Andrew Sullivan employs some sloppy reasoning in his latest defense of gay marriage. Understand, please, that I believe that gay marriage is the right thing to do. (And keep movin’ on down the street with your limp-wristed “civil union” compromise — half way is half right, and why stop at half right?) Here’s Andrew’s basic argument:
If the Constitution guarantees equal rights for all, and marriage is one of the most basic civil rights there is, and gay couples can and do fulfill every requirement that straight couples can, what leeway does any Court have? I’m constantly amazed by these claims of judicial “tyranny.” Was Brown v Board of Education tyranny? It’s exactly the same principle as operates here: separate but equal won’t do.
Here’s the problem with Andrew’s argument: Unless you believe the Constitution to be a “living document” (and Andrew, it appears, does not), the Constitution does not guarantee “equal civil rights for all.” Rather, the Constitution only guarantees certain civil rights. These are the civil rights that are specifically ennumerated in the Constitution. “Gay marriage” was not among them. (Racial equality was among them, however — in the 13-15th Amendments — which is why Andrew’s reference to Brown v. The Board of Education is a red herring.)
Even if you believe that the Constitution’s meaning was not fixed at the time of its drafting, however, Andrew’s argument still isn’t as self evident as he tires to portrary it. There are dozens of “basic civil rights” that even proponents of a living Constitution do not endorse.* Some are arguably more basic than the right of gays or straights to marry. Such as: The right to a job. The right to have adequate shelter. The right to an education. The right not to be discriminated against — in the workplace, in your personal life, in government, etc. — based on your looks, or your intelligence, or your athletic prowess, or the color of your hair, or the color of your eyes, or the shape of your earlobes, or the noises you make when you walk**, etc., etc.
It doesn’t matter that people are probably born gay. People are also born with blue eyes, rotten earlobes, and (to an extent) good looks — and yet the Constitution does not prohibit discrimination on those grounds in marriage, school, or work. Instead, the issue is whether the discrimination is based on an innate characteristic is worthy of protection. The Constitution clearly protects against discrimination based on your being born Black (again, see the 13th-15th Amendments). Whether the Constitution protects against discrimination based on your being born gay, is, well, much less clear . . . .***
The task of those who support allowing gay marriage through judicial (rather than legislative) means is to demonstrate that gays fall into a category deserving of specific protection under the Constitution. I think that’s a case that can be made. But Andrew Sullivan doesn’t make it with a platitude and a quick cite to the Brown decision.
*If you Google long enough, you will undoubtably find an exception or two.
**A creative lawyer may be able to fit certain of these into a protected category. But don’t confuse “shoehorning category X into category Y” with “now we’re protecting both category X and Y.”
***Which is why I generally support legislating, rather than litigating, gay marriage.
UPDATE: Typos corrected.
A couple things:
– Amendment 14, Section 1 makes it kind of REALLY hard for me to say there isn’t a lot of room for equality of gays under the law (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”). It’s not that “gay marriage” is a right under the Constitution – marriage is a privelege and a status which is afforded to everyone in the country except for one category of American citizens. I don’t know how you can get a much more black-and-white equal protections case than that.
– As to the broader issue of whether gay marriage should be legislated or litigated – if it’s the right thing to do, if it’s constitutional, why not? I understand that as a matter of politics, huge decisions coming down from the courts makes court appointments a political lightning rod – but the same was true in the days of Brown vs. the Board. And segregation wasn’t going to be legislated out of the South any time soon – courts had to step in and do the right thing. Why not now?
– Sullivan’s point of attacking civil unions has always struck me as an excuse to continue supporting a party that continues to rail against all of his most personal political stances. Civil unions don’t smell right to me, either – but they are, to be frank, better than nothing – and nothing is what we’ve got right now. From a pactical perspective, Americans are more ready to accept civil unions, and when they’ve been around for a while, they’ll accept calling those civil unions “marriages,” and then they’ll accept recognizing them in every state in the country.
Hey von, let me play law-schoolmarm and ask–does the fourteenth amendment, properly interpreted, give me the right to vote?
Sullivan might be a textualist rather than an originalist. I don’t think you could describe our old pal Hugo as a “living constitution” sort, but you can argue that “equal protection means equal protection” in much the way that Black argued “free speech means free speech.”
Frankly, I have no idea what Sullivan’s operating constitutional philosophy is. He might not even have one. Lots of people don’t. I don’t, at least not a well articulated one.
Hugo Black, I mean. Not trying to imply i’m on a first name basis, just the usual finger-brain coordination problem.
“And segregation wasn’t going to be legislated out of the South any time soon – courts had to step in and do the right thing. Why not now?”
The 13th and 14th amendment didn’t come from the ether, they were legislated. Are you saying the constitution only protects those classes that the majority declares to be protected classes? Isn’t the problem obvious here?
What, specifically, are the differences between marriage and civil union? Or are these open to interpretation?
“The 13th and 14th amendment didn’t come from the ether, they were legislated.”
