from perhaps barring crossing state lines to obtain one. And even that would be a stretch under pre-Wickard commerce clause understandings.
You win your victories this way, at the cost of making them forever insecure.
“That a civil war hasn’t been fought over it doesn’t make it a lesser form of oppression.”
True. A hell of a lot of other things make it a much, much lesser form of oppression, if you must stoop to so misuse the word.
Strict constructionism is not perfect, but it’s reasonably predictable. Judicial activism and a “living constitution” aren’t. Whatever it creates today it may destroy take away tomorrow.
“Ok Gary, I accept that you find the fact that life in the US isn’t designed for the exclusive convenience of women….”
Brett, I’m curious: why do you think it is that the overwhelming majority of prostitutes are women, not men?
Why do you think it is that out of one hundred Senators, only two are women? Why do you think it is that there has yet to be a woman President? Why do you think it is out of 500 “Fortune 500” companies, only fifteen are headed by women? Why do you think it is that it’s mostly women who are raped, not men? Why do you think it is that many flavors of various religions preach that women must submit to men, and not vice versa? Why do you think it is that many flavors of various religions preach that women don’t have equal legal rights to men? Why do you think it is that in the lifetime of some still alive, women had no right to vote in our country?
And so on.
I imagine that where the differences in position are as stark as they are in, say, Afghanistan, or Saudi Arabia, you wouldn’t contemptously argue that “life [there simply] isn’t designed for the exclusive convenience of women,” but you might — and I’m going out on a limb here — notice that their societies are violently sexist against women, and that the sexism and power aren’t mirror images there for each gender.
But here in the U.S., where you have the privileges of a male, and don’t have to bother to educate yourself or pay attention to the power imbalance between women and men that still dramatically exists, beyond noting the most obvious and superficial points, such as that, say, women now have the right to vote, you can afford to be blind to ongoing sexism, and dismiss it, like you dismiss the class oppressions of anyone who isn’t you, as trivial.
How lucky you are.
On a statistical basis, I suppose we might prefer that the majority oppress the minority, rather than the other way around, but shouldn’t we really prefer that nobody gets oppressed?
link
The democratic process may frequently result in oppression of the minority by the majority, (Which is why I think as much of our life as possible should be out of the government’s reach, period.) but oligarchy can result in oppression of the majority by the minority, which is at least statistically worse. And rule by judges is just as much oligarchy as rule by any other clique.
link
Funny how for Brett, it’s oppression when it’s universal health care or firearm registration, but it’s not when it is related to sexism. Wonder why that is?
Typepad stripped out the links. They were
http://obsidianwings.blogs.com/obsidian_wings/2009/04/why-we-need-universal-health-insurance.html?cid=6a00d834515c2369e2011570313109970b#comment-6a00d834515c2369e2011570313109970b
and
http://obsidianwings.blogs.com/obsidian_wings/2009/04/and-now-for-something-completely-different.html?cid=6a00d834515c2369e2011570093451970b#comment-6a00d834515c2369e2011570093451970b
‘Dan S.:: . . . and hopefully we’ll continue to see further medical/public health advances in the fight against illness in the U.S. . . .
Brett Bellmore: What are you talking about?! To say that people in the U.S. are ‘sick’ are an insult to all victims of real illness! To say that anything Americans go through is somehow comparable to the suffering of people in places where basic medical care is rare of absent, where horrific parasitical diseases kill or cripple millions, etc., etc., etc. . . ‘
“When the law prohibits both people who want to do something, and people who don’t want to do it, from doing that something, that’s not strictly speaking “discrimination”, for all that the impact is felt differently by the two groups.
Let’s say a law was passed banning the production, distribution, buying and consumption of matzo. (The War on Unleavened Bread Products). This law would be quite even handed, prohibiting it both for the countless people who have no desire to be in any way involved with this particular rather dry flatbread, as well as people who do. In a certain sense, it’s treating everybody ‘equally’, for a certain understanding of the word. Would this ban be discrimination?
____
I’ve read arguments that the anti-abortion backlash, at least in the beginning, didn’t really have to do so much with the means of decision – ie, federal judiciary vs. state legislatures -but with the fact that it a) made abortion much more public and explicit, b) openly defined it as a woman’s choice, not a last-ditch medical procedure chosen by doctors, and c) and announced that fetal ‘personhood’ was up for grabs.
—
“the fact that life in the US isn’t designed for the exclusive convenience of women”
That seems a very telling phrase.
“Funny how for Brett, it’s oppression when it’s universal health care or firearm registration, but it’s not when it is related to sexism. ”
OMG, I completely failed to put 1 and 1 together and connect Brett’s comments here with the slightly earlier ones on horrible government coercion. For some reason talking about government coercion doesn’t insult victims of far more brutal and coercive governments than ours. If only there was a nifty acronym for this sorta thing . . ..
@ Brett Bellmore: In your first comment, you seem to echoing the principles espoused by Raoul Berger in his 1977 book Government by Judiciary, but you reach opposite conclusions on the merits of Brown. It’s been a long time since I read Bergers book, but as I recall he argued that a number of states which had segregated school systems ratified the 14th Amendment without even considering desegregating their schools, and that we can therefore conclude that at the time the 14th Amendment was adopted, it was not understood that segregated schools were not prohibited by the 14th Amendment. Unlike Berger, you haven’t provided any arguments or facts to support your opinion of Brown, so I’d say that Berger wins the argument by default. In 1850, most people held views that we would recognize as racist today. The argument at the time was basicly over a matter of degree. Some people argued that blacks were so far inferior to whites that blacks shouldn’t be granted the same right to liberty that we would grant even to the village idiot, as long as the village idiot were white. Others, somewhat more enlightened, argued that even blacks were entitled to some minimal level of human rights. The originalist view basicly imortalizes the prejudices that existed when the Constitution was written. It seems to me that if you don’t want a jurisprudence that reflects racist, sexist, and homophobic views, you have to allow the basic Constitutional principles, such as equality, to reflect the way our understanding of those principles has evolved over time.
What is an “ex ante principle”?
This has been a wonderful discussion, far leaving my points behind. But I have to ask those who are arguing in favor of a legislative solution, when has a legislature edvedr gotten out in front of the judiciary on a topic like this?
In racial civil rights, the legislative accomplishments were zero — they weren’t able to institute a voting rights act — the most elemental of civil rights — or outlawing the white primary, or even passing an ‘anti-lynching’ bill or an ‘anti-poll tax Amendment’ until long after tyhe courts had shown the way.
Women, of course, celebrate the legislative passage of the Equal RFights Amendment every year on — now wait a second, no they don’t, do they?
And states with anti=-sodomy laws, maybe they weren’t enforced, but — correct me if I’m wrong — I don’t remember any states acting positively to revoke such laws.
Racial and gender segregation in the Military didn’t end by an act of the legislature but through executive orders.
(And even as gay-friendly a state as New York has yet to pass a true gay rights bill, or did so only in the last couple of yearxs.)
Discrimination is, until attacked by the sourts, popular, and politicians are less willing to offend the noisy bigots than the quieter anti-discrimination forces, again, unless forced to do so. (Harvey Milk’s greatest achievement was showing that gays could be a political force as well.)
Wiat for the legislatures, and you’ll have a long wait — and would have had decades longer if the courts had not moved first.
But I have to ask those who are arguing in favor of a legislative solution, when has a legislature edvedr gotten out in front of the judiciary on a topic like this?
In Japan, where the judiciary is very conservative and the process of getting a case to court can take any number of years, human rights advocates have spent more time and effort trying to get laws written than trying to bring suits to trial. This makes sense because Japan has often accepted and given lip service to accepting documents that it votes on in the UN, but then fails to have their internal legal code support the rights that it claims to believe in. However, in the US, the courts are more accessible and decisions are more binding. In this sense, the judiciary can pull the legislature into writing code that better deals with the current situation. Thus, though I don’t disagree with your summary, I tend to view it as (ideally) a balanced effort that draws upon the judiciary to be a place where the evidence can be presented with a high standard and legislatures can then deal with the reasoned decisions of the judiciary. That’s the ideal, not necessarily the reality.
Why do you think it is that out of one hundred Senators, only two are women?
Gary? There are sixteen women in the U. S. Senate. (Not that that detracts significantly from your overall point.)
“Gary? There are sixteen women in the U. S. Senate. (Not that that detracts significantly from your overall point.)”
You’re confused.
No, I’m confused. There are 17 women in the Senate.
Actually, I believe that anti-sodomy laws had been repealed by legislature in many states before Lawrence v. Texas. Wikipedia agrees. 27 states repealed sodomy laws between 1962 and 2003.
“Which of these states had, in their constitutions, a “definition of marriage” to begin with?”
They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word ‘is’. That is part of the pretense. If judges can redefine perfectly understood words, and if publius et al. support that, it really never ends. Marriage wasn’t an ambiguous term. If we want to extend it to gay people (and we should want that) we can. But that doesn’t mean the meaning was there all along.
And as for fun with commonly understood meanings of words, I refer you to the recently revealed torture memos…
Sebastian: No one had to explicitly define marriage as between a man and a woman any more than you have to define the word ‘is’.
Actually, as the British Government found out in 1975 when they realised that they had Jan Morris, living and accepted as a woman, still married to her wife, you do have to explicitly define marriage as something that can only be between a man and a woman. Otherwise, yes, same-sex couples will marry. Or remain married, in the less-usual cases like that of Jan Morris. (Who, not long ago, registered a civil partnership with the wife from whom she was forcibly divorced by legislation more than 30 years earlier…)
Marriage wasn’t an ambiguous term. If we want to extend it to gay people (and we should want that) we can. But that doesn’t mean the meaning was there all along.
People who defined marriage as meaning a relationship between two people who had made a lifelong and loving committment to each other – not an ambiguous term in the least! – understood that this applied to same-sex couples too. Your notion that it can’t is sad and self-hating. But that still doesn’t make your freedom to marry anything like Dick Cheney’s freedom to authorize torture.
They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word ‘is’
Marriage? Don’t you mean hǣmedþing? Man? Don’t you mean beorn?
While marriage with parties* of opposite sex may be the common understanding, the restriction to 1 each is not. Historically moderate polygyny is the norm not the exception.
Btw, do the US recognize marriages with more than 2 people when not originating from the US (say, a Saudi or trad. African marriage)?
*partner would imply equal, which is also far from universal.
