August 9, 2010

"Would you like your right to free speech... put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do?"

"Would you like Fox’s right to free press...? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution." 

Said Ted Olson.

Here's something Rush Limbaugh said in the middle of his monologue about the Prop 8 opinion:
The left uses issues such as gay marriage as battering rams to wreck the US Constitution and that's what's going on here. ...  Well, the Democrats who are cheering this ruling, overturning California's Prop 8, are not really cheering gay marriage.  They want gays to believe that they are.  They are cheering and they are giving standing ovations to this judge for weakening the US Constitution, for ripping it to shreds, because that is the objective of the American left....
The Constitution was written to deemphasize the power of federal governments.  Our Founders had fled tyranny.  They certainly didn't set up tyranny when they founded this country with the Constitution. But the left -- the Marxists, socialists, progressives, whatever you want to call them -- want tyranny and they want to be in charge of it.  The Constitution stands in their way.  So this judge is being cheered ostensibly for recognizing homophobia in the heterosexual community for thousands of years.

Thousands of years of discriminatory homophobia has led to gay people not being allowed to marry, and this judge (finally someone enlightened) has come along and seen it. Wrong.  They are cheering the fact that this judge has rammed the Constitution with a battering ram.  These are the same Democrats who have either remained silent or openly advocated the building of a mosque where Sharia law is the word of Allah at Ground Zero.  Now, Sharia law not only bans gay marriage, it bans gays. Permanently.  So why in the world would leftists who are cheering a judge who has just said that Prop 8, voted on by seven million Californians is unconstitutional because of decades -- generations, thousands of years -- of homophobia and discrimination practiced by heterosexuals...?
I like Rush enough to believe that when he got to this part of his monologue, he knew he'd become incoherent. If you don't want the majority's idea of morality imposed on everyone, you need individual rights that courts enforce against the will of the majority. The Constitution limits what can be imposed on individuals. It limits the federal government, and — with the 14th amendment — it limits the state.

454 comments:

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Scott M said...

Back in college and shortly thereafter, I was constantly amazed by friends and acquaintances that saw the Constitution as an impediment to a more just and moral society.

Now, almost 20 years later, I'm likewise amazed at how getting a little older has changed almost all of their minds. Churchill was right, the old bastard...

joewxman said...

Oh for God sakes..let them marry already so they can be miserable and file for divorce like the rest of us.

AllenS said...

Would Ted Olson like to see a vote on whether he should be hung? Would Ted Olson also like to see on his free speech vote, contain the letters ABC, NBC, CBS, NPR, MSNBC, etc.? I'll bet he wouldn't. Wallace should have called his bluff.

Speaking of becoming incoherent about a subject, anybody else come to mind, lately?

Seven Machos said...

The Constitution limits what can be imposed on individuals. It limits the federal government, and — with the 14th amendment — it limits the state.

The Constitution also limits what the federal government can do. The whole document is a testament to that limitation.

That said, Limbaugh's argument isn't nearly as good as mine.

let them marry already so they can be miserable and file for divorce like the rest of us

Why clog up an already clogged-up court system with gay divorces when the state government has no interest whatsoever in recognizing a gay marriage contract?

lyssalovelyredhead said...

I agree that the Constitution overrules the majority and that that is a necessary check against against mob rule and prejudice. I just don't agree that 1) the constitution protects SSM (as opposed to it's clear and unequivocal protection of free speech), or 2) that lack of state recognition of a relationship is comparable to criminalization of a relationship. (as opposed to, say, the Lawrence decision, which criminalized the acting out of their sexuality, a fundemental part of human existence, or the Loving decision, which actually criminalized the interracial relationship (they were caught sleeping in the same bed by officers trying to catch them in the act of sex- how sick is that?)).

I do support same sex marriage, but I don't like this decision.

- Lyssa

dbp said...

Let's see if I have got this right:

--A minority would like to re-define an institution which already existed for thousands of years before the founding of our nation.

--The majority has voted to reject this fundamental change.

--"Justice" is achieved by forcing the majority to submit to the will of the minority.

Chase said...

dbp

Yes, you have it correct.

Sad.

Scott M said...

Oh for God sakes..let them marry already so they can be miserable and file for divorce like the rest of us.

In the fullness of time, given that I believe this particular djinni is out of yon bottle, I believe it's going to be fairly commonplace to have gay men on their seventh or eighth marriage (civil union, whatever). I think it's as inevitable as tattooed, and pierced senior citizens at rock concerts.

Salamandyr said...

The part with Rush doesn't interest me much, but the part with Olsen does. Did Chris Wallace respond, "but the First Amendment was voted on, Ted". All the Amendments were voted on. But now that's too hard, that's too unfair.

A.W. said...

First, I am sick and tired of morons like Olson equating what is not reasonably in the constitution with what is obviously in the constitution. Olson has made a great argument for amending the constitution, not making crap up in it. The reason why the first amendment is not up for a simple majority vote is BECAUSE someone has put it in the constitution. The claim that excluding gay people from marriage is unconstitutional doesn’t pass the laugh test.