13th Amendment – ratified in 1865.
14th Amendment – ratified in 1868.
15th Amendment – ratified in 1870.
Yes, it takes the courts to come out and say that this Constitution actually means what it says it means… a lot of people have lived and died waiting for someone to actually get the states to live by the law of the land. “Activist” judges are just living up to standards that were set a a century and a half ago.
“What, specifically, are the differences between marriage and civil union? Or are these open to interpretation?”
As far as I can tell – a civil union gives you all the legal rights that a marriage does (tax rights, hospital visitation rights, inheritance rights, etc.), you just can’t call it a marriage and don’t get a civil marriage certificate. Legally, it’s the exact same beast – they’re just calling it a different name so as to not to rile the “sanctity of marriage” crowd.
James:
1. The name matters a lot to people, on both sides of the issue. I also have a theory that people mistakenly think the court can order their church will have to marry gay people if it’s called “marriage”, but that’s just a hunch on my part.
2. Vermont’s civil unions give you access to some, but not all, of the privileges of marriage.
I don’t know what the exact differences are though.
3. Above all: my understanding is that, to have standing to challenge DOMA with regard to either other states or the federal government, you need your relationship to be called “marriage”.
I could have any of the above wrong. I’m going to a law school discussion on this later today; I’ll understand more then.
Katherine – what are the legal differences between Vermont’s civil unions and a marriage? Can you post a link?
As a side note – the entire “civil unions v. marriage” argument is wholly crazy. We have had civil unions in this country since its founding. You don’t have to be married by a priest – you can be married by a judge or another civil representative. If an atheist hetero couple can get a marriage certificate, then the “institute of marriage” is already Godless and secular, and there’s no reason for pushing a blatantly, wholly religious argument about “tainting the octopus” when we’ve long decided marriage is a secular institution.
“The name matters a lot to people, on both sides of the issue”
Can the “Civil Unioned” file joint IRS returns? Does it have the same force in immigration law?
If the two things are absolutely identical in the view of the law, then naming them differently boils down to discrimination for the sake of discrimination. And I believe Mass Supremes made that point yesterday.
Actually, a correction: upon further reading, #2 and #3 are the same, except that DOMA is not the only federal law affected. A lot of websites say that marriage confers “1049 privileges” and civil unions “about 300” (or 400) but the missing privileges are the federal ones. Based on these links:
http://www.nhftm.org/faqs/
http://www.religioustolerance.org/mar_bene.htm
So I think if it’s called marriage you can make an equal protection argument about a bunch of federal laws as well as a full faith and credit argument about a lot of state laws.
Iron Lungfish, I can’t post a link because I did all of my reading about this off the internet, but as I understand it, a Vermont civil union gives couples all the state benefits of marriage. What a state civil union cannot do that a federal civil union could do is grant couples all the federal benefits of marriage.
The difference between a federally-authorized civil union and marriage would not be a great deal, as I understand it – within the US.
But it’s possible that a couple who were (ahem) civilly-unioned, would not be treated as a married couple by other countries: international law is hazy on this issue, but generally speaking, if you’re married according to the laws of the country you were married in, then generally your marriage will be recognised by the country you’re living in as a marriage. No such principle applies to civil unions.
“the privileges or immunities of citizens of the United States”
Iron Lungfish — “privileges and immunities of the several states” ain’t gonna get you there. (And that’s assuming that the Slaughter House cases (discussed generally here) were wrongly decided, which I happen to believe).* The question will again boil down to whether gay marriage is one of the “privileges or immunities” referenced by this language.
At the time the 14th Amendment passed, the answer was “absolutely no.” Now, we have to ask (a) should we change the answer and (b), if we should, what’s the new answer? It gets tricky because, as I pointed out, there’s no desire to protect every conceivable privilege or immunity we might dream up.
The problem with Sullivan’s argument is that he ignores the difficult question, and suggests it’s all solved by saying “separate but equal”. It’s not. And, remember, just ends do not justify using any means — particularly since the law depends on using the right means.
Hey von, let me play law-schoolmarm and ask–does the fourteenth amendment, properly interpreted, give me the right to vote?
Erm, no, Katherine. If you’re referencing the fact that you’re a woman, that’s the Nineteenth Amendment you want. If you’re referencing a national origin/race/ethnicity argument, look to the Fifteenth.
von
*The Slaughter House cases essentially held the privileges and immunities clause of the 14th Amendment to be meaningless.
Von — why is the equal protection clause of the 14th Amendment inapplicable here? Isn’t that what Sullivan is relying on? I was under the impression that the equal protection doctrine relied not on whether the right/class was specifically enumerated in the Constitution, but on whether it was a identifiable “discrete and insular minority” (yay Carolene Products!) that was discriminated against without a legitimate public policy justification based on relevant characteristics of the group. Is that wrong?
Jes and Katherine – thanks for the info, clarification, and links.