They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word ‘is’. That is part of the pretense.
Oh, OK then. You mean words like “cruel” and “unusual” and “no law” and things like that, right?
“Brett, I’m curious: why do you think it is that the overwhelming majority of prostitutes are women, not men?… Why do you… Why do you… Why do you…
Because women and men don’t only differ in their plumbing. We differ in our brains, too.
Do you think male and female lions act differently due to socially constructed role models? We’re animals, too, you know. Our choices are more constrained by neurobiology than people really like to think. In a perfectly unbiased environment, we would NOT be doing the same things. Ergo, the fact that we’re doing different things can not reasonably be considered proof that we’re being coerced. Got to actually show the coercion.
The overwhelming majority of prostitutes are women because women have a lot less interest in buying sex without commitment than men, and a lot less innate hostility to the idea of having sex with somebody they’re not attracted to in return for money. In the same dire straights, men will resort to doing something equally desperate, but different.
Why didn’t you ask, “Why are most of the people rotting in prison men? Why are most of the people paying child support, and denied custody, men?” Didn’t confirm your thesis, I’m guessing.
No, while there’s oppression in the US, oppression on the basis of sex is at most a second order phenomenon, and not all of it cuts against women, as you can see in custody and support hearings.
To put it another way, Sebastian: To say that there was no need for the various state constitutions to define “marriage” because everyone know what “marriage” means is question-begging at its finest. Once it become clear that at least a few of these constitutions had enough daylight that there was no legal reason to exclude gays and lesbians from marrying, some people sure found a need to define “marriage” in the constitution right quick, didn’t they?
I mean, everyone know what “religion” means, and yet look at where we are after a couple of centuries of establishment clause jurisprudence.
Everyone knows what the American flag is, but let one of those atrocious flag desecration amendments ever pass, and I bet that we’re going to have a lot of people asking, “Just what do they mean by ‘American flag?’ Is this a flag? Or this?”
Everyone knows what “freedom of speech” means, and yet etc. etc.
So, no, if someone is going to repeatedly complain about “judges changing the definition of marriage,” and I ask, “How was marriage defined in their jurisdictions prior to their decisions?” you’re going to need to do a lot better than “Everyone knows what ‘marriage’ means.” That argument doesn’t even get you to the table, let alone to the next hand.
ETA: Can someone else argue about the naturalist fallacy with Brett? I’m tired.
I don’t think you quite understand my point, if you think I’m engaged in the naturalistic fallacy. I’m not arguing that what people are doing is good, because it’s natural.
I’m arguing that because men and women are biologically different, you can’t use the simple fact that they don’t end up doing the exact same things in the exact same proportions as proof of coercion, of oppression. Even if we were completely free, we wouldn’t be doing the same things, because we aren’t the same to begin with.
Brett: We differ in our brains, too.
You’re certainly different in your brain, Brett, but I don’t think it’s because of your gender.
Of course it was routinely asserted that the “reason” black people were discriminated against in North America and Europe and indeed anywhere the white colonists from Norther Europe had gone, was because their race made them “different in their brains”.
Do you think male and female lions act differently due to socially constructed role models?
Do you think a pride of lions is not a social construction?
I just find it awfully convenient, Brett, that everything that benefits you appears to be the product of hard determinism; while everything that inconveniences you appears to be the product of malicious, even sociopathic, motivations on the part of others.
Do you think a pride of lions is not a social construction?
If “social construction” is going to carry the load it’s been assigned, rather than representing a tautology applicable to any situation where two or more entities interact, no, I don’t think a pride of lions is a social construction.
“Social construction” carries the implication that it could just as well be otherwise. Not the implication of a situation which is the natural consequence of the inherent nature of the entities interacting, and which wouldn’t be otherwise without extensive on-going intervention. (IOW, just because you could put some lions through massive operant conditioning, and create a pride centered on one lioness and a group of males, doesn’t mean that the normal arrangement is arbitrary.)
We are animals, complete with instinctual drives and predelictions which differ between the sexes. Pretending that any disparity in circumstances or behavior between the sexes is evidence of coercion is madness. Such may represent instances of coercion or opression, but the simple disparity doesn’t prove it.
Because women and men don’t only differ in their plumbing. We differ in our brains, too.
The problem with this, Brett, is that while there is perhaps some small “natural” cognitive dimorphism, the human brain is also incredibly plastic and our preferences and behaviors even more so.
It might be that in some perfectly controlled experiment we could somehow observe the “natural” differences between men and women, but we don’t have one. Meanwhile, there are so many powerful factors other than genetic makeup that affect who we are–things like infant nutrition, infant and early childhood socialization, etc.–that the fact is you simply can’t assert that “men and woman may be (slightly) different, thus all sexist behavior is natural”.
It’s like having two pieces of wooden furniture, and someone points out that they’re different colors. You say, “Duh, one’s made from beech and one from poplar. Case closed.”
Except both pieces are painted
I’m not asserting tht men and women are different, and thus all sexist behavior is natural. I’m asserting that, because men and women are different, you can’t presume that differences in circumstance or behavior are the result of oppression.
I’m arguing that, if you’ve got two pieces of furniture which are difference kinds of wood, you can’t use a difference in color as proof that they’re painted. You’ve got to prove there’s paint there.
, you can’t presume that differences in circumstance or behavior are the result of oppression.
Oh, if only there were some sort of historical record of social and legal interaction to which we could refer!
I’m not asserting tht men and women are different, and thus all sexist behavior is natural. I’m asserting that, because men and women are different, you can’t presume that differences in circumstance or behavior are the result of oppression.
I’m arguing that, if you’ve got two pieces of furniture which are difference kinds of wood, you can’t use a difference in color as proof that they’re painted. You’ve got to prove there’s paint there.
You’re missing the point.
We already know they’re painted. Everything we know about biology and history tells us that any innate differences are only one small factor among many.
And even where there is some small established difference–such and such a hormone causes such and such a brain structure to look a little different–that ‘innate’ factor interacts in unpredictable ways with all the hundreds of others.
You simply can’t take a behavior at the output end of that process, and say that it’s because “men and women are different”.
Like you did here:
You are making tendentious assumptions at virtually every stage of the game to get to that statement.
such and such a hormone causes such and such a brain structure to look a little different
I should clarify here that this is even assuming the hormonal/structure difference is innate/genetic. I think people often underestimate the degree to which biological processes like hormone expression are influenced by social interactions.
“To say that there was no need for the various state constitutions to define “marriage” because everyone know what “marriage” means is question-begging at its finest.”
I don’t see why you are so strenuously agreeing with me: for various definitions of ‘no need’ ‘various’ ‘because’ ‘everyone and ‘question-begging’ you clearly are agreeing with me on every possible particular.
If you don’t want to defend your premise that, for judges to be accused, in the context of a legal proceeding, of “changing the definition of marriage,” there doesn’t need to actually be a legal definition to be changed, that’s fine, Sebastian. Just say so. I’ll move on to discussing things with people interested in defending their premises.
You don’t think that was a defense? I don’t think you understand your argument very well then.
We use words to write laws. You can’t define all the words and all the definitions and all the definitions of the definitions ad infinitum.
In US usage, the term ‘marriage’ was not ambiguous as to the sex of the parties. So unambiguous in fact that if you want to talk clearly about close relationships between same-sex partners as ‘marriage’ it is necessary even now to refer to them as ‘gay marriages’ or ‘same-sex marriages’. There was not a latent ambiguity in the term as to the sex of the people involved that was suddenly discovered in the 1990s. The term marriage was not left undefined as to the gender of the parties because people generally thought marriages might include same-sex partners. If you want to claim that, and you seem to, you should probably find some small bit of evidence in that direction.
If you are going to hang your hat on “every definition of every word has to have definitions which have to have definitions which have to have definitions” you are arguing for an illusion of precision which in fact always leaves everything open.
As an argument by analogy, I’m fine with “Hey, a lot of the deep meaning of marriage is about two people who love each other coming together and committing to one another. Gay people do that too. We should extend it past its old meaning of a union between a man and a woman to include a man and a man or a woman and a woman.”
That isn’t at all the same as “Marriage wasn’t hyper-technically defined as between a man and a woman (cough, because everyone knew it was obvious) so we are going to legalistically seize on that to avoid discussing the topic and trying to convince anyone.
And again, if you read the torture memos in the light of hyper-technical legal discussions seizing on alleged ambiguities that aren’t really there, you’ll find the exact same thing. The torture memos are all about avoiding the obvious, completely well understood meanings of terms (both common and legal) in order to manufacture illusory ambiguities and then exploit them to get what the authors wanted. Ultimately the difference between rule-of-law and legalistic manipulation comes down to the fact that at some point you have to defer to the law or have the law changed rather than always bend and break the words of the law to your will.
With sufficient effort and a willingness to manufacture fake ambiguity, the words of any legal document can be broken into uselessness. But if you make that a regular feature of your system, people aren’t going to trust it.
Is there a legal defintion of “up”? No? Guess judges are free to rule that up is down, then. That’s what you’re saying, Phil.
Jack, I don’t think you’re in any position to be complaining about tendentious assumptions. And the assumption that neurological differences between men and women are minor is fairly dubious.
You don’t think that was a defense? I don’t think you understand your argument very well then.
OK, I’ve been back posting for all of a week, and you pull this rhetorical trick out again? I’m done with you forever, Sebastian. Please do not address me or quote me in future, as I shall not respond.
Try not to waste too much time mourning.
Brett: Is there a legal defintion of “up”? No? Guess judges are free to rule that up is down, then. That’s what you’re saying, Phil.
No, it’s not, but you believe whatever helps you sleep at night.
“I’ll move on to discussing things with people interested in defending their premises.”
Irony thy name is Phil.
Jack, I don’t think you’re in any position to be complaining about tendentious assumptions.
Oh? How so?
And the assumption that neurological differences between men and women are minor is fairly dubious.
We’re the same species, speak the same language, have the same intelligence as near as can be measured, same hopes, etc.
Of course, there are differences, they are just not anywhere near as important or explains as much as you seem to thinkg. The differences such as they are very hard to see underneath all of the tremendously influential social factors (and note that even many biological differences can be socially influenced).
For example, the differences between members of the same sex but from different cultures can easily be much greater than the differences between members of the same culture but of opposite sex. Even within the same culture and gender, differences of personality, brain chemistry, etc., between individuals can swamp any strictly gender-linked variation.