But we enforce morality all the time. What is the ideal? You can do whatever you want as long as you don’t hurt anyone else. Well, okay, then so I can commit animal cruelty, because after all no person is harmed, right?

And don’t say the animal counts, because in Roe v. Wade the Supreme Court said that since a fetus is not a person they don’t count. There is no way to say a fetus doesn’t count however late in gestation, but a dog does. Its really hard to explain our animal cruelty laws based on anything but a moral assessment.

Ditto with the ban on incest. This is not a matter of marriage only, but the criminal law. And the fact its not just about the fear of bringing out recessive genes, one only has to notice that most states will ban incest between persons related only by adoption or marriage (step brothers and step sisters, for instance). And the same laws that mandate prison time for incestuous sex do not make any distinction between gay and straight incest, even though obviously only one of the two presents that genetic danger.

Now in both cases it is often alleged that the laws are justified by a belief that the activity is psychologically unhealthy. Which strikes me as a modern dress up for morality, but okay, so why can’t we say that we the people think that gay relationships are unhealthy?

By the way, on the ground zero mosque, here is another horribly bigoted person who doesn’t want them to build a mosque at ground zero. This unreconstructed muslim hater of course being herself a muslim, who lost her mother on 9-11: http://www.washingtonpost.com/wp-dyn/content/article/2010/08/06/AR2010080603006.htm

Which doesn’t prove my argument right, but it does prove you can believe that it will be seen by all the wrong people as a victory sign without being an anti-muslim bigot. But like all other evidence, I expect everyone on the left to disregard it.

Fred4Pres said...

Rush is right that by making it easier and easier to mess with the 14th amendment, you weaken the constitution, not strengthen it.

We all know damn well that the 14th amendment is not about gay marriage. It was never intended to be that. It was not about gender, since we needed the 19th amendment to guarantee women the vote.

So if a judge can find a right and impose it...what does it take for that same judge to take it away? The constitution was intended to protect rights and limit government and be hard to change for a reason.

Now it is easier for the judicial branch to find a new right than it is for Congress to pass a statute. This is wrong.

And what is the big deal? Gay marriage is not exactly Jimn Crow. Certainly not in California where civil unions mirror marriage and Prop 8 only preserves a definition.

Now I would have voted against Prop 8. But what is stopping gays like David Geffen from funding a petition to get a new Proposition back on the ballot and reverse Prop 8 again? Sullivan and others say younger voters are all for gay marriage. If history is on their side (and I believe it is) why not let history take its course?

I am saddened that Ted Olson thinks it is okay to circumvent federalism in this manner.

Seven Machos said...

Everyone, regardless of ethnicity, gender, handicap, whatever can enter into a state-recognized marriage under current law.

People who wish to enter into marriages with people of the same gender may still enter into marriages. Those marriages will not be recognized by the state because the state has no interest in them. However, there is nothing illegal about them.

AJ Lynch said...

Looked at from the SWOT perspective, the variety and differences and range of opportunities in the 50 states, has been a great feature of America.

Libs and activist judges seek a central rule where our daily activities are overseen by elitists from the Beltway. It will severely damage the country's spirit- we should not expect the prez and Congress to kiss all our boo boos. To put it in a way , Althouse herself might put it : We are becoming a nation of pussies.

Fred4Pres said...

Mosque at Ground Zero opposed by Muslim who mother died that day there

I am just helping out A.W.

Seven Machos said...

We are becoming a nation of vast centralized power. There is nothing in the Constitution about gay marriage. Nothing. Therefore, it's left to the states or local communities. If Vermont wants gay marriage and Alabama doesn't, who cares?

Hagar said...

It remains to be seen if this judge's arguments are as persuasive to Anthony kennedy as Mr. Olson's.

AllenS said...

Please, I don't want anyone to say that Ted Olson is a conservative. He's a lawyer. If a murder hires Olson to get him off the hook, even though that person is guilty as hell, Olson, if he can detect a technicality will try to get the murderer free. That's what lawyers do. It wouldn't surprise me, that if the other side in this situation had more money to hire Olson, he would have a different story line.

Fred4Pres said...

Salamandyr said...
The part with Rush doesn't interest me much, but the part with Olsen does. Did Chris Wallace respond, "but the First Amendment was voted on, Ted". All the Amendments were voted on. But now that's too hard, that's too unfair.

8/9/10 8:43 AM


Spot on! I hope such questions are asked at the Supreme Court.

Fred4Pres said...

I guess I did not help out A.W., the link did not work.

dbp said...

As I understand it there is an actual right to free speech written in the US Constitution.

Where in this document is the right of a minority to impose its morality on the majority?

Seven Machos said...

Where in this document is the right of a minority to impose its morality on the majority?

In the penumbra, next to the emanations. You can find any right you want in that section, and that right gets imposed on the whole country. The Second Amendment is, of course, much more difficult to find.

Scott said...

I don't get the argument that giving some people liberty (as with gay marriage) constitutes oppressing others.

Chase said...

The decision by Judge Walker to strike down Prop 8 has several "findings of fact".

The most ridiculous "finding of fact" in the sad decision by Judge Walker (which will sadly turn the reputation of a previously distinguished jurist into an eventual law class laughing stock)

"Gender no longer forms an essential part of marriage."