With regards to civil unions and international law – what a mess. I’ll never understand why two people of the same sex getting married provokes enough anger and fear to justify this kind of fractious legal nightmare.
I actually know about the 19th amendment. The point is, if “equal protection of the law” allows denial of voting rights based on sex, the words don’t mean much, and there’s not much point to the Supreme Court.
The point is, if “equal protection of the law” allows denial of voting rights based on sex, the words don’t mean much, and there’s not much point to the Supreme Court.
But isn’t your premise — “‘equal protection of the law'” allows denial of voting rights based on sex — inherent in the fact that the 19th Amendment exists, Katherine? Isn’t it a fundamental rule of legal interpretation (not to mention grammer) that we don’t interpret documents in a way that makes different provisions of the same document wholly redundant?
von – if the framers wanted to tell us just what groups got equal protection under the law and which groups didn’t, they would’ve told us, with a great big asterisk that said “does not apply to gays, women, Jews, lovers of bluegrass, etc.”
As far as “just ends and unjust means” go – if equal protection isn’t a just means, well, crap, what is?
And frankly, I’ve always thought that the 19th Amendment was redundant from a legal standpoint (and there are plenty of others who would agree). The reason why it’s in there is obvious – to triple-underline it, to make it absolutely damn clear.
If one thing about our country can be learned from reading itd founding documents, it’s that the people who wrote them seemed to take too lightly what they were saying (“What, ALL men are created equal?”). It’s either equal protection under the law or it’s not – the folks who wrote it back then can’t tell us now “no fags allowed.”
why is the equal protection clause of the 14th Amendment inapplicable here?
Yup, that’s Sullivan’s focus — and where, in my view, the focus should be. (My discussion of the privileges and immunities clause was in response to Lungfish, above.) But, again, you run into the same kinds of problem that I identify in my initial post. We don’t prohibit states/individuals/etc. from allowing discrimination based on certain attributes.
The question is, what differentiates gay marriage from these other forms of permissible discrimination? It’s a question that Sullivan doesn’t try to answer.
I could make a similar argument about the poll tax, by the way. You’re okay with that requiring it’s own amendment? Again, I understand that it GOT its own amendment, but the Court has since held that it is also prohibited by the equal protection clause.
(And of course many people kvetching about “activist judges” are perfectly fine with Bush v. Gore, and many of them are okay with overturning any economic regulation they please. Right. Not you, but I can’t forget that when I hear these arguments.)
P.S. For that matter, I’ve also always thought the Equal Rights Amendment was redundant, too.
Isn’t the 19th amendment specific to voting? Is von saying the 14th amendment does not necessarily apply to Katherine in terms of a speedy trial, for instance?
I could make a similar argument about the poll tax, by the way.
No, Katherine, your argument would be far, far better on the poll tax. Because the framers of the Fourteenth Amendment also saw the need to simultaneously pass the Fifteenth Amendment — guaranteeing Blacks the right to vote.
Is von saying the 14th amendment does not necessarily apply to Katherine in terms of a speedy trial, for instance?
Nope, not at all. (14th Amend’s “Due process” clause would require that trials be somewhat speedy.)
“Isn’t it a fundamental rule of legal interpretation (not to mention grammer) that we don’t interpret documents in a way that makes different provisions of the same document wholly redundant?”
That sounds good. What it means in practice: Prejudiced judges interpret the constitution one way, so you need an amendment to change it, which proves the prejudiced judges were right all along.
“Nope, not at all. (14th Amend’s “Due process” clause would require that trials be somewhat speedy.)”
Wait a minute that’s circular. Point is whether Katherine is a protected class or full citizen. If not, then due process would not apply.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Look – either the damn thing means what it says it means or it doesn’t. Redundant amendments don’t mean one amendment doesn’t cover the other one’s ground; it just means you can decry, for instance, the poll tax on 14th and 15th Amendment grounds instead of just using one (because the 14th one’s appeal to blacks would for some reason “not count.”)
If they meant to make it specific to anything-but-voting, or anything-but-marriage, or anything-but-this-group, they would’ve done so. It’s not in there.
What it means in practice: Prejudiced judges interpret the constitution one way, so you need an amendment to change it, which proves the prejudiced judges were right all along.
Why restrict it to “prejudiced judges”? Isn’t it really “prejudiced societies”?
This is too pat. The Surpreme Court clearly may overturn prior decisions that were erroneously decided — like (to my mind), the Slaughter House cases.
Reading the darn thing there seems to be purposeful distinction between “citizens” and “persons”. Am I seeing things?
Wait a minute that’s circular. Point is whether Katherine is a protected class or full citizen. If not, then due process would not apply.
Actually, it’s not circular. Katherine suggested that some portion of the 14th Amendment (equal protection, due process, privileges and immunities) granted women the right to vote. (Not the right to a speedy trial, etc.) I said it didn’t (referencing the need for the 19th Amendment). I also noted that the 14th Amendment didn’t even give former slaves the right to vote (referencing the contemporaneous passage of the 15th Amendment, which, you guessed it, gave former slaves the right to vote.)