We know that these confounding factors exist, and are hugely important.
When you make a statement like “women are less interested in buying sex” the onus is on you to actually explain why it is you think that in this case this (supposed) preference cuts through all of the hundreds of layers of conscious and unconscious complexity in our brains, all the obvious acculturative factors, all of the obvious instititional factors, down to some kind of primal genetic instinct.
Today here in DC, Ward 8 council member Marion Barry came out in opposition to same-sex marriage at a rally organized by local ministers. He was absent for the 12-0 vote in favor of recognizing same-sex marriages from other jurisdictions, but says he would have voted no.
The bright side is that Congress now will have to decide between siding with the gays and siding with Marion Barry.
Hmm, not seeing confirmation about Barry. May be some sort of hoax.
We need to tell our stories of our experiences of oppression and discrimination as gay people so that people understand why the laws must change. Below is an ordinary story that probably is repeated every day in America.
From The Advocate October 9, 2007
Family Trauma
“You are in an antigay city and state.” Those were the words of the social worker at Miami’s Jackson Memorial Hospital as my partner, Lisa, lay dying just steps away in the trauma center, behind locked doors. He punched his code on the keyboard and walked away, leaving me standing in the waiting room with our children — Katie, David, and Danielle, ages 9 through 13. None of us could see her.
Less than 30 minutes earlier, we had been on an RFamily Vacations cruise ship set to sail to the Bahamas. For months, each of us had been dreaming of white sandy beaches and blue waters and spending some much needed vacation time together as a family.
Lisa and I met in 1989. We dated, settled down, built our lives together over many years. We supported each other through school and while we established our careers. We adopted our children when they were little. We had the perfect family life.
Lisa and the kids were on the top deck of the ship when she collapsed last February. They were playing basketball as the crew prepared the ship to depart. The kids managed to help her down to our stateroom, where I had been unpacking. As soon as they came through the door, I knew it was something serious. Lisa, who was healthy, could not talk or stand. I asked if she had hit her head, and she sternly replied no in sign language, which we had learned to communicate with the many language-delayed children we had fostered over the years. When medics loaded her into the gurney to transport her to the hospital, she signed, “I love you.” It was the last time we would see her alive.
***
They were legally married in Massachussets, this happened in Florida.
In my own short life, I remember one time my employer looked me in the eye and told me would pay be $9 / hour instead of $12 / hour because I was gay. “I have limited resources, I have to give the priority to families”. If I didn’t like it, they could do without a faggot around. It is still legal to pay gay people less for the same work in my state.
My experience in America has felt like living in a dictatorship. I am afraid all the time of what will happen next.
I am grateful for articles like this and they give me optimism for the future. I have been planning to leave the US because I don’t want to end up like that lady in Florida or something like that. But things might start to get better soon
Up to the minute: the Maine Legislature’s Judiciary Committee just voted to send the same-sex marriage bill out to the legislature:
Ought to pass — 11
Ought not to pass — 2
Ought to send out to referendum — 1
Non-voting representative of the Penobscot Nation — supports the bill.
🙂
There’s a long way to go and even if the bill passes we’re about 99% certain to end up having a people’s veto referendum anyhow.
One thing at a time.
In US usage, the term ‘marriage’ was not ambiguous as to the sex of the parties.
So you claim, yet you are unable to prove.
And once again, Sebastian, you keep trying to make light of torture by claiming it’s equivalent to marriage. Or possibly, you really think marriage is torture. Either way, it’s really, really creepy.
In US usage, the term ‘marriage’ was not ambiguous as to the sex of the parties.
Not that I need to pile on, but I think this is a silly statement.
Not least because of the history of recognition for same-sex relationships. At the time these laws were drafted, I agree that lawmakers probably had in mind marriage between “a man and a woman”.
Does this mean they really meant to exclude same-sex marriage? I don’t think so. Probably they didn’t think of it much at all – certainly not in connection with marriage. Same-sex relationships simply weren’t on the social radar.
Homosexuality, after all, was merely a mental illness. At best maybe a harmless quirk, like the funny way rich uncle Carl was always spending time with young men, although nobody talked about it.
That’s changed, obviously. Homosexuality is no longer considered a mental illness or an eccentricity. We understood that the love relationship between same-sex couples is for all intents and purposes just as valid as opposite-sex couples.
In other words, it’s not the legal definition of marriage that’s being changed. It’s something more fundamental: the social definition of what sorts of relationships are considered acceptable in the first place. And this change has for the most part already occurred – same-sex marriage is still mildly controversial (though growing less so by the day), but intrusion into the lives and bedrooms of consenting couples–of whatever sex–is now much more universally condemned. The battle over the social definition of a sexual relationship is basically over.
Now, this change is being dismissed, even by Publius, as somehow “political”, but I think it’s clearly more than that.
Regardless, the courts had almost nothing to do with the change. Decisions such as Iowa’s are merely belated recognition of its full implications – that where acceptable relationships go, marriage must follow.
(And if Sebastian can come up with a similarly turbulent history for concepts underlying words like ‘no need’ ‘various’ ‘because’ ‘everyone and ‘question-begging’, he can maybe have a point. I’m not seeing it now though.)
Do you really think that these differences (to the extent that they exist) are the result of inherent neurological differences between men and women? Given what we know of human culture, it seems far more likely that they’re the result of prejudices and attitudes inculcated in both men and women by society.
Jesurgislac, “And once again, Sebastian, you keep trying to make light of torture by claiming it’s equivalent to marriage. Or possibly, you really think marriage is torture. Either way, it’s really, really creepy.”
Nope. I’m not making light of torture at all. In fact it wouldn’t help my argument if I were taking torture lightly. I have to take it seriously for my argument to make sense. And I’m not making them equivalent in any way. I’m showing how people are willing to destroy plain meanings and the rule of law to do what they think is right. And I’m suggesting that shredding the rule of law in one case, makes it easier to shred in other cases. Which is ironic, because neither side would want to help the other.
Jack,
I don’t see how that helps you. They didn’t *mean* to exclude same-sex marriages because marriage didn’t have anything to do with same-sex. You don’t have to explictly exclude a category that you aren’t talking about. If I’m talking about buying a car, I don’t have to explicitly state that I’m not buying an airplane. Part of the definition of car excludes most versions of airplanes. Now if I want to change the legal definition of ‘car’ to mean what we would normally call ‘vehicle’ so that it includes airplanes and ships, I’m perfectly free to do so. In many contexts it might even make sense (say carbon emissions per weight or something). But that doesn’t mean that there was confusion about what ‘car’ used to mean. It doesn’t mean that ‘car’ was an inherently faulty or ambiguous concept. It means that I chose to change the definition.
There are lots and lots of potential human relationships. There are ‘friends’ and ‘lovers’ and ‘partners’ and ‘brothers’ and ‘sisters’ and ‘mothers’ and ‘cousins’ and ’employees’ and ‘husbands’ and ‘wives’ and ‘mentors’ and all sorts of other things.
‘Marriage’ is one of those relationships. Historically, in the US, one of the features of ‘marriage’ was that it was between a man and a woman. As you note, many people have decided that one of the most salient features of marriage is that it is between two people who love each other (in theory, though of course we’ve all seen other marriages). Many of us have decided that the ‘two people loving each other’ fact is more salient than that the people be of opposite sex.
That is great! I applaud this new definition. I agree that the ‘two people loving each other’ concept of marriage is WAY MORE IMPORTANT than the historical definition that those two people were of different sex. But that doesn’t mean that the definition of marriage always included that. Or that the definition of marriage was ambiguous and we somehow missed it.
No. We changed it. We want to make the definition fit better.
Great.
But don’t lie to people by pretending it was always there. They know it wasn’t always there. They aren’t idiots. Telling them they are idiots isn’t likely to help. And it breaks down the trust in the rule of law. Just be straight forward: “I think we should change the definition of marriage to include gay people because…” Have a political fight over it. But unless you’re willing to just wreck the political system over it, don’t pretend that it was there all along.
And for God’s sake don’t play the stupid “it wasn’t precisely defined enough” game unless you’re willing to have that played right back at you in areas that you cherish.
Be a proud progressive and say “the old definition doesn’t fit the modern world, so we think it should be changed”.
I don’t see how that helps you. They didn’t *mean* to exclude same-sex marriages because marriage didn’t have anything to do with same-sex. You don’t have to explictly exclude a category that you aren’t talking about. If I’m talking about buying a car, I don’t have to explicitly state that I’m not buying an airplane.
The first part is exactly my point. The part about cars and airplanes doesn’t make any sense.
If you want, it’s more analogous to a purchase, period. And it’d be absurd to argue that selling or purchasing a computer, say, was illegal because the law governing sales of durable goods was drafted in 1816, and obviously nobody had had computers in mind when they drafted it.
This is the way to look at the ‘definition’ of marriage. Imagine, for example, that some weird mutation caused 1 in 10 people to spontaneously develop an entirely novel system of sex organs, incompatible with the rest of humanity.
Do we need to draft an entirely new “marriage” statute to cover marriage between the new types of sexes? I would argue no.
Once you recognize that these people are still human beings, and the committed relationships they enter into with each other are essentially the same as everyone else’s, with no compelling state reason to discriminate against them, marriage follows.
What was lacking up until very recently for same-sex relationshops was not the last part, marriage, it was the first two parts. The last part is (in a just and rational world) automatic.
Sorry, italics fail. First paragraph is obviously Sebastian.
I’m showing how people are willing to destroy plain meanings and the rule of law to do what they think is right.
Do you really think that the lawyers who wrote the torture memos did so because they thought torture was right? Do you think that they wanted the US military to be able to legally torture prisoners in exactly the same way as George Takei wanted to marry Brad Altman? Do you think that George W. Bush and Dick Cheney thought that torturing prisoners was as desirable a goal in their lives as the freedom to marry was for Del Martin and Phyllis Lyon?
To claim that wanting to be able to marry your life partner involves the same kind of twisted reasoning as was required in arguing that making prisoners suffer intolerable pain was somehow “not torture” is truly disgusting, Sebastian. I can really barely respond to you, since if you claim you haven’t changed your admirable views deploring torture, that means you are somehow able to regard civil equality for yourself and other LGBT people as equivalent to torture in moral depravity – and that fills me with mingled horror, pain, pity and disgust so deep I need to walk away from the Internet for the night.