He has decreed it as fact!!!

First question to law students:
(giggle)"How was the judge able to determine finding as 'fact'?"


The success of an Olson in the minds of those who agree with him is the false argument that he begins from - the assumption that gay marriage is a right that already exists but is being denied. And as is pointed out several times above, all that opponents have to do is simply point out that the "right" to same sex marriage is not in the Constituion. Mr Olsen knows this. And that is why he is such a slime.

Sad, sad, sad.

traditionalguy said...

Rush sees clearly here that sexual order must have a set authority behind its existence as do family, government and church. The act of wrecking one authority upon the assertion of individual's freedoms is also the wrecking of the restraints imposed in the other three institutions. But people cannot live without safely authority based in morality. Ergo, the Tyranny Rush fears is waiting to start up in the resulting vacuum.

Seven Machos said...

I don't get the argument that giving some people liberty (as with gay marriage) constitutes oppressing others.

People don't want it. It's as simple as that. There's no oppression. Why can't I open up a hardcore pornography store in any small town, or practice law without a license, or fuck goats?

AllenS said...

Scott,

The voters voted. Prop 8 was considered law. The people who voted, had their vote oppressed.

Dust Bunny Queen said...

Even if your assertion that the right to the word "marriage" or the right to rename a rose to horse's ass is in the Constitution, the California law did NOT deny any one any legal rights.

Civil unions provide that all couples, gay or heterosexual unions, have the same State conferred rights. There is no legal difference on the State level for Civil Unions or those who have a "Marriage" license. The Constitutional
Ammendment in the State of California only preserved the 'definition' of the word marriage as being between a man and a woman. It did NOT change any legal rights or deprive anyone of any civil rights.

If a religious institution decides it wants to do so, it can perform a non secular "marriage" ceremony for anyone....and now...any things. The "church" is separate from the state and as such the Government has no business being involved in marriage.

The Federal Government and the IRS are the parties that are legally discriminating. California was very careful, as in Arizona, not to discriminate.

The State cannot legislate moral opinion, nor can it legislate approval. Those things are part of cultural change. Cultural change comes slowly and generally without huge pushback from those who must accept change unless there is the perception that the 'will of the people' is being twarted and that change is being crammed down our throats.

The answer is to remove the State from the position of sanctioning marriage and remove ALL benefits that the GOVERNMENT, Federal and States, confer on those who hold a marriage license.

I could give two shits whether gays get "married" or not. I do care about the government overstepping and overturning the democratic procedures and votes of the people because the vote wasn't "popular".

Chase said...

I don't get the argument that giving some people liberty (as with gay marriage) constitutes oppressing others.

You don't have to Scott. But if I and others feel that having the state recognizing anything other than man-woman marriage dilutes the value of mine and others marriages, then why should you and others get to make decisions contrary to this for the rest of us?

Matthew said...

I agree with Andrew "Dice" Clay, vis-a-vis Gay Rights:

"...10% off of Vaseline, now get back in the f*ckin' closet...."

Seriously, I've known enough Gay Men(Wall Street is absolutely lousy with them, you know)to believe that the whole issue of Gay Marriage has little-to-nothing to do with "rights".

There's an economic factor -- sharing benefits, and tax breaks.

It's about people who forget to write wills, or who don't make certain provisions for their medical care.

There's the fatuous notion of "self-esteem" and "being accepted for who you are" as being a human right.

Some would argue that it's simply an expression of Love, and why should gays be denied that right of expression? But really, who is denying them that? They're being denied a special legal status that is concerned, mostly, with safeguarding the rights, provenance and inheritance of PROGENY...Something Gays can't produce on their own,left to their own devices.

But ultimately, Gay Marriage, I think, is all about some mentally-deficient doofus who feels he can't get enough attention (it's why he's Gay in the first place,you know) wanting to live out his Cinderalla fanstasy. For some, it's not even that; it's yet another oppoprtunity to give the society that "hates" them the middle finger.

We don't hate you, some are just disgusted by you, and others (like me) don't give a damn about what you do in the proivacy of your bedrooms; just respect my right not to have to hear about it, please?

In the meantime, I don't think it's a good idea to destroy the Constitution, or our institutions, just because someone wants to pretend they're something they're not.

Seven Machos said...

The reason we extend tax benefits and various other benefits to married people is because we want people who are going to be having sex to have a corporate unit that has proven over time to benefit children and we want the transfer of property to those children to be smooth and predictable.

What other interest does the state have in marriage?

dbp said...

" Scott said...
I don't get the argument that giving some people liberty (as with gay marriage) constitutes oppressing others."

Homosexual people in California have long had the right to lead whatever way of life they want. The demand is that everyone is required to accept the legitimacy of such lifestyles. There are real financial benefits as well.

John Althouse Cohen said...

I just don't agree that 1) the constitution protects SSM (as opposed to it's clear and unequivocal protection of free speech),

Lyssa, the Constitution's protection of free speech is not nearly as clear as you seem to think.