They weren’t being denied the right to vote on the basis of race (or prior servitude), they were being denied the right to vote because they couldn’t pay a reasonable fee. I mean anyone who’s not an idiot can see that, here are some dictionary definitions of race; nothing about taxes here. And the fact that the 24th amendment was needed to outlaw the poll tax in federal elections 1964 settles the question–otherwise it would be redundant. So there is no constitutional basis for outlawing the state poll tax.
So the argument could go.
Reading the darn thing there seems to be purposeful distinction between “citizens” and “persons”. Am I seeing things?
No, you’re not. The Constitution made a distinction between between different classes of persons. E.g.,
The Fourteenth Amendment was intended to correct this distinction. (And note that there are many persons in the US today who are legally here but not citizens.)
Look – either the damn thing means what it says it means or it doesn’t.
Well, that’s the rub, ain’t it? ‘Cause the damn thing meant one thing in the 1880s, another thing in the 1930s, and still another thing today. That’s the nature of language and the nature of society — each evolves (or devolves, depending on perspective), changes, revises itself.
(And I’m not even getting into the trouble posed by the postmodern critique.)
von
Right, the Supreme Court could get it right later. But if Congress & the people decide they don’t want to wait around for that to happen, and pass an amendment–it doesn’t prove that the Supreme Court had it right in the first place.
You have a stronger argument that the 14th and 15th amendment couldn’t be redundant because they were passed at the same time. But come on. It was passed by the Radical Republican Congress with a 2/3 majority and the ability to force states to ratify. That wasn’t going to last, and they knew it. They remembered Dred Scott, surely. They had every reason to fear that the Supreme Court would do it’s best to get out of enforcing the new amendments–and the Supreme Court did exactly that. Damn straight they were redundant, and it’s a good thing they were.
But your points, von, just seem to make Katharine’s point for her – that the other amendments (19th, 15th 24th – which I would call technically redundant) were passed just to make it clear that those rights were not to be overturned or overruled by prejudiced judges who would interpret them as excluding women and black from voting.
If the 14th doesn’t guarantee things like voting rights and marriage rights, then what is the equal protection clause in there for – because it IS clearly delineated from “due process.”
And if it’s not – if the 14th doesn’t guarantee, say, voting rights for all citizens – then is it legal for a state to pass a law denying, say, gays the right to vote, because an Amendment hasn’t explicitly extended voting rights to all Americans, or to gays?
Kathering, you lost me on your last entry on the poll tax. But let’s get down to brass tacks:
(1) Are you suggesting that a correct interpretation of the 14th Amendment would render the 15th, 19th, and 26th Amendments redundant? (2) Assuming #1 is correct, are you suggesting that we should interpret the 14th Amendment today in a manner that would render the 15th, 19th, and 26th Amendments redundant.
Before you answer (2), consider that, at the time of passage, 2/3ds of the Congress and 3/4ths of the states took the view that the 15th, 19th, and 26th Amendments were not redundant. (For the 15th Amendment, remember that this included the same people who had just passed the 14th Amendment.)
Sorry: Katherine.
Iron Lungfish, take a look at my above response to Katherine. And, again, consider that the same group of people passed the 14th and 15th Amendment.
Look, I understand Katherine’s argument is facially appealing because it gets us the result we think is just. But if you look at the Amendments, and try to interpret them consistently, it just doesn’t work out.
My point is, the 14th is, ultimately, a really radical piece of legislature when taken at face value. It’s only when it’s defanged – when courts and politicians pretend that “equal protection” means some are more equal than others – that it “means something else.” The failing isn’t the amendment’s – it’s the society that says their constitution guarantees everyone’s rights and still prevents half its citizens from voting.
Did you read my last response yet? You don’t seem to have.
Or, you just won’t acknowledge legal realist sorts of arguments at all, in which case we’re at an impasse.
Von, I’ll respond to you – although I think I already have.
1. Yes.
2. They weren’t saying those Amendments weren’t redundant. They were saying they were necessary – as in they were needed to force the judiciary and the states to recognize that they weren’t screwing around. There is a serious difference. One is procedural and practical, one is ontological. Philosophy operates on an ontological level – law and politics don’t.
Sorry, the poll tax is dealt with in the 24th, not 26th, Amendment.
And if it’s not – if the 14th doesn’t guarantee, say, voting rights for all citizens – then is it legal for a state to pass a law denying, say, gays the right to vote, because an Amendment hasn’t explicitly extended voting rights to all Americans, or to gays?
There’s certainly an argument that it’s legal, though I can think of several sources in the Constitution itself that would tend to forbid it. (Remember, too, that the right to vote is not absolute. Felons, for instance, can’t vots (not to compare gays to felons — example only).)
Did you read my last response yet? You don’t seem to have.
If it’s your last response on the poll tax, Katherine, I said I didn’t understand it.