In the US, since 1967, marriage has been clearly and unambiguously defined as a civil right, necessary to the orderly pursuit of happiness. You should not loathe yourself or your sexual orientation so much that you think you are not entitled to share in the orderly pursuit of happiness.
Another related point against the “definition” of marriage is that those lawmakers back in 1650 or 1816 or whenever probably had a lot of things in mind when they thought marriage. Wives as property, for example.
A modern wedding presided over by some hippy with minister credentials printed off the internet, and where the bride is going to be the primary income earner and maybe literally wears pants to the ceremony, would blow their minds.
And yet nobody is arguing (seriously, at least) that any of those things would be valid reasons for the state to deny issuing a marriage license.
Jack, “Do we need to draft an entirely new “marriage” statute to cover marriage between the new types of sexes? I would argue no.”
No, all you need to do is put a little thing at the beginning saying “Marriage as below in section X.X shall include unions between any combination of men, women, Xtien, and Eriwwen.” Which is pretty much what I think we should do with gay marriage.
I’m don’t know why you think it would particularly blow their minds at all. Except for the downloading on the internet thing (where you have to explain the internet first) why would they worry? In various US jurisdictions especially in the expansionist West, people could be married by clerks, registrars, military officers, one of the parents, any clergy from any church or pseudo-church, the mayor, the general store owner, or any of a number of various people. And so far as I know, the people who can give a civil marriage is or is not limited by the indivdual states. And if they wanted to say that only the county clerk can civilly marry someone, they have every Constitutional right to do so.
Jesurgislac, “Do you really think that the lawyers who wrote the torture memos did so because they thought torture was right?”
I’m not sure I understand the question because the answer seems so obviously ‘yes’ to me. I think the lawyers who wrote the torture memos did so because they had deluded themselves into thinking that torture was necessary for the defense of the country. So they made the ‘tough’ decision to twist the law until it broke so that they could do the right thing.
“To claim that wanting to be able to marry your life partner involves the same kind of twisted reasoning as was required in arguing that making prisoners suffer intolerable pain was somehow “not torture” is truly disgusting, Sebastian.”
I’m not claiming that at all. I’m claiming that twisting the law to the breaking point because you want to marry your life partner is feeling justified in intentionally twisting the law in order to do what you think is right. Publius explicitly admits that in his original post. Lots of people have different ideas about what is ‘the right thing to do’. Some of them (and I suspect actually that it is LOTS of them–consider if you will the Democratic Party’s general unwillingness to tackle the torture issue at the time) think that torture can be a right decision in some circumstances.
If you continually undermine the rule of law for the things you think are right, you can’t really appeal to the rule of law with useful force when other people want to do what they think is right.
The law in Western society is a negotiated compromise among various people with fairly divergent views with the purpose of getting them to live together in relative peace. The rule of law is intended to get people to trust in the law and to follow it by letting them know what it is, and by giving it predictable and understandable methods to change. Much of our society is held together by the fact that most of the people will follow what they understand to be the law even if it doesn’t perfectly align with their perceived interests or exactly with their understanding of justice.
But I believe that is a relatively fragile trust. Undermine it repeatedly, and people are more willing to ignore the rule of law in favor of seeing things turn out the way they would personally prefer. This is great so long as the only people allowed to do so, are those who agree with you.
Unfortunately, you can’t guarantee that.
I’m don’t know why you think it would particularly blow their minds at all. Except for the downloading on the internet thing (where you have to explain the internet first) why would they worry? In various US jurisdictions especially in the expansionist West, people could be married by clerks, registrars, military officers, one of the parents, any clergy from any church or pseudo-church, the mayor, the general store owner, or any of a number of various people. And so far as I know, the people who can give a civil marriage is or is not limited by the indivdual states. And if they wanted to say that only the county clerk can civilly marry someone, they have every Constitutional right to do so.
The part about the minister was largely incidental – you’re ignoring the part about the pants. And the primary income earner. And probably the couple having “lived in sin” for a decade or two before getting married. And having had a couple of dozen previous sexual relationships – each. And maybe drafting elaborate pre-nups.
Now, I don’t mean to say that this was all previously unheard of, or that anybody who lived a century ago or more was a prude. Of course they weren’t. But the fact is that “traditional marriage” can be as helpfully analyzed as the transfer of a virginal bride as property as it can as a “union between a man and a woman”. Or probably a variety of other ways over the millenia.
And any way you slice it, the customs of dating, sex, and marriage as they are currently practiced have quite a large number of novel features over 100, 200, 300 years ago.
Yet, none of these novel and scandalous new features required any statutory redefinition of “marriage”. No legislatures needed to add clauses about how a woman didn’t have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn’t need to be about having children. The word “marriage” remained while a whole multitude of customs associated with it changed underneath it.
If any small-minded county clerk ever DID refuse on any of these grounds to recognize a marriage, I’m assuming the justice of the matter was settled relatively swiftly in court, without anyone claiming that the only proper way to resolve these matters was for the legislature to decide on it.
If you continually undermine the rule of law for the things you think are right, you can’t really appeal to the rule of law with useful force when other people want to do what they think is right.
Whether the rule of law is being undermined here is precisely the question. (That you are thus begging…)
Publius seems to be a little wishy-washy on the point, but I for one think the judiciary is exactly the appropriate place for deciding this sort of question, After all, the whole point is upholding the rule of law – and holding out equal protection for a class that has only belatedly been recognized.
I would almost go so far as to say that court decisions o this type are better than the legislative process, as I think the former helpfully affirms that, yes, this is what our founding documents said about fairness all along. (But I’ll settle for legislative victories when they’re quicker.)
Yet, none of these novel and scandalous new features required any statutory redefinition of “marriage”. No legislatures needed to add clauses about how a woman didn’t have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn’t need to be about having children. The word “marriage” remained while a whole multitude of customs associated with it changed underneath it.
I should add that one of the reasons they didn’t need to redefine anything to accommodate those things is because there isn’t any good reason for the state to be involved in any of it. Insofar as the state has any interest in sanctioning marriage at all (I think it’s kind of dubious, myself), that interest simply doesn’t offer any compelling reason to discriminate with the privilege between same-sex and opposite-sex couples.
The Iowa case affirmed exactly this point, in some detail.
“Yet, none of these novel and scandalous new features required any statutory redefinition of “marriage”. No legislatures needed to add clauses about how a woman didn’t have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn’t need to be about having children. The word “marriage” remained while a whole multitude of customs associated with it changed underneath it.”
Most of these changes happened before US common law came into being. And some of them most certainly did have statutory changes associated with them. (See the property rule changes regarding marriages in various states, and perhaps you might want to note that they are STILL different in different states).
“Yet, none of these novel and scandalous new features required any statutory redefinition of “marriage”. No legislatures needed to add clauses about how a woman didn’t have to be a virgin after all. Or that a dowry was unnecessary. Or that it was ok for a woman to wear pants at the ceremony. Or that marriage didn’t need to be about having children. The word “marriage” remained while a whole multitude of customs associated with it changed underneath it.”
Most of these changes happened before US common law came into being. And some of them most certainly did have statutory changes associated with them. (See the property rule changes regarding marriages in various states, and perhaps you might want to note that they are STILL different in different states).
The virgin thing had changed for the most part well before 1776. Rules on how you had to have disposed of previous marriages before you could have a new one are most certainly artifacts of explicit statute in states. Dowries haven’t been ‘necessary’ at any time in US history so far as I’m aware. Pants at the ceremony certainly would have been possible in the 1600s.
I actually think it would be tough to find non-statutory changes of any noticeable magnitude, and nothing even remotely approaching the man-woman question. For my contrary list of statutory things: the minimum age, the method of divorce, the need for blood tests, the amount of blood relatedness allowed, whether or not there is common law ‘live-together’ marriage, property allocation and disposition rules on death or divorce, and who can confirm the marriage from the point of view of the state are all changed by the statutes.
Also, despite what you say, the fact that the woman might be the major breadwinner/property owner is certainly contemplated at least as far back as the expansion to the West. Basically you seem forced to resort to trappings around the ceremony, and largely not even those.
“Of course they weren’t. But the fact is that “traditional marriage” can be as helpfully analyzed as the transfer of a virginal bride as property as it can as a “union between a man and a woman”.”
We’re back to car vs. plane. You are identifying the fact that cars come in various colors while I’m pointing out that they don’t fly. Even as far back as transfers of virginal brides as property, you’d be hard pressed to find the brides regularly be males married to males. The US drew from lots of traditions. But I’m unaware of the one with regular male to male marriages.
No, Sebastian, you’re pointing out that cars don’t fly and he’s pointing out cars don’t travel through time.
The difference between a property transaction between two men over one woman–or repeated transactions of this nature that create a polygynous household–and an egalitarian partnership of two people is a very big difference. The structure and power balance is totally different.
The difference between an equal partnership an an equal partnership, with the only *actual* difference being the gender of one of the partners, is a very small difference. The structure of the partnership is exactly the same.
Brown v. Board of Education is not precedent for anything that doesn’t fall within the 14th Amendment’s injunction against denying equal treatment under the law based on race, creed, color or country of origin
Maybe your copy of the Constitution specifically mentions those protected categories- but the standard issue copy does not. It certainly makes your argument easier if you’re allowed to edit the Constitution and make it appear as if this particular difference isn’t on the protected list.
Negative injunction laws are inherently discriminatory. Brothers and sisters can’t marry and people who want to get high can’t buy dope legally.
Only by using a definition of “discrimination” that renders the underlying argument meaningless. Laws that ‘discriminate’ against people who want to act in a certain way (eg get drunk in public, get high) are not qualitatively the same as laws that discriminate between categories of citizens based on who they are and allow actions by some (eg marrying who they want to marry) prohibited to others. Even if you can successfully use the word “discriminate” in both sentences.
So, when legal conservatives finally are able to overrule Roe, you don’t mind if we just go ahead and outlaw abortion outright, as opposed to sending the issue back to the States?
but
Now, do I and many other social conservatives want to amend the Constitution to outlaw all abortions. You bet we do.
and
My point to Publius btw was that under his theory conservatives could just bypass the amendment process after Roe is jettisoned, and argue that the Constitution actualy mandates that abortion be outlawed.
Oh, and I can make that argument fwiw.
So we should hold back now because otherwise you’ll trample our rights later, but you naturally intend to do that anyway because you think God told you to. Seems like not such a great bargain for us.