I took a law-school course in the First Amendment. On the first day of class, the professor asked, "How many of you believe that when the First Amendment says, 'Congress shall make no law ... abridging the freedom of speech," it literally means "NO LAW"?

I proudly raised my hand high. The prof said, "Oh, John, I'm so glad!" Why was he glad? Because he knew that for the rest of the semester, he would prove me wrong over and over.

I was wrong.

The text alone of the provision cannot resolve the interesting cases. It's no surprise that the drafters of the Constitution, being smart people, drafted it broadly enough to be applied with flexibility, based on human experience and judgment.

I know that some people find this concept of the law to be unsavory and too wishy-washy. But that's how the Constitution is written, no matter what you or I or Rush Limbaugh thinks of it.

The First Amendment ends up being very unclear and equivocal when you look at all the close cases.

"Speech" doesn't literally mean "speech" -- otherwise writing wouldn't be protected.

Well, the writing example is so uncontroversial that you might think that's the one exception to clarity and literalism in the Amendment. But what about nude dancing? Flag burning? Are those "speech"? They are expressive, so maybe they're speech. But almost anything someone does could be viewed as "expressive," so maybe this view would prove too much.

And then there are the innumerable cases where the conduct in question is clearly "speech" (taking it as a given that writing is speech), but there are plausible arguments for prohibiting it. Libel and slander. Deliberately inciting a crowd to imminent violence through a speech. Nazis marching in a Jewish neighborhood. Going to court proceedings wearing a jacket with profanity emblazoned on it. Telling a blind man it's safe to walk over there, when really you're directing him to walk off a cliff. All of contract law is based on delivering legal consequences for things people say. These are just a few examples off the top of my head.

So, we can get rid of the idea that the text of the First Amendment is clear. It sets forth a general principle that requires interpretation and application to specific contexts. This, of course, leads to differences of opinion -- but that doesn't mean that one side doesn't have a better interpretation than the other.

Another phrase that's like that is: "equal protection of the laws." The argument, based on existing case law, that this guarantees people of the same sex to marry each other, is at least as straightforward as a lot of the First Amendment case law.

John Althouse Cohen said...

Sorry for the multiple comments. Browser malfunction.

Seven Machos said...

equal protection of the laws

You should have taken a class in this as well.

slarrow said...

Rush isn't being incoherent. He's pointing out that people are indulging in faux bravery so they can feel better about themselves.

Marriage isn't set up to discriminate against homosexuals and never has been. It simply has never considered them. I'm not aware of any marriage laws in the U.S. that allow 8-year-olds to marry one another. Does that mean that marriage has a long discriminatory history of hating children? Of course not. It just means that marriage isn't about children who want to play pretend, and it isn't about people who want social legitimacy for homosexual sex. (And that's what this is all about--the "rights" issue begs the question in order to make moral opposition to the practice socially illegitimate.)

But people who oppose homosexual marriage are, by and large, good and reasonable people who don't murder their opponents. Islamic fanatics who hate gays do murder their opponents. People who want to feel brave but not not necessarily be brave choose the soft target. Don't see how that's incoherent of Rush at all.

rhhardin said...

The Constitution says something about free speech.

It's silent on gay marriage.

If any old inference is allowed, then there is no Constitution.

If you want gay marriage, argue for hit. Convince people.

Not some asshole judge.

A.W. said...

Fred

I agree with a lot of what you said, but I have to disagree with this:

> It was not about gender, since we needed the 19th amendment to guarantee women the vote.

Disagree deeply on that. I mean by that logic, we could say that the 14th A was not about race, because we needed the 15th Amendment to guarantee black people the right to vote (technically to outlaw discrimination in the vote based on race). I think the 15th Amendment is better read as proof that the 14th Amendment isn’t about voting rights at all. But it was definitely about race, and I think there is some very stong historical evidence that the founders would have wanted gender to stop being used as a proxy for many things.

When introducing the original draft of the equal protection clause, Thaddeus Stevens said it was his dream that “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” That is imho the most sensible explanation for what they thought they were doing back then and applied today, I think they would say that just as you don’t judge merit en masse with black people, you should not judge merit en masse with women. You should take them one at a time, and if the woman is smart enough, strong enough, whatever is needed for the work, she should be allowed to do it.

By comparsion, gay sex is conduct.

I think one of the big mysteries people struggle with, when it comes to the founders of the 14th Amendment is that they were very often racists (although Stevens was not), and even more often sexists (although Stevens might not have been that, either, at that point in time). but I think we fundamentally misunderstand them. The way to think of it is that they saw life as being like a 100 meter dash. You might see a really fat man come up to the finish line next to a slim and athletic man. And you might think, “there is no way in hell the fat man wins.” And you would usually be right.

But does that mean you don’t even let the fat man try. Or that you rig the game against him so he REALLY doesn’t have a chance. No. you give him a chance to prove you wrong, but you don’t express too much surprise when he fails.

(cont)

A.W. said...