Or, you just won’t acknowledge legal realist sorts of arguments at all, in which case we’re at an impasse.
I understand your “legal realist” argument. But I’m trying to understand what rules you’re applying to interpret the Constitution, a written text. Because, if we’re going to have rule by law and not by (wo)men, we’re going to have to apply the rules you chose in this situation consistently in other situations.
They weren’t saying those Amendments weren’t redundant. They were saying they were necessary – as in they were needed to force the judiciary and the states to recognize that they weren’t screwing around.
But the effect of your interpretation of the 14th is to render these Amendments redundant, no?
No, the one after. 1:29 pm.
How do you feel about the incorporation of the bill of rights against the states?
Ahh, I see your post.
You have a stronger argument that the 14th and 15th amendment couldn’t be redundant because they were passed at the same time. But come on. It was passed by the Radical Republican Congress with a 2/3 majority and the ability to force states to ratify. That wasn’t going to last, and they knew it.
In other words, they knew that the 14th Amendment didn’t on its face forbid racial discriminatiion in voting rights. (Here’s another mystery to ponder: Why did these same “radical Republicans” split the 14th and 15th Amendments up, if they so clearly overlap. Why not out the 15th Amendment’s language in the 14th?)
Again, the question is “how do we interpret the Constitution consistently,” not, “what circumstances can we dream up to explain why our preferred interpretation renders certain Amendments wholly superfluous, and others materially distinct.”
And just to state it one more time: They should have been redundant. If we’d had a decent, non-sexist or racist majority on the Supreme Court, they would have been redundant. But we had a Supreme Court that got the 14th amendment spectacularly wrong for the better part of a century–so in practice they were not redundant.
How do you feel about the incorporation of the bill of rights against the states?
I think that, though the question is not free from doubt, the privileges and immunities set forth in Amendments 1-9 were among the “privileges and immunities” referenced in the 14th Amendment. I understand that this view is directly contradicted by the Slaughter House cases, which I believe were incorrectly decided.
They should have been redundant. If we’d had a decent, non-sexist or racist majority on the Supreme Court, they would have been redundant.
According to you, a interpreter of history. Not according to their drafters. Not according to the law that existed when they were drafted and ratified.
The question becomes: which interpretation controls? (Or, put into post-modern parlance, “do we ‘get our Derrida on’ when interpreting the Constitution?”) You know the ancient Anglo-Saxon answer. (Hint: not us.)
von
We’re at an impasse. I find you’re arguments absolutely infuriating. That historical argument about those amendments is not something I “dreamed up”. It is the most plausible interpretation of what happened, and you haven’t given me one reason why I’m wrong. You argue for originalism, but God forbid we inquire into what actually happened instead of pretending that this comma placement dictates The Law.
You say we’re arguing about whether to be ruled by laws or men. So can I–I can say that equal protection has some meaning that is not determined by what men thought it meant during the era of Jim Crow.
But it would probably be most honest to say that laws and men are not totally separable in real life, and we’re arguing over what the right laws are and which men (and women) should get to make that decision. That’s what legal realism started as–an acknowledgement that judges are making the law, not just dictating it from on high, and that political and moral concerns are an inevitable part of the process. Originalists and textualists do the same damn thing, they’re just more dishonest about it. It was the Lochner majority and the Plessy majority that claimed they were simply doing what The Law, in its majesty, commanded them to do. Holmes and Brandeis were the legal realists, and Holmes and Brandeis were the ones who got it right. Those wicked, wicked activist judges on the Warren Court were the first ones to get the 14th Amendment right. (Yeah, they went too far on other things, but the 1950s civil rights decisions are the single best justification in our country’s history for having a Supreme Court–and not only because I agree with the outcome.) Meanwhile, originalism and textualism, reading the Constitution as the founders intended, just happens to compel results that coincide exactly with Scalia’s political views and who he wants to be President. Right. Forgive my cynicism.
I have felt that, in line with the North’s perception of the Civil War, the 14th essentially eliminated the independence of states and “states rights”, and that the 15th was not an expansion of the 14th, but a narrowing of its scope.
So a textual or originalist interpretation of the 14th would include the broadest interpretation possible.
BTW, to get off my high horse slightly, I think you’re right about privileges and immunities and due process clauses. But what do you do about it? Overturn well over a hundred years of case law? How do you reconcile that with the very very old idea that you’re supposed to respect precedent unless you have a compelling reason not to?
To me, that question–how you decide which cases you disagree with but are “settled law”, and which cases are so wrong they must be overturned–is the clincher for legal realism. I don’t believe it’s possible for any human being to answer that question in a way that’s not affected by his or her political and moral views.
You crazy lawyers.
von, come up with a definition for Kathering. It’s too good a word to abandon at birth.
Someone riddle me this: what does the law have to say about civil unions and children? And would you say marriage was more family-orientated than civil union? And what is the separation rate in your glorious country for marriages and for civil unions?
It is the most plausible interpretation of what happened, and you haven’t given me one reason why I’m wrong.