They used commonly understood words with commonly understood meanings. No one had to explicitly define marriage as between a man and a woman any more than you have to define the word ‘is’. That is part of the pretense.
Likewise, the original Constitution wasn’t written with women in mind; yet we feel comfortable generalizing from their terms to include other categories than those originally intended by the Founding Fathers. Rather than amending the Constitution to explain that “person” or “citizen” now includes women.
Similar to the manner in which we understand “freedom of the press” to apply to novel media. It’s not a pretence, it’s keeping rights, laws etc in contact with the evolution of society. Now, we could amend the Constitution every time we develop novel media, but it’s more effective (and safer) to understand the underlying principles and liberties, and recognize their extension into new areas.
while to call women oppressed in the US is an insult to all victims of real oppression
Right- I might have bronchitis, but calling me ill is an insult to the lady down the street with incurable pancreatic cancer. When I hear that sort of bizzaro-world logic, it makes me wonder about the underlying motive- here, clearly to deny me the use of the word “ill”- and if I can’t call myself ill, then there’s no way I can get medicine or go to a doctor, can I?
…all you need to do is put a little thing at the beginning saying “Marriage as below in section X.X shall include unions between any combination of men, women, Xtien, and Eriwwen.” Which is pretty much what I think we should do with gay marriage.
I’ll get to your other reply in a minute, but this part I find really strange.
Consider that when miscegenation finally became acceptable, it was not a matter of rewriting statutes to bizarrely and specifically allow that “marriage shall be between individuals of the white, yellow, black and red races or any combination thereof” or some such.
Instead, it was a matter of dropping or overruling anti-miscegenation clauses in their entirety.
What remained, in Virginia at least, was presumably the code more or less as it was before passage of the “Racial Integrity Act” in 1924: modulo unrelated revisions, everything except the stricken section says exactly the same thing as it did before. The only difference is entirely outside the text: now it’s commonly understood that “persons” includes people of different races.
Now, the structures of various state codes differ obviously, but I’m assuming most states are similar — marriage is simply not (any longer) specifically defined around race one way or the other. Race simply isn’t part of the question, because we don’t recognize any legitimate state interest in it.
And the same would happen in, e.g., Virginia with same sex marriage. If Virginia’s laws invalidating same sex marriage were to be struck down or repealed, what’s left would not be a code that bizarrely specifies in detail the allowed sexes of the parties.
What would be left would be the code as it existed before passage of the anti-same sex marriage and civil-union provisions. It would be simply silent on the matter of sex, and marriage would (again) simply be between “persons”, who otherwise meet the age, consent, etc. requirements.
Except it would then be commonly accepted that this included “persons” of the same sex.
Most of these changes happened before US common law came into being. And some of them most certainly did have statutory changes associated with them.
Perhaps. I probably overextended the argument there, and I must confess to ignorance of some of the particulars.
Note however that I’m not, indeed cannot, be talking about cultural underpinnings that were already specifically codified, or to codification of additional restrictions. Thus things like “minimum age, the method of divorce, the need for blood tests, the amount of blood relatedness,” etc. are not relevant.
I’m referring only to the unspoken assumptions made by all parties, the ones that were never codified, and thus able to change later without falling afoul of the letter of the law. I think it’s unarguable that, in general, lawmakers a century or two ago had a somewhat different outlook on things. What you’re left arguing about is the “magnitude” of those assumptions.
And that is, again, begging the question. What we’re asking is fundamentally whether, from the perspective of the state, the sex of spouses really is any more relevant these days than what you call ceremonial trappings.
LadyVetinari maybe got at it better: marriage has been gradually redefined from an inherently sexist and unequal power and property relationship, into something that is more like an (ostensibly) equal partnership.
In the process it’s gone from something that even gays and lesbians themselves may not have considered particularly interesting (when they were not too busy hiding, or being shunned and locked away, that is), to something that is every bit as useful to gay and lesbian couples as to heterosexual couples.
That transformation also means same-sex couples are every bit as ‘useful’ to the state as opposite sex ones.
The change has accumulated either culturally, or in legal changes unrelated to the question of the sex of spouses. And a similar change has occurred with the recognition of same-sex attraction and relationships.
And those changes are now simple facts. Not only do I think it’s appropriate for those facts to be recognized by a court, I think a fair court would be hard-pressed NOT to put two and two together and extend rights to same-sex couples.
I want to add that I fundamentally have some impatience with this sort of legalistic quibbling. I find it to be short-sighted and…miserly.
I think the spirit of the Constitution, and the concept of human rights is pretty intuitive, and I find it odd that people don’t see how these rights don’t extend automatically to new situations.
I think that if we were to establish meaningful communication and relations with dolphins, or extraterrestrials, or artificially intelligent robots, and determined that they had the ability to distinguish right from wrong, and to meaningfully consent to something, etc., then they would be for all intents and purposes “human”, and I would find endless debates about whether they could marry other humans or not fairly tiresome.
I would like to live in a world where, for example, if science somehow granted the male gender the ability to bear children, there would be little if any debate about whether or not protections like maternity leave extended to them. I would not find arguments that lawmakers had not originally envisioned men getting pregnant to be particularly compelling.
I still can’t respond to Sebastian’s jitterings about how his freedom to marry is just like torture, but I can offer a link to the man who is apparently the go-to guy for Sebastian to know what he should think: “Why should the government be forbidden from making a moral judgment about gay marriage or abortion but compelled to make a moral judgment about the treatment of terrorists plotting to murder Americans citizens?” Reading Michael Goldfarb (something I try not to do, frankly) is enough to make me feel that all lesbian and gay people currently supporting the Republican party ought to quit for their own mental health.
“I think the spirit of the Constitution, and the concept of human rights is pretty intuitive, and I find it odd that people don’t see how these rights don’t extend automatically to new situations.”
How about embracing the spirit of Article V sometime, and proposing an amendment the next time you want a change?
Brett: How about embracing the spirit of Article V sometime, and proposing an amendment the next time you want a change?
Why not embrace the spirits of Plato, Aristotle, Madison, Tocqueville, and John Stuart Mill, and reject the tyranny of the majority that allows a minority to be treated with any injustice the majority pleases?
It seems odd, Brett, that someone who claimed to value freedom over democracy is now arguing that democracy must be valued over equality, justice, and, well… freedom.
Sorry for the confusion about Marion Barry’s reversal on same-sex marriage. My initial report was correct. Here’s the video of his performance yesterday.
How about embracing the spirit of Article V sometime, and proposing an amendment the next time you want a change?
Because I think it’s already covered, and there is no change.
Kind of like how, incredibly, we didn’t need new amendments to extend First Amendment protections to television, or Scientology.
“Because I think it’s already covered, and there is no change.”
Yup, that’s your story, and you’re sticking to it, no matter how many changes get made.
Maybe that’s just the way his brain is wired genetically.
Yup, that’s your story, and you’re sticking to it, no matter how many changes get made.
Huh? What are you talking about?
“Likewise, the original Constitution wasn’t written with women in mind; yet we feel comfortable generalizing from their terms to include other categories than those originally intended by the Founding Fathers. Rather than amending the Constitution to explain that “person” or “citizen” now includes women.”
What precisely do you have in mind? Women were always citizens and persons in the Constitution. Are you arguing that there was some mythical time where they were not protected by jury trial right for example? That women could be unreasonably searched without a warrant? That a woman used to be able to be forced to incriminate herself because she wasn’t a person under the 5th amendment?
And as for the vote, there was an amendment, right? In fact the text of the Nineteenth Amendment directly contradicts your interpretation: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.”
The vote for women is a classic case where we actually used the amendment process rather than pretending that it was there all along.
Yup, that’s your story, and you’re sticking to it, no matter how many changes get made.
Kind of like how your story is that the Constitution clearly forbade anti-miscegenation laws for about a century before everyone realized it. That is, however many changes are made, *today’s* version of what you’d like it to mean is what it has always meant, eternally.
Both sides allow for change; only one side has the courage to admit it.
25 years from now, Ill be arguing with Brett’s kids- they will explain how the Constitution obvious protects gay rights and always has, but clearly “person” was not meant to encompass genetically-modified dolphins with human-level intelligence. 50 years from now, Ill be arguing with Brett’s grandkids about how the Constitution obviously protects the rights of all biological sentients and always has, but clearly “person” was not meant to encompass self-aware computers.
Heck, blacks were always people under the Constitution, and even the 3/5ths clause describes slaves as “other persons”. And the Dred Scott ruling that blacks couldn’t be citizens had no constitutional basis at all, as well as being radically unhistorical. (As the dissent in the case made abundently clear.)
The Constitution was color-blind, the institution of slavery was not, and when the two finally came to blows, it was the Constitution that lost. But that doesn’t change the fact that the Constitution never set out a racial test for citizenship, let alone personhood.
“25 years from now, Ill be arguing with Brett’s kids- they will explain how the Constitution obvious protects gay rights and always has, but clearly “person” was not meant to encompass genetically-modified dolphins with human-level intelligence.”
I certainly hope I’ll have taught them better than that, I’m a firm believer in the rights of anything that can pass a Turing test.
What precisely do you have in mind? Women were always citizens and persons in the Constitution. Are you arguing that there was some mythical time where they were not protected by jury trial right for example? That women could be unreasonably searched without a warrant? That a woman used to be able to be forced to incriminate herself because she wasn’t a person under the 5th amendment?
Likewise, the 14th Amendment states “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
So, is it your contention that gays and lesbians aren’t people?
As for women, I highly doubt that the founders envisioned a woman as a senator, for example. Yet Article 1, Sec 3 only mentions “persons” and specifies requirements for age, citizenship and residency.
Is it your contention that Rebecca Felton or Hattie Caraway were illegal because there was no amendment specifically allowing senators to be female?
The Constitution was color-blind, the institution of slavery was not, and when the two finally came to blows, it was the Constitution that lost. But that doesn’t change the fact that the Constitution never set out a racial test for citizenship, let alone personhood.
Yet it does set out a test for sexual orientation?
I certainly hope I’ll have taught them better than that, I’m a firm believer in the rights of anything that can pass a Turing test.
Gays and lesbians can’t pass Turing tests?
I sure that isn’t your view – but what is your reasoning exactly?
And as for the vote, there was an amendment, right? In fact the text of the Nineteenth Amendment directly contradicts your interpretation: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.”