Fred

(cont)

I think the best proof of that is the little explored area of disability rights in that era. The doorkeeper to the House of Representatives, for instance, at the founding of the 14th Amendment was a man with no hands. The head of the freedman’s bureau was a man who lost his right arm in the battle of seven pines. More remarkable than that they didn’t even think that two working arms was a bone fide occupational qualification for generals because after he lost his arm, he went on to fight in many of the major battles such as Gettysburg and Chancellorsville. And in the midst of war and the budgetary restraints found in the time, they still found the money to start Gallaudet University, the deaf university here in Washington, D.C. One congressman stood up and said it was ridiculous to offer deaf people a degree like what you would get at Harvard, and another stood up and said, the deaf should have the chance to get it, and of course what they will make of that degree will depend largely on them. The second argument won.

So I would not sell the founders so short. But yes, reading gay rights of any kind is just ridiculous.

In Dartmouth College v. Woodward, Chief Justice John Marshall posited a very expansive test for constitutional inclusion:

“It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.”

I believe that gay marriage fails that test spectacularly. I believe that if you went back in time and convinced the founders that this would occur, that they would have changed it to prevent that outcome. They were evangelical Christians. They did not believe in live and let live.

MadisonMan said...

morons like Olson

Why is he a moron? Because he holds a view counter to your own?

If Vermont wants gay marriage and Alabama doesn't, who cares?

The gay couple who marries in Vermont and then has to move to Alabama? Should a contract that is recognized in Vermont be valid in Alabama?

lyssalovelyredhead said...

John Althouse Cohen, you're right that the First Amendment, when you get down to the nuances of it, does not clearly and unequivocally protect all speech always. I had a similar experience to the one that you described in my Constitutional Law class when I declared myself a "free speech absolutist." (However, I don't think that my professor proved me wrong, nor do I think that he thought that he would or did.)

So, yes, I perhaps overstated my case to make a point. But the point still stands- the Constitution clearly protects free speech. It is clear and unequivocal that that is the intent, the goal. We wrestle over the nuances of what that means, but the theory, principle, and purpose is clear.

Equal protection of the laws is not so clear. The law was written to protect blacks against oppression of the rights and legal protections that should come with citizenship. For gay marriage, there is no right to be protected; such a right is found no where in the Constitution, common law, or natural law. There is no protection that is being denied- gays may wish for the state to call their relationship marriage, but they are still able to, under prop 8, have a relationship that they want, get the same benefits, and call the relationship what they want. (I think that the much less celebrated DOMA case going on is much more persuasive, in that sense.)

I'm all for gay marriage- to adopt a phrase from Glenn Reynolds, I want happily married gays with a closet full of assault rifles. I just don't want the Constitution mangled in the process.

Seven Machos said...

Should a contract that is recognized in Vermont be valid in Alabama?

No. This happens all the time. Constantly. If you have a contract in Vermont and you are from Vermont and the other side is from Vermont, and the substance of the contract is in Vermont, good luck getting a court in Alabama to hear your case. Let me know how that works out for you.

Matthew said...

Should a contract that is recognized in Vermont be valid in Alabama?


You obviously have never purchased insurance -- of any kind -- nor have you had your bank simply move HQ to another state to take advantage of looser usury laws to charge more interest on it's credit card.

"Contracts" that are valid in one state are routinely disregarded by others.

Fred4Pres said...

JAC, I agree with that free speech, under the constitution, is not absolute (although ironically it is often conservative justices like Rehnquist and Scalia who have lead the fight on protecting free speech).

But I am pretty darn sure that when the 14th amendment was passed, it was not intended to for the purposes this court just found.

A.W. said...

Fred

> I am just helping out A.W.

Thanks for the try.

AllenS

> Please, I don't want anyone to say that Ted Olson is a conservative. He's a lawyer

My understanding is that Olson is taking this on out of personal conviction. So I don’t think its right to say he is being a mercenary or prostitute in his beliefs. He is doing it for love, if you will.

Of course if I was a really paranoid man, I would think he was trying to kickstart the movement to put in a constitutional amendment banning gay marriage.

Scott

> I don't get the argument that giving some people liberty (as with gay marriage) constitutes oppressing others

Well, if I was a person in cali who voted for prop 8, I would feel pretty oppressed right now, given that my democratic vote has been overridden, and without lawful cause.

John Cohen

> I proudly raised my hand high. The prof said, "Oh, John, I'm so glad!" Why was he glad? Because he knew that for the rest of the semester, he would prove me wrong over and over.

Well, I am curious. Did he prove that the free speech clause doesn’t apply to things you thought might be speech (i.e. defamation), or did he prove lots and lost of straight up viewpoint based speech suppression?

Scott M said...

But I am pretty darn sure that when the 14th amendment was passed, it was not intended to for the purposes this court just found.

I agree with the POV that it will eventually be legal in all 50 states, but that I don't want the Constitution mangled to get there. However, Fred, isn't the obvious retort to your comment there that there's no way they could have foreseen the internet and, frankly, all forms of multimedia?

lyssalovelyredhead said...

So I would not sell the founders so short. But yes, reading gay rights of any kind is just ridiculous.

A.W., I loved your disability comparison. But I do think you're off a little on this. Equal protection would mean that gays would have the right to exist, gays would have the same rights to, say, demonstrate, petition for redress of greivances, assemble, etc. These are all "gay rights" that fall under equal protection.