Well, for the record, that’s not true. (There are the very acts of ratifying and amending, and the reasonable presumptions one draws from that; there are also the fact of the 14th and 15th Amendments were passed simultaneously; etc.) But if you think we’re at an impasse, then we are.
I would say this: You gotta start with the words as written, because that’s all we got. It’s not a question of comma placement or form over substance. And it doesn’t mean that you don’t sometimes deviate from the literalist view in specific circumstances.
I think you’ll find that my approach is pretty much every judge’s approach to the law — be they liberal or conservative. (For example, see How Appealing’s recent interview with Judge Reinhardt of the 9th to see how he characterizes it.)
Let’s have the discussion again after you’ve practiced law for a couple-three years. I’m not so arrogant that I think you’ll certainly change your mind, but I’m arrogant enough to think that you may take a couple steps back-or-to-the-side.
I have felt that, in line with the North’s perception of the Civil War, the 14th essentially eliminated the independence of states and “states rights”, and that the 15th was not an expansion of the 14th, but a narrowing of its scope.
I’d be curious to hear why you think that, Bob. Not saying you’re necessarily wrong, but it just seems so contrary to the text of each.
Someone riddle me this: what does the law have to say about civil unions and children?
I understand that the question is completely unsettled in the US, Casey. (Most jurisdictions still generally take a negative towards homosexuality when placing children in other circumstances, though.) BTW, what’s the law in the UK?
One other thing: we’re all being a bit silly, arguing about the U.S. Constitution when this is a state supreme court interpreting a state Constitution. Specifically, this one:
http://www.state.ma.us/legis/const.htm
I’ve never read the Massachusetts Constitution fully, though I’ve skimmed through it a few times–it’s 79 pages long, and really confusing. Still less do I know the historical circumstances of its passage or amendments. If I recall correctly its equal protection clause is phrased exactly the same way as the 14th amendment’s.* I don’t remember the powers delegated to the Supreme Court. I don’t know the relevant case law precedents.
But I’ve at least looked at the thing, and I at least live here, and I’m the unabashed legal realist. Most of the people decrying Massachusetts’ “unelected, activist judiciary” can say none of these things. They are even more ignorant than I am about the Massachusetts Constitution and its history. And if they believed in federalism as much as they claimed to, they’d recognize that it’s none of their business.
*Yep, found it:
“All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”
“is phrased exactly the same” should be “isn’t phrased exactly the same”.
But what do you do about it? Overturn well over a hundred years of case law? How do you reconcile that with the very very old idea that you’re supposed to respect precedent unless you have a compelling reason not to?
I think “being absolutely positively wrong” is a compelling reason not to respect this particular precedent. That said, though it offends my sense of consistency and language, I’m pretty darn OK with the “due process” stopgap that’s been created.
we’re all being a bit silly, arguing about the U.S. Constitution when this is a state supreme court interpreting a state Constitution.
My comment is on the Sullivan article, which concerns the US Constitution.
“You gotta start with the words as written, because that’s all we got.”
That’s what I think I’m doing. You’re the one who seems to be arguing for an interpretation of equal protection that does not include women. How is that starting with the words as written?
von, the law re. civil unions in the UK:
Well… tricky. They don’t really exist. There’s what’s known as ‘common-law’ marriages, but claiming you’re in one is really tough to do legally. But there are plans to draw up legislation for civil partnerships.
Regarding same sex couples, let me quote to you from the speech made by our delightful monarch, HM Queen Elizabeth II, at the last State Opening of Parliament (you’re missing out, guys – come back to us. It’s not too late to rejoin the fold):
“My government will maintain its commitment to increased equality and social justice by bringing forward legislation on the registration of civil partnerships between same sex couples.” – so this is on the cards.
The changes are going to apply in England and Wales, and will allow a registered partner to benefit from a dead partner’s pension, grant next-of-kin rights in hospitals, and give the same exemption as married couples have from inheritance tax on each other’s estate. They would also have the right to register their partner’s death and be able to inherit a tenancy of a rented home.
Furthermore, same sex couples would be able to gain parental responsibility for each other’s children and be obliged to support each other financially.
However, intriguingly, gay-rights activists have attacked this legislation, saying it would give same sex couples more rights than non-married heterosexual couples.
This is because basically, non-married hetero couples have next to no rights at all. Since 1996 they’ve been able to make claims on a deceased partner’s estate if they can prove dependency, but there’s not (yet) much more than that.
(you’re missing out, guys – come back to us. It’s not too late to rejoin the fold).
Hmm….this is more attractive than the old “move to Canada” card, despite the latest McCall’s. The places I care most about are already called “New England” and “New York” so we wouldn’t have to change the name….But there would have to be some conditions:
1. No taxation without representation.
2. We wouldn’t have to eat those puddings.
3. We’ll take your football over our football if you switch from cricket to baseball.
4. Lawyers do not have to wear those silly wigs.
Me: “You gotta start with the words as written, because that’s all we got.”