Not on point- if we passed an amendment today allowing gay marriage, that wouldn’t retroactively mean that “marriage” always included gay marriage in older passages in the Constitution.
The vote for women is a classic case where we actually used the amendment process rather than pretending that it was there all along.
I don’t recall anyone arguing that a gay marriage amendment would be bad or wrong. If there were an amendment specifically prohibiting the executive from setting aside laws in wartime, that would not mean that it was obviously permitted before that amendment was added.
“Likewise, the 14th Amendment states “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
So, is it your contention that gays and lesbians aren’t people?”
Nope. And?
I certainly hope I’ll have taught them better than that, I’m a firm believer in the rights of anything that can pass a Turing test.
As an aside, I hope you’re actually somewhat more expansive than this. After all, a Turing test is essentially measuring something’s ability to mimic a human. But I think that’s probably an excessively restrictive standard for personhood.
Possibly it’s a moot point, but I think one could imagine that hyper-intelligent dolphins, or extraterrestrials, or certain classes of artificial intelligence might have thought processes that were NOT recognizably human, but I don’t see why you’d deny rights to them on that basis.
You have to boil down personhood a little further, I think maybe all the way down to very basic things like responsibility and agency.
What you’re missing here, (Though that might not be the right term for somebody who fails to hit a target they’re trying to miss.) Jack, is the rather crucial distinction between who has rights, and what those rights are.
Gays and lesbians have all the rights straights do; We straights can’t marry somebody of the same gender, either.
“Not on point- if we passed an amendment today allowing gay marriage, that wouldn’t retroactively mean that “marriage” always included gay marriage in older passages in the Constitution.”
Ok maybe I don’t understand what would be on point. You raised women in the Constitution. You made the assertion that they didn’t count as persons or citizens at some point in the Constitution, and that at some other point they became citizens and persons in the Constitution without an amendment.
I pointed out that they had always been persons and citizens, and that so far as their other legal status (voting) we had an amendment on the issue to grant them the right to vote.
I’m not sure what point I’m not on. Women were persons and citizens at all times under the Constitution, so using them as an example of how the Constitution evolved without amendment seems wrong.
Gays and lesbians have all the rights straights do; We straights can’t marry somebody of the same gender, either.
Ah. I saw that earlier, and assumed somebody else had taken care of it.
First of all, I imagine you could get around lots of equal protection issues if you just rephrase things to get around the thorny point. For example, what’s wrong with a law that says everyone can only marry a person of the same race? The same for everyone, right?
A deliberately obtuse reading of “equal” doesn’t actually go very far as an argument. The law isn’t (entirely) stupid.
In this case the ability to marry someone of the opposite sex very plainly DOESN’T confer the same rights and benefits to homosexual individuals, and the court actually is capable of recognizing that fact.
Take a look at the Iowa Supreme Court decision around page 30 for a more in depth discussion.
Gays and lesbians have all the rights straights do; We straights can’t marry somebody of the same gender, either.
Prior to Loving, blacks had all the rights whites did; whites couldn’t marry outside their race, and neither could blacks.
That make sense to you?
“First of all, I imagine you could get around lots of equal protection issues if you just rephrase things to get around the thorny point. For example, what’s wrong with a law that says everyone can only marry a person of the same race? The same for everyone, right?”
The flip side is also true. Nearly all laws are based on distinctions between groups. Nearly any law can be struck down with a sufficiently strong attention to ‘equal’ in the equal protection clause.
“A deliberately obtuse reading of “equal” doesn’t actually go very far as an argument. The law isn’t (entirely) stupid.”
Heh. Considering the argument we just had an extend discussion over deliberately obtuse readings of ‘marriage’ this is supremely ironic.
What precisely do you have in mind? Women were always citizens and persons in the Constitution. Are you arguing that there was some mythical time where they were not protected by jury trial right for example? That women could be unreasonably searched without a warrant?
I am arguing precisely that. Post-Revolution, men were still considered heads of household under common law, and had wide discretion in controlling their dependants (including the use of violence). Consider the Married Women’s Property Act of *1848* in NY State:
Before married women’s property acts were passed, upon marriage a woman lost any right to control property that was hers prior to the marriage, nor did she have rights to acquire any property during marriage. A married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit.
I would say that is inconsistent with nor shall any person…be deprived of life, liberty, or property, without due process of law
Another specific example: in most cases, women did not serve on juries, even after the 19th amendment was passed. Yet we recognize today that this violates a fundamental right, both for the prospective juror (whose views become excluded from the judicial system) and the defendant or plaintiff/victim (when gender may predispose a juror to be sympathetic to one side or the other).
Nope. And?
If not, I’m just not sure I understand what your overall reasoning is.
The flip side is also true. Nearly all laws are based on distinctions between groups. Nearly any law can be struck down with a sufficiently strong attention to ‘equal’ in the equal protection clause.
Which is why there’s a lot of jurisprudence about “similarly situated” and so forth, and why we actually have intelligent human judges deciding this stuff, not adding machines.
But I’m hard pressed to imagine by what argument you can convincingly claim homosexual and heterosexual couples are not similarly situated with regard to marriage, for example.
Yes, I think it would be fair to say that the Turing test is underinclusive of beings which should be accorded rights, and any non-human intelligence that could pass it would probably be more clever than a human. But extensions beyond it would be a rather complex matter to determine. (And in some cases, we’d be worrying about what they would determine regarding us.) So you may take it that I’m using “Turing test” as shorthand.
I expect establishing this is going to be THE major civil rights battle of the latter 21st century, as AIs without rights would be a very marketable commodity.
Heh. Considering the argument we just had an extend discussion over deliberately obtuse readings of ‘marriage’ this is supremely ironic.
In exactly what way was I reading ‘marriage’ obtusely? How is it obtuse to recognize that the institution has evolved and that the word likely had different connotations for earlier lawmakers?
“I am arguing precisely that. Post-Revolution, men were still considered heads of household under common law, and had wide discretion in controlling their dependants (including the use of violence). Consider the Married Women’s Property Act of *1848* in NY State:
Before married women’s property acts were passed, upon marriage a woman lost any right to control property that was hers prior to the marriage, nor did she have rights to acquire any property during marriage. A married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit.
I would say that is inconsistent with nor shall any person…be deprived of life, liberty, or property, without due process of law”
Which were all state property laws. Which as you note were corrected by changes to… the state property laws. As for the last sentence, I had no idea you were a substantive due process kind of guy. I thought that was mostly considered a conservative thing.
Actually this is all much more relevant than I initially realized. You are suddenly talking about marriage statutes and marital property. But without the implicit assumption of a man and a woman in marriage, who would get to be “head of the household” under those laws?
It sounds to me like there may have been an understanding that marriage was between men and women.
Again, I’m happy to change that understanding. I’m just don’t think it is legally legitimate to pretend that it isn’t a change.
“How is it obtuse to recognize that the institution has evolved and that the word likely had different connotations for earlier lawmakers?”
I was speaking to those who claimed that marriage wasn’t sufficiently precise as to have EVER excluded same-sex marriage. See top of thread.
You claim the institution has evolved, yet most of the times when put to the legislature it turns out that it hasn’t. So you have to rely on friendly judges and tortured readings of the history of marriage statutes. Which, I have suggested above, is problematic unless you are sure that the judicial system can only be held by progressives who agree with you all the time. If not, you have degraded the mechanisms for the rule of law to make it easier to dismantle the protections you like.
I was speaking to those who claimed that marriage wasn’t sufficiently precise as to have EVER excluded same-sex marriage. See top of thread.
I think the problem here is that the law is an organic creation that can’t be separated from it’s social context.
Same-sex marriage in 1801 wasn’t illegal, because there wasn’t a law against it. What it was was inconceivable. That’s different.
And the fact is that when same-sex marriage IS legal, it’ll be primarily a matter of striking or repealing various laws specifically and recently passed to outlaw it. Returning those statutes to a form remarkably like they were in 1801 (modulo unrelated changes that occurred in the interval, obviously).
I’m aware that the existence two identical laws with two plainly different meanings causes all kinds of existential semantic concern for you, but I don’t actually think it’s that big a deal, and I think it’s unlikely to result in a slippery slope where judges start ruling that ‘ice cream’ means ‘elephants’.
You claim the institution has evolved, yet most of the times when put to the legislature it turns out that it hasn’t.
I’m actually claiming that TWO things have evolved:
1. Our understanding of homosexuality- It is no longer scientifically considered a mental illness or a perversion; homosexual relationships are widely tolerated, if not accepted; intrusions of the state into the bedroom are even more widely condemned, and are either repealed, struck down, or unenforced; we have evidence that children raised in homes with same-sex parents turn out just as well as anyone else, etc., etc.
2. The institution of marriage, which now means something approaching an equal partnership, for purposes of financial and emotional comfort. (Many of those changes ARE enshrined in the law.)
You put the two together, and out pops same-sex marriage.
And I’m not claiming this evolution is universal. Far from it. But the opposition, while vocal and still somewhat numerous, is not credible. The objections are spurious or, at best, thinly veiled religious pleas.
So sure, same-sex marriage opponents can vote, and even command slim majorities. But they do NOT have any substantive arguments to make that a fair judge would be able to credit.
And this is, as far as I’m concerned, the whole reason we have courts and constitutional government in the first place. If we’re not allowed to protect civil rights against backward majorities, what’s the point?
“And this is, as far as I’m concerned, the whole reason we have courts and constitutional government in the first place. If we’re not allowed to protect civil rights against backward majorities, what’s the point?”
You can. But not for everything that the majority might want to do. You can only protect against things in the Constitution.
“I’m aware that the existence two identical laws with two plainly different meanings causes all kinds of existential semantic concern for you, but I don’t actually think it’s that big a deal, and I think it’s unlikely to result in a slippery slope where judges start ruling that ‘ice cream’ means ‘elephants’.”
Or marriage I suppose. Or that torture isn’t?
Or, in short, this evolution goes in stages. And there’s obviously a stage where it defies logic to continue to credit the old arguments about why the change is evil, but where lots of people still have a big squick factor that prevents them from recognizing it.
That’s the stage where you need the courts to step in.
You can. But not for everything that the majority might want to do. You can only protect against things in the Constitution.
And equal protection is in the Constitution. So…?
And you haven’t responded to my point about equal protection yet…
Which were all state property laws. Which as you note were corrected by changes to… the state property laws.