I could even be persuaded that gay sex is protected under that clause, if I can be convinced that that expressing one's sexuality is so closely aligned with simply being human that to deny it would be to effectively deny the right to *be*. (Of course, that would open a lot of other ugly doors, but I think one would have to consider the consent of the other person involved as well. I'm a little on the fence, but that's the direction I'm leaning towards.)

State recognition of gay marriage, particularly when there is a civil union option that is the same in all but name, is a different can of worms, for reasons that I indicated in my response to JAC.

edutcher said...

This 'right' has only been around for a couple of years in Western society. It was last seen in Rome when the Empire was crumbling, IIRC, and seems to be a sign of a decadent (as in decaying) nation.

Rush is absolutely right about the Lefties using wedge issues to open up major changes. The years since WWII are replete with examples of how the death of a Thousand Cuts has been implemented.

AllenS said...

Please, I don't want anyone to say that Ted Olson is a conservative. He's a lawyer. If a murder hires Olson to get him off the hook, even though that person is guilty as hell, Olson, if he can detect a technicality will try to get the murderer free. That's what lawyers do. It wouldn't surprise me, that if the other side in this situation had more money to hire Olson, he would have a different story line.

Excellent point. Anybody know who he's working for these days?

John Althouse Cohen said...

I just don't agree that 1) the constitution protects SSM (as opposed to it's clear and unequivocal protection of free speech),

Lyssa, the Constitution's protection of free speech is not nearly as clear as you seem to think.

I took a law-school course in the First Amendment. On the first day of class, the professor asked, "How many of you believe that when the First Amendment says, 'Congress shall make no law ... abridging the freedom of speech," it literally means "NO LAW"?

I proudly raised my hand high. The prof said, "Oh, John, I'm so glad!" Why was he glad? Because he knew that for the rest of the semester, he would prove me wrong over and over.


Do you really believe the people who wrote the Bill of Rights foresaw John Marshall's colossal ego and the mess that is conlaw?

My own feeling is that the Constitution and Bill of Rights were intended to be read, understood, and implemented as is, without the convoluted and often self-serving "interpretation" that has been imposed upon us.

PS Trying to squelch Conservatives by using Olson's name doesn't mean much. Unlike The Left, Conservatives and Libertarians do their own thinking and aren't fed talking points from POTUS, HuffPo, or Kos.

PPS "Sorry for the multiple comments. Browser malfunction." John, the comment box is only a buffer that takes so many characters. After that, it will barf on you. Not the browser's fault. If you want a long statement, plan on spanning over multiple comments.

Scott said...

"Why can't I open up a hardcore pornography store in any small town..."

The SCOTUS has always supported reasonable time, place, and manner restrictions on First Amendment rights. It seems inapposite to the issue of gay marriage, but hey, I'm not the lawyer here. You're comparing gay marriage as being something as oppressive as a porn store on a highway? Give us all a hypothetical example of this kind of oppression.

"...or practice law without a license..."

Okay, how does gay marriage in any way relate to regulation of professions? (If marriage was a profession, Britney Spears would have her license revoked.)

"...or fuck goats?"

Can I watch? :)

These are all glib, straw dog arguments that you present.

If you have a somewhat more concrete example of how you might personally be oppressed by two adult gay men or lesbians marrying each other and having rights equivalent to Britney Spears' in marriage, it might be more helpful.

MadisonMan said...

Matthew, Seven, thanks for the response (IANAL, obviously :) )

Scott M said...

Anyone else struck by how even-tempered and moderate this discussion is, currently, sans the usual cast of thread carpet-bombers?

I know, I'm jinxing us, but I thought it worthy of mention.

edutcher said...
This comment has been removed by the author.
sunsong said...

There once was a gay marriage ruling
Over which the right wingers were drooling
Dictatorship's here!
They said, but their fear
Showed a lack of constitutional schooling


- From a New Orlean’s paper

MadisonMan said...

the comment box is only a buffer that takes so many characters

Really? I guess I've never tested it by being wordy. But that's good to know.

It seems like a buffer (I fatfingered that as bugger! LOL) that overflows and causes multiple posts is a bit of a bug though.

wv: bless. My life.

A.W. said...

Scott

> there's no way they could have foreseen the internet and, frankly, all forms of multimedia?

Are you saying that the founders didn’t believe there were gay people back then?

You are equating a technological advance with a change in attitude. If changes in attitude change the constitution, then I guess Plessy v. Fergusson was rightly decided. And as of 1954, Brown v. Board of Education was wrongly decided. One of the big assumptions of people who make that argument is that public opinion goes in only one direction. People don’t remember that the majority of the muslim world was once a center for learning and enlightment. People don’t remember that they had a black lt. governor of south Carolina, before the Ku Klux took over. People don’t remember that Germany had a republic, where gay people could live with a great deal of openness, before the Nazis came in. The people who wrote the Pakistan constitution stated that there would be freedom of religion. And yet today if I set foot in that country, I stand a very real chance of being executed for hosting a site that blasphemed their prophet (I participated in everyone draw mohammed day).