Katherine: That’s what I think I’m doing. . . .
I was less than clear. (Shocker!) The operative phrase is “as written” — i.e., where the drafter and reader would have different interpretations, the drafter’s interpretation wins.
One more thing, and I promise this is my last post: I have not been clear either, if I said anything that led you to believe I disagree with Reinhardt. In fact I was trying to make the exact same argument that he is making in these excerpts:
“These distortions are nothing more than political slogans designed to vilify judges whose views differ from their own. This is regrettable. No judge I know, liberal or conservative, acts in the manner described in your question.”
“We all frequently apply the law in ways we would prefer not to. I have sat on a host of cases in which, had I been imposing only a Solomonic sense of justice unconstrained by the Constitution, federal statutes, or precedent, I would have come to a different result than I was compelled to reach. It is not a happy task to have to uphold an unjust or unfair result. But it is one that, at least on some occasions, every appellate judge must perform. I am regularly required by law, for example, to affirm deportation orders and deny petitions for writ of habeas corpus in instances in which it appears to me that the result is unjust and in which I believe the individuals are being deprived of due process of law. However, the federal statutes involved, or an applicable precedent from this court or the Supreme Court, often leave me no choice.”
“It is naive, if not disingenuous, to assume that liberals are simply imposing a “personal preference,” while those conservative judges who continually reach the same restrictive result, in case-after-case, are simply “following the law.” Different legal philosophies produce divergent legal consequences. We can debate which constitutional philosophy is the more appropriate one, but it is intellectually dishonest, and ultimately a disservice to the law, to accuse those who subscribe to a competing philosophy of being lawless or engaging in misconduct.”
I am actually more moderate than Reinhardt. Brennan and Marshall are heroes of mine but I would not go as far as they did. The judges who come closest to my views today are Souter and Breyer. The text of the Constitution should always be the starting point, but it is often vague–deliberately vague, I would argue. The original intent–insofar as we can figure it out, which is a lot harder than you make out–should always be considered and should sometimes be decisive. But I don’t see why that should always be so. They’re dead, and we’re not, and I don’t think it’s all clear that they expected or wanted the Constitution to be frozen in 1787 except for the amendments.
I don’t know what I’d do if I were a Supreme Court Justice asked to re-hear Roe and Miranda. But in many other cases, I would have no trouble at all reaching a decision that many people, yourself included, would call “judicial activism”.
I suspect I may be arguing partly against Antonin Scalia, and you may be arguing partly against, I dunno, some critical legal studies type. Duncan Kennedy, maybe.
so late to this party…and must be getting home, but this struck me (and thanks for posting this issue ObWings):
From a pactical perspective, Americans are more ready to accept civil unions, and when they’ve been around for a while, they’ll accept calling those civil unions “marriages,” and then they’ll accept recognizing them in every state in the country.
I think Iron’s right about this in general. But there’s something to be said for not having the time to wait for practical solutions. Sometimes it’s worth it to press the issue (if nothing else it helps prod the practical solutions along more quickly).
My biggest beef with the Civil Union solution (and that’s a depressing statistic Katherine “marriage confers “1049 privileges” and civil unions “about 300″ (or 400) but the missing privileges are the federal ones.”) is that it does nothing for gay couples where one is not a citizen.
Denying a gay person’s ability to legally live with their chosen partner in this country when there are immigration complications is grotesquely unfair and represents a serious inequality. Marriage is always an option…a solution…for straight couples. A similar option for gay couples is needed regardless of what name the arrangement is given.
Edward
Great point! That and being allowed into a hospital room are two incredibly important rights that married people take for granted.
I wonder if the real reason behind some of the public’s retisence towards civil unions being equated to marriage is rooted in the their ignorance as to what happens when such a thing disolves. If a straight marriage disolves then, at least in Lutheran eyes, you’ve broken an oath to God and, in California’s eyes, you’ve been invited to court.
And, it doesn’t matter if a couple is agnostic or atheistic and thus feel they haven’t broken their word to a god, those looking to deny them the right will believe that they have and will feel that the couple will reap the punishment of that decision.
Do Civil Unioneers simply sign a document that says what they are now united? If so, then I assume that there is no oath to God and therefore nothing but the state’s divorce laws stopping the dissolution of the union? Correct?
That belief in that “ease” of dissolution is IMHO what keeps many against equating unions to marriage.
Huh. What is the law with regard to the Agnostic/Atheist? If they’re married at City Hall, do they call it marriage? If not, do they have the same difficulties? Is there an oath to a god at City Hall ceremonies?
Wow. That’s a pretty impressive thread….
Von, w/regard to equal protection, I confess I’m a bit puzzled. Which cohesive, identifiable, “insular minorities,” may the government currently discriminate against under the 14th Amendment? You’ll forgive me if I think that blue-eyed short people aren’t exactly a cohesive group under the Court’s equal protection jurisprudence (find me some evidence of a common identity, some sort of common treatment based on said characteristics and identity, etc. and we’ll talk). Let me turn your question around on you for a sec: why are gays different from blacks or Christians or women in terms of the degree of discriminatio that is constitutionally permitted?