The jury trial point is not a property law issue, and it speaks directly to a civil right recognized in the Bill of Rights. One that treats “peers” as necessarily (white) males, according to the practice of the time.
As for the last sentence, I had no idea you were a substantive due process kind of guy. I thought that was mostly considered a conservative thing.
From wikipedia, if it’s a conservative thing maybe some more conservatives should sign on with it:
Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a “judicial usurpation” or an “oxymoron.”
Actually this is all much more relevant than I initially realized. You are suddenly talking about marriage statutes and marital property. But without the implicit assumption of a man and a woman in marriage, who would get to be “head of the household” under those laws?
Sure, Im not disputing that, just as the assumption that a jury would be composed of males was implicit- at least, according to the practices of the time. But the understanding of the freedoms encoded in the Constitution evolve- have to evolve- in order to keep up with social change. As I was pointing out, in 1790 a man might get a trial by a jury of his peers (if he were white), but a woman almost certainly would not. We understand now that this is unjust, and that we need to adjust our understanding of the word “peers” beyond that recognized by the Founding Fathers. We don’t need to amend the Constitution to do this, we just need to broaden our definitions to meet society as currently constituted.
Alternatively, we can pretend as Brett does that the Founders actually meant this, but no one realized it until many generations had passed.
Sebastian: Or marriage I suppose. Or that torture isn’t?
Stop comparing marriage to torture. It trivialises torture – which you’ve claimed you don’t want – and makes you sound like an embarassingly-self-hating gay man, which you may well want, if you seek advancement in the Republican Party. But I suspect for that you’d need a proper closet.
And you haven’t responded to my point about equal protection yet…
I probably missed it. Which comment?
Or marriage I suppose. Or that torture isn’t?
I don’t get the torture connection at all. The conceit seems to be that the rule of law is somehow broken in both cases, maybe in the same way somehow, but I don’t see how.
If the rule of law is really being broken in the marriage case, than count me against it. But that seems to be begging the question again. The argument looks good to me, every bit as good as the torture memo arguments look twisted and lame.
“I don’t get the torture connection at all. The conceit seems to be that the rule of law is somehow broken in both cases, maybe in the same way somehow, but I don’t see how.”
The connection isn’t between the practices. I’m making no parallel whatsoever between the practice of torture and the practice of gay marriage. (Jesurgislac please take note). The connection is in the perversion of the rule of law to get what you think is right. This is explicitly seen in the initial post by publius. He admits that his reading of the law can’t get to judicial imposed gay marriage. He then says that he is ok with doing it anyway.
That legalistic practice, is contrary to the rule of law. It gets pseudo-justified by people who then play hyper-technical games with definitions in order to get their way—see for example Phil’s assertion, echoed by others on the thread, that the lack of a specific call out against gay marriage means that there was somehow an ambiguity about the term ‘marriage’. In this, he shares a justification technique with the authors of the torture memos—he is willing to twist the laws and plain meanings of things until they break and then can be used as he wants.
The torture connection also is interesting when we look at your justification, which seems to be that while the majority hasn’t quite gotten there yet, the old rules don’t apply. Considering that approximately the same number of people approve of gay marriage as approve of torture cite (which is to say just under half), I would query how that fits into your analysis without appealing to your personal judgment that A is right, B is wrong. I would assume that the initial pass might appeal to civil rights as opposed to security, which is a balance that many people are probably willing to strike differently than you would.
And again, the parallel is in the method used to get what you think is right or wise, not to the rightness of the underlying practice. Torture is wrong and bad and we shouldn’t do it. Gay marriage would be great and wonderful, and we should have it. But I’m not willing to undermine the rule of law to get it, especially when it appears that in the next decade or so it can be gotten through proper channels without breaking the rule of law.
Oh and my point on equal protection is that almost all government rules involve doing something for one group that you don’t do for another. For various expansive interpretations of equal you can pretty much have an excellent argument for getting rid of any law you don’t happen to like.
see for example Phil’s assertion, echoed by others on the thread, that the lack of a specific call out against gay marriage means that there was somehow an ambiguity about the term ‘marriage’. In this, he shares a justification technique with the authors of the torture memos—he is willing to twist the laws and plain meanings of things until they break and then can be used as he wants.
I’m pretty certain I asked you politely to not quote me or address me, Sebastian; but if you can’t restrain yourself, at least behave like a big boy and try to refrain from ascribing motivations to me (e.g., he is willing to twist the laws and plain meanings of things until they break and then can be used as he wants) that a) you have no way of knowing, b) rely on mindreading to an almost absurd degree, and c) are an awfully long leap from a question I asked concerning which state’s constitutions actually defined marriage in the first place.
Absent that, quit complaining when Jesurgislac does the same to you. And have fun waiting a decade or so to be equal to us straights. We’ll be waiting for you on the other side.
I suggest that Sebastian is only claiming to be gay to avoid a charge of homophobia. Because his lack of reasoning on this issue does not flow from living as a gay person in this country. Or else they tortured him in some ex-gay re-education camp until he was so miserable that now he can’t stand to see other gay people living happily
As for the last sentence, I had no idea you were a substantive due process kind of guy.
“Substantive due process” is used to prevent the state from passing laws that infringe unacceptably on liberty; these laws have historically ranged from freedom of contract (Lochner) to freedom to engage in consensual sodomy (Lawrence v. Texas). It involves finding (or, some would argue, creating) rights implied in the Constitution.
The Married Women’s Property Act doesn’t take away “substantive due process.” It takes away literal, procedural due process: literally, the woman’s property and liberty can be taken away without ‘process’ of any kind under this law.
So no, women didn’t have due process rights.
There are three main problems with Sebastian’s “‘perversion’ of the rule of law is THE SAME, whether marriage or torture” argument.
The first is that allowing expansive definitions of the government’s right to infringe individual citizen’s liberties is miles apart from allowing expansive definition of those liberties. The political effects are vastly different. The political motivations of the people who want these two different things are vastly different. The political process by which they happen is also vastly different: courts openly deciding that it is not compatible to deny gay marriage with our understanding of the state or federal constitution (which, yes, evolves) is hardly the same as sneaky back-door torture memos. The legal and historical precedents for both are vastly different. So there is no reason to think that allowing creative legal interpretations of one will somehow lead to creative legal interpretations of the other.
The second is that gay marriage doesn’t require creative legal interpretations. Certainly no more creative than Brown v. Board of Education, and civilization didn’t end after that. No citizen shall be denied equal protection of the laws. That includes marriage laws. It’s fairly straightforward. And don’t give me that silly ‘black people…oops, I mean gays…have the right to marry people of their own race…oops, I mean of the opposite sex…the same as white people…oops, I mean straights’ argument. Couples are being denied the right to have their committed partnerships recognized and given the same legal benefits as other couples, on the sole basis that they’re of the same gender. It’s the state’s burden to show that this discrimination is rational. Or even, since this is actually a form of gender discrimination as men don’t have the equal right to marry men, to show that this discrimination substantially serves a legitimate state purpose. The government can’t do that.
But the real problem with your argument, Sebastian, is that nobody tortures because they think the law allows it. They torture because they like torture. And governments torture because it’s what hyper-powerful entities do, and they can always–always–come up with some fake reason to do it. So the idea that legal reasoning about gay marriage would have any effect at all on what governments do about torture is, to say the least, far-fetched.
Oh and my point on equal protection is that almost all government rules involve doing something for one group that you don’t do for another.
And? This is no more an argument against constitutionally protected gay marriage than it is against Brown, or Loving.
Like it or not, legal reasoning isn’t some sort of math problem that’s done without reference to policy or politics. A lot of government rules that technically treat people unequally aren’t challenged, or if they are challenged are upheld, because the judges find the government’s rationale for those laws to be well-supported by facts and compatible with the values of liberty and equality. Banning gay marriage isn’t either of these things.
Sebastian: I’m making no parallel whatsoever between the practice of torture and the practice of gay marriage.
Indeed you are, and as I noted earlier in the thread, I know where you got this from. The social conservative meme of dragging up “torture” and “gay marriage” in the same breath are an attempt to throw the two together as if they were same thing.
You may think that your fellow Republicans will show you more respect if you mouth these kind of attacks on your own civil rights – your own sexual orientation – but is being “respected” as a sensible gay man – the kind who wants full equality only when the nice straight people are willing to let him have it, the kind who won’t cause any trouble if you let him into the straight boys’ club – really, really worth it?
Well, for you, evidently, it is. But it’s a devil’s bargain.
as if they were same thing.
…same kind of thing. Equally morally wrong. (Abortion usually gets thrown in there as well.) As if the moral decision “I will not commit torture” had any possible relationship to “I will work to prevent women having access to safe legal abortion” or “I will protest legal equality for same-sex couples”. Except, of course, that there seems to be an enormous overlap of sets: the same people who think torture’s not so bad when the US does it, are often the same people who think abortion should be illegal, and who think same-sex couples shouldn’t be allowed to marry. That’s the company you’re keeping, Sebastian…
“Or, in short, this evolution goes in stages. And there’s obviously a stage where it defies logic to continue to credit the old arguments about why the change is evil, but where lots of people still have a big squick factor that prevents them from recognizing it.
That’s the stage where you need the courts to step in.”
Ok, I’m going to comment on that, then I’m leaving the thread alone.
The case I’d make is not that this change is evil. It’s that this change is a change. And that we’ve got article V for changes.
This is not the point where the courts step in. It’s the point where Congress drafts an amendment.
In the case of Brown, Congress had drafted the amendment nearly 100 years prior, the Court had stepped in, and royally mucked things up. The Court had done exactly what you advocate back in the Slaughterhouse decisions.
They just did it for the other side.
In Brown, they repaired a little of the damage. And did a half-assed job of it, too. That’s all.
You want the courts to be “stepping in” all the time? Better anticipate that a lot of the time they’ll be stepping in for the other guys.
Now, you want to know what I really think about ‘gay’ ‘marriage’?
I think it’s perfectly understandable, admirable even, that homosexuals would want for themselves an institution analogous to marriage.
Problem is, the word’s already taken. So make up another, already!
You know what? I’m tired of getting funny looks if I’m building a camp fire, and ask for a fagot. It annoys me that if I mention I’m in a gay mood, people assume I want to make out with another guy. And I understand why the inhabitants of the isle of Lesbos are pissed.
Homosexuals have been going through the language like termites in the lumber yard, leaving a trail of crumbling words, impoverishing the language.