The idea that a constitution’s meaning should change merely because attitudes have changed is dangerous.

As for tech changes, I think the simplest way to look at it is this. all powers not granted to the federal government is denied. That is the import of the 9th and 10th amendments. And for that reason the government actually has no business regulating TV, or the internet, until and unless the constitution is amended, except perhaps in a purely commercial sense under the commerce clause.

Seven Machos said...

There is an issue here, of course, where the laws and rulings of one state must be recognized by another state.

But the laws of California are that gay marriage is not recognized. Now, the federal government wants to force a change in that. Then, you propose to force other states to adhere.

It's rank authoritarianism. It's disgusting.

former law student said...

The requirements for marriage have historically been set by the state, and they do in fact vary by state. My grandparents' marriage, "valid and recognized" in California, would make them felons in Wisconsin, liable for a prison term of up to seven years and six months.

Scott M said...

@FLS

The requirements for marriage have historically been set by the state, and they do in fact vary by state. My grandparents' marriage, "valid and recognized" in California, would make them felons in Wisconsin, liable for a prison term of up to seven years and six months.

How so? Age difference at the time?

Seven Machos said...

My arguments are in no way straw. The fact that you call them ridiculous merely shows how ridiculous the case for recognition of gay marriage against the will of the people is.

The issue here is not equal protection. It's allowing people to govern themselves as they see fit in light of the obvious fact that there is no federal of constitutional edict preventing people to govern themselves.

Why can a local government restrict free speech but not determine which marriages to recognize? Why is recognition of marriage more vital than free speech?

A.W. said...

Lyssa

> A.W., I loved your disability comparison. But I do think you're off a little on this. Equal protection would mean that gays would have the right to exist, gays would have the same rights to, say, demonstrate, petition for redress of greivances, assemble, etc. These are all "gay rights" that fall under equal protection.

Actually I left out the most pertinent disability-related fact in the 14th Amendment. Stevens, the guy who wrote the original draft of the 14th amendment was himself disabled, and faced a lot of prejudice and discrimination as a result, as idiotic as that was.

But to your point the right to life, the right to speech, assembly, petitition have nothing to do with equal protection. They are protect by the bill of rights, the DPC and the cruel and unusual clause (bearing in mind I am one of those luddites who believes that incorporation properly belongs in the domain of the privileges and immunities clause).

> I could even be persuaded that gay sex is protected under that clause, if I can be convinced that that expressing one's sexuality is so closely aligned with simply being human that to deny it would be to effectively deny the right to *be*.

In what sense, though? In terms of “humans have always done it throughout history”? Well, of course they have. But you could say the same about murder. Or that they have no choice in the matter—except what if we find a thieving gene, or a murder gene? Then we can’t ban those two activities? I am really struggling to understand what you mean by that.

Look, I never want to see a gay person go to jail just for gay sex. But the constitution leaves those kinds of issues up to the good sense of the American people. The true constitution allows for some really sucky things. Like our criminal national debt. Nothing unconstitutional about it, just monumentally stupid.

wv: mullest. Definition: the most awesome mullet. "Did you see that rerun of Miami Vice. Johnson is the mullest."

A.W. said...

former

> My grandparents' marriage, "valid and recognized" in California, would make them felons in Wisconsin, liable for a prison term of up to seven years and six months

i am curious, now. why is that?

former law student said...

Nobody related more closely than second cousins may marry in Wisconsin; such marriages are Class F felonies. (There is an age or sterility exception.) California permits even first cousins to marry.

traditionalguy said...

Heterosexual marriage is a social institution that protects and also rewards the heavy lifters hat live as a family unit for 20+ child rearing years. Homosexual marriage is all the fun parts and benefits with none of the work. So homosexual is now a better life style. What could possibly go wrong with that?

Seven Machos said...

But the constitution leaves those kinds of issues up to the good sense of the American people. The true constitution allows for some really sucky things.

Elena Kagan got pilloried for this but she was right.

Scott M said...

What could possibly go wrong with that?

I dunno, maybe the overwhelming burden gay men (not gay women) will place on the no-fault divorce system?

(the above comment is only about 50% snark)

AC245 said...

First, I'd like to add my support to Salamandyr's point that the 1st Amendment was voted on, and to A.W.'s point differentiating the enumerated and explicit rights contained in the Constitution versus the penumbra/emanation/squint-hard-and-you-might-see-them "rights."

Next, two more* questions (which I fully expect to go unaddressed) for the pro-Walker contingent:

1. If marriage is a fundamental right, guaranteed by the federal constitution, how can the government withdraw it for all people, as some people on both sides have suggested as a compromise? Could the government withdraw the right of free speech, as long as it withdrew it from everyone?

2. If marriage is a fundamental right, like healthcare or voting, can the government force you to marry someone and punish you - with a tax, for example - if you refuse? (Of course, a government-run exchange of unmatched singles would need to be established to pair up people who couldn't or didn't want to choose a partner on their own.)

And finally, my earlier *open invitation to anyone supporting Walker's argument to explain why bans against polygamy / polyandry / polyamory / multiple marriages should not also be considered unconstitutional under his ruling is still, er, open.