You’ll forgive me if I think that blue-eyed short people aren’t exactly a cohesive group under the Court’s equal protection jurisprudence (find me some evidence of a common identity, some sort of common treatment based on said characteristics and identity, etc. and we’ll talk
Well, I probably can’t for blue-eyed short people. Do you mind, though, if I pick the “cohesive group”? Let’s call them “physically unattractive people.” They’ll be some dispute on the margins, sure (just as there can be with race — how “Black” is “Black enough”), but I’m pretty sure that we could come up with a cohesive group. And I’m pretty sure we can establish that they’re subject to discrimination — in marriage, the workplace, etc.
why are gays different from blacks or Christians or women in terms of the degree of discriminatio that is constitutionally permitted
The classic answer would be that gays are not considered worthy of protection at the time the relevant Amendments were passed, and therefore were not defined by the drafters to be within the protected group. Indeed, at the relevant times, homosexual behavior was criminalized.
Two comments: 1) But we’re not talking about workplace conditions, or ability to get laid, or any of that, are we? We’re talking about state action. Unless you want to start arguing in favor of systematic workplace discrimination that the government has done nothing to prevent (that’s an…_interesting_ burden of proof you’ve got yourself there), I’m not sure your example is relevant.
2) If we’re going to bring originalism into this discussion, can we at least make it original meaning rather than original intent? I personally find it quite a bit more plausible. (The fact that it puts quite a bit more teeth into the Equal Protection Clause is a pleasant side benefit).
But we’re not talking about workplace conditions, or ability to get laid, or any of that, are we? We’re talking about state action.
Yes. And I’d argue that the State Constitutionally discriminate against ugly people (or attractive people, for that matter), if it so chooses.
can we at least make it original meaning rather than original intent
I thought that what I said: “therefore were not defined by the drafters to be within the protected group.” (Emphasis added.)
Are you arguing that state Constitutions do discriminate, or can discriminate? If the former, can I have some analysis to back it up? 🙂 If the latter, well it seems like doesn’t prove anything, given that it doesn’t deal with the main issue (are ugly people different from gays from a Constitutional equal protection question).
On the wording of the EP Clause: what do you mean, they were “defined” by the drafters? Are you saying that “equal protection” meant something different in this clause (from an original meaning perspective) than the intuitive definition of the word? If you’re saying that EP only (properly) applies to black people (which I think would be the obvious originalist contention, though I’m not terribly well-versed in the ins-and-outs of the issue), then you’re attacking many more applications of equal protection doctrine than the one at issue here.
That’s fine (I think we certainly ought to consider the originalist case), but if that’s the case, it probably ought to be an explicit rather than implicit premise in your argument.
If that’s not what you meant by that sentence, than what _did_ you mean?s
First paragraph, last sentence: question should be standpoint.
Wow! This is a loooooong thread.
I just wanna say that while Tim Russert has George Bush I have Tim Russert! Fafblog has an interview scheduled with Tim on Sunday. Hooray!
Is this the longest thread OW has had so far? It certainly feels like it… 🙂
Is this the longest thread OW has had so far? It certainly feels like it… 🙂
Ouch . . . . (I think there was a longer one when I tried to slam Dean.)
Are you arguing that state Constitutions do discriminate, or can discriminate? If the former, can I have some analysis to back it up? 🙂 If the latter, well it seems like doesn’t prove anything, given that it doesn’t deal with the main issue (are ugly people different from gays from a Constitutional equal protection question).
Nahh, I meant that a state can discriminate based on appearance under the EPC.
Granted w/r/t the EPC’s scope being more clearly limited to race under an original intent argument. But it’s still there under the original meaning argument — ya just gotta accept a nuance or two.
Well, if you want me to come up with substantive differences between gay people and ugly people for equal protection purposes, I can (let’s start with the proposed amendment in MA, and go from there. Note also that the Court already _has_ recognized gays as a pretty cohesive, identifiable, persecuted group, in Romer and Lawrence; see in particular O’Connor’s concurrence in Lawrence). Now, if you think that’s too broad/loose of a definition of a group for equal protection purposes, and that a proper reading of the original meaning of the EP Clause would render a more narrow doctrine, I’m all ears. I’m just wondering if you think the Court’s EP Doctrine as it has developed over the last 30 years or so is wrong from an originalist perspective (which is fine, don’t get me wrong; I’d just want to hear your reasoning).
Oh, and don’t worry about how long the thread’s gotten; revel in it, instead. 😉
“Nahh, I meant that a state can discriminate based on appearance under the EPC.”
Isn’t there a decent argument that a law that said “we will not hire ugly people” would fail the rational basis test? I know it’s pretty toothless, but there are signs the Supreme Court is putting some teeth in it.
Certainly Justice Kennedy would have it be so…