Homosexuals are oppressing Brett because they are reducing the vocabulary he can use. Cry me a river.
Nah, I wouldn’t call that oppression, it just annoys me.
You want lifetime commitment? Sharing joys and burdens? Great.
You want to confiscate another word, and leave it hollow? Not so great.
Why would any straight want to see what’s been done to every other word homosexuals laid a stake to, done to marriage?
You get to take the word “marriage”, and do to it what you’ve done to other words, and twenty years from now, married straights will have to find some other way to describe their status, in order to avoid people assuming their mates are of the same gender. Homosexuals do no, historically speaking, share words. They take them, hollow them out, and then when they’ve squeezed out the last of the positive connotations, drop them and seize another.
Don’t want that happening to “marriage”.
I’m all in favor of gay marriage, without the quotes. People should be carefree and lighthearted at their marriage. But fire up one of those word generators car companies use, and come up with a new word for this new institution you want. Take your victory, if you must, but leave us the freaking word!
What do you mean “us,” paleface? I’ve been married to my wife for nearly 20 years now, and I think your two posts directly above are just about the stupidest thing I’ve ever seen from you, which is an astonishingly high hurdle to clear.
Why would any straight want to see what’s been done to every other word homosexuals laid a stake to, done to marriage?
Because we’re not all pathetic bigots?
You may also want to reflect on the facts that, far from homosexuals “going through the language like termites” and “[laying] a stake to” the language:
1. The word “gay” as a synonym for carefree, uninhibited sexuality and lifestyle predates its synonymity with “homoxexual” by some 300 years, and the fact that it fell out of usage in its heterosexual connotations is hardly the fault of gays and lesbians. It’s because “gay” came to be also synonymous with “libertine” and “disreputable” and was therefore seen as a bad thing to be by straight people.
2. “Queer” was used as a pejorative by straights against from the early 1900s until, what, the 1950s? Blaming gay people for the fact that you can’t use the word in its original, nonsexual connotation anymore is ridiculous.
3. Similarly with “faggot,” which, again, was used as a pejorative by straights to denigrate gays from its inception up until probably the last 30 years.
So, yeah, you might want to reflect on those facts, although I’ve never seen you reflect on facts before, so I’ll temper my expectations.
Or, you can continue to blame homosexuals for taking words that were used to belittle and offend them for a century or three and reclaiming them for positive use. I’ve never, after all, seen you pass up an opportunity to blame the victim.
Next up, Brett will bemoan the fact that he can’t use “negro” to refer to things that are black anymore.
I mean, my head is seriously hurting at the idea that Brett thinks that homosexuals conspiratorially decided to call themselves “gay” and then, after a time, decided collectively, “Oh, hell, now everyone’s doing it. Let’s call ourselves ‘faggots’ now!”
Followed by Brett, upon seeing the press release from the National Council on Homosexual Collective Names, saying, “Well now what the hell am I supposed to call my firewood? Curse you, homosexuals!”
As with so many things in life, The Simpsons covered this best:
Yeah, didn’t expect you to understand. A master of sarcasm I’m not.
Is it a rather trivial objection? Exactly! I fully expect to find it annoying, in a couple decades, when I have to refer to our marriage as “a committed heterosexual relationship” in order to keep people from assuming I’m shacked up with another guy. I’ll hold a little wake for another dead word. Then I’ll move on.
The point here is that my objections to homosexuals ‘marrying’ are pretty minor. It really IS all about how you get it done, in my book.
And I’m tired of people who assume that, if you object to getting something done the wrong way, you must think it’s evil. You know what? Some of us care about means as well as ends. Because you legitimate the wrong means, they get used for the wrong ends, too.
You’re winning in the legislatures now. Is it too much to ask that you stop trying to steal your victories in the courts?
Sebastian-
Pretty much what LadyVetinari said.
I just don’t agree, with you or Publius, that an equal protection ruling for same-sex marriage requires any stretching of logic.
If it’s true that there’s precedent that makes it a stretch, frankly that precedent could do with some rewriting. Because what use is an equal protection clause if it’s unusable for giving equal protection to people who clearly need some equal protection?
I’ll be happy to look more closely if someone actually wants to go through, say, the Iowa decision and point out which arguments or citations are particularly iffy. (The Iowa case was about the Iowa constitution, of course, but AFAICT it used pretty generic equal protection reasoning.)
I’ll also say that beyond just this case, I reject the idea in general that we can or should defend against bad judges and bad rulings by avoiding the courts on our issues.
If there are judges out there that are going to rule in favor of torture, they’re going to find a way – precedent and/or adopting a particular legal philosophy ourselves is a poor weapon against them. And in the meantime, our issues won’t be heard.
No, ultimately, the only defense is just try to guard against appointing bad judges.
Yeah, the problem is when you define “bad judges” as “Judges who will impose somebody else’s agenda”, rather than “judges who impose agendas instead of just judging.” Because it makes the courts in to what legislatures are supposed to be, and we’ve already got legislatures.
Yeah, the problem is when you define “bad judges” as “Judges who will impose somebody else’s agenda”, rather than “judges who impose agendas instead of just judging.”
What makes you think I’m defining it that way?
I think a decision in favor of torture would be bad on a whole lot of levels, many of them having to do with it being against the law, Constitutional and statutory.
I guess you can call that an “agenda” if you like, but it doesn’t mean all agendas are created equal.
“I suggest that Sebastian is only claiming to be gay to avoid a charge of homophobia. Because his lack of reasoning on this issue does not flow from living as a gay person in this country. Or else they tortured him in some ex-gay re-education camp until he was so miserable that now he can’t stand to see other gay people living happily”
I wish you had told that to the gay bashers who chased me down the streets in Hillcrest when I was coming home from a bar about ten years ago. I would have felt much safer.
A commitment to the rule of law sometimes means that you don’t get exactly what you want when you want it. But it has other benefits.
As for seeing other gay people living happily, I love it. I get teary eyed at every marriage at commitment ceremony, and one of my favorite things is hearing couples who have been in love with each other a long time talk about their history together.
You know where I got this from? What does that even mean? Is there some Rush talking point on it?
The point I’m making is one of the same points I’ve been making for the entire history of this blog: that it isn’t legitimate to abandon the proper political process just because you think you are right on the merits. Pretty much everyone thinks they are right on the merits, and the whole point of the political process is to let people hash that out. Trying to avoid the process just because you think you are right, isn’t the rule of law. The reason the rule of law exists is to legitimate the decision-making process. The reason minority protections continue in rule-of-law states is because the majority buys into the overall rule-making system. Undermining the rule of law hurts the trust in the system, and undermines the ultimate effectiveness of minority protections by causing the majority to think the the system’s decision making process isn’t worth it. I have always argued this, and I’m pretty sure that Rush never has.
Huh? I’m pretty much done with the Republican party as it is currently constituted, and at the moment I’m not in the mood to try to reconstitute it into something else either. And furthermore there aren’t many Republicans around here anyway. So I have no idea why you think this is better than actually engaging my argument.
First it isn’t the company I keep. I support gay marriage. I just don’t support illegitimate means to get everything I want. Would you support killing millions of children in Africa in a trade to get gay marriage legalized? Of course not, because you value things other than gay marriage. One of the things that I value, and that I think other people should see value in, is the rule of law. One of the reasons I value it is because I think that minority protections are safer when there is a wide-spread respect for the rule of law. Second, you are confusing means and ends constantly in this conversation. And in doing so you are illustrating exactly what I mean about the torture memos.
Contra to what you and Lady Vetinari think, most people do things because they think they are right. And the argument for why someone would think torture might be the right decision under certain circumstances is apparently pretty convincing to just under a majority of people in the US.
Yes your righteousness on the torture issue is apparent. Yes your righteousness on gay marriage is apparent. But some people are just as convinced of the righteousness of their positions. On the torture case you happen to be in a narrow majority. On the gay marriage case you happen to be in a narrow minority. And guess what? We have a political system to deal with strongly held opposing beliefs. On the gay marriage position, you and publius say “Screw the political process (which won’t get me what I know is right), I’m so darned right that it doesn’t matter”. That is EXACTLY the position of the Bush Administration on torture. “Screw the political process (which won’t get me what I know is right), I’m so darned right that it doesn’t matter”.
Now I think that you really can get away with that quite a few times before trust in the rule of law collapses. But I don’t think that goes on forever. Using it as a major tool to get what you want isn’t good in the long run any more than living off twinkies as your main food source is good in the long run even if you can get away with it for a while.
Thank you, Brett, for making it so very clear to Sebastian where he’s chosen to take his stand.
I missed Sebastian’s long comment when I posted mine. I know that’s hard to believe – but I swear: Typepad seemed to have eated several comments, not just the one I responded to.
Sebastian, for a lawyer, you really don’t seem to have a clear idea that the rule of law includes the right to go to court and see justice done you. (Von seemed to think that, too, which makes me wonder: what kind of lawyers are you, either of you, that you don’t see the judiciary as a necessary part of the rule of law?)
Nor do you seem to realize that the US’s legal system is common law. Under a common law system, the legislature writes the laws, the judges interpret them, and a decision made by a judge until overturned by due process (which could include a decision by a higher court, or new legislation) is the law of the land.
It’s slightly weird, isn’t it, that neither you nor Von seem to get this. Perhaps it’s your obsession with Roe vs. Wade, your refusal to believe that judges had a right to make common law.
One of the reasons I value it is because I think that minority protections are safer when there is a wide-spread respect for the rule of law.
But you are arguing that the minority should not have the right to resort to their best protection under a legislative system: the courts. Your notion that minorities are “safer” if they can’t use the judiciary system to get their legal rights is just pure nonsense.
I seriously can’t deal with your repeated assertion that torture and gay marriage are just the same kind of moral decision as each other.
First it isn’t the company I keep.
Wait, did you make this comment after mine? *stares at Typepad*
Well, never mind. Your persistent assertions that torture and gay marriage can be lumped together, that minorities shouldn’t be able to access the courts to get equal rights – those put you right into the middle of your chosen company, the social conservatives of the Republican Party and Sebastian, while that company may tolerate you – a nice fawning gay man who won’t cause trouble but will wait nicely to be given what the majority decide will be good for him to have – they are not your friends, and they are not on your side, and it genuinely worries me to see you there clinging to them as if you thought they were a life-raft instead of a stone.
I suggest that someone hasn’t been paying attention.