Seven Machos said...

the overwhelming burden gay men (not gay women) will place on the no-fault divorce system

Rational basis right here.

A.W. said...

btw, on the mosque, let's play a game... read this passage:

> NEW YORK - Charges of racism, sexism, and religious discrimination filled the air this afternoon outside the just-completed Cordoba House, the gleaming new $100 million 15 story mosque and Islamic cultural center near the ruins of New York's World Trade Center, following a tense 5-hour standoff prompted by the mosque's refusal to host a wedding between a lesbian African-American woman and her blind white transgendered partner.

> Over 200 NYPD officers and multicultural crisis counselors were bused to the site to quell the simmering 17-way tensions between Muslim, Black, LGBT, immigrant, disabled, and lawsuit community activists. The scene was punctuated by outbursts of pushing and shoving, including a brief confused intramural scuffle among members of Reverend Louis Farrakan's Nation of Islam, but the only serious injuries reported was a hernia suffered by a legal aide distributing plaintiff's briefs.

Now here is my question. how long did you have to go before you figured out this was a parody?

http://iowahawk.typepad.com/iowahawk/2010/08/wedgeapalooza.html

A.W. said...

Seven

> Elena Kagan got pilloried for this but she was right

No, she was not. The Federal Government is not granted the power to tell me to eat my damn vegetables.

She was only right on the narrow point that the fact a law is stupid is not proof it is unconstitutional. Agreed, but that proposed law was unconstitutional.

Matthew said...

The Constitution says that you DON'T have the right to yell "FIRE!" in a crowded MOVIE HOUSE, without there being a valid reason.

However,the Consitution is SILENT about whether the opposite:

Do you have the right to yell "MOVIE!" in a crowded FIREHOUSE -- just because you want to?

Since, the Consitution doesn't --either expressly, or thorugh the convoluted logic of a Supreme Court justice -- forbid it, therefore, it should be allowed.

Whether shouting "Movie!" ina Crowded firehouse serves any greater good, or even makes sense, is beside the point. It can be assumed that somewhere, sometime, someone will want to do it, and if the First Amendment can protect Nazis and Islamofascists, why not some guy who wants to wear a dress?

This is a philosophical argument that the lawyers will be happy to have; it's gives them yet one more opportunity to get paid for fucking up society.

The other factors surrounding SSM (benefits, housing,medical issues, probate law) are the real issues: once the first hurdle (recognizing SSM) is overcome, the real work of designating gays a legally-protected species with rights over-and-above those enumerated in the Constitution, can begin.

GMay said...

"Why is he a moron? Because he holds a view counter to your own?"

Judging by AA's characterization of Rush's point here, it looks like we can now use "incoherent" in this context as well.

garage mahal said...

Always wondered if you could yell "NO FIRE!!!" in a crowded theater. Or "FIRE!!!" in an empty theater.

downtownlad said...

This has zero chance of being upheld by the Supreme Court.

The real question is whether or not the right wing uses this as a chance to overturn Loving V. Virginia and force Clarence Thomas to have his marriage declared non-existent.

How soon until Mississippi and Alabama pass laws saying that gay people are not allowed to vote?

Scott said...

"...the overwhelming burden gay men (not gay women) will place on the no-fault divorce system..."

I call bullshit. If you buy the most liberal estimate that ten percent of males are homosexual, then you're talking a burden increase of five percent at most. Of course, that estimate is speculative too, but it's more rational than your "rational basis".

Five percent is not "overwhelming." And you're not factoring in the reduction of burden on the probate court system. Gay marriage might actually mean a net reduction in court burden.

See, anyone can play that silly-ass game.

Palladian said...

Jesus, are we gonna flog this topic again?

Scott M said...

See, anyone can play that silly-ass game.

As previously disclaimed, it's only 50% silly.

AC245 said...

Since, the Consitution doesn't --either expressly, or thorugh the convoluted logic of a Supreme Court justice -- forbid it, therefore, it should be allowed.

You don't seem familiar with the Tenth Amendment, Matthew. Let me help you out:

Since, the Constitution doesn't --either expressly, or through the convoluted logic of a Supreme Court justice -- forbid it, therefore, the power to allow or deny it is reserved to the States respectively, or to the people.

A.W. said...

Former

Mmm, so if you were watching Jeff Foxworthy and he gives his redneck test... and he says, "if your family tree doesn't have branches... you just might be a redneck!" You would be going, "gee, i guess i must be one!"

Just teasing.

Jim Howard said...

It's pretty clear to me that gay marriage is not addressed in the 14th Amendment or anywhere else in the Constitution.

That means it falls under the 10th Amendment, which leaves this kind of issue to the people or the states.

This terrible ruling has done huge damage to the Constitution. Rush is correct, this attack on the Constitution is the reason the liberals are cheering this partisan judge.

edutcher said...
This comment has been removed by the author.
El Pollo Real said...

Palladian wrote: Jesus, are we gonna flog this topic again?

I wish we could just vote on it but Althouse runs the show here by fiat. :)

Scott M said...

@edutcher

m

Very well said.

Seven Machos said...

Palladian -- We'd flog it anyway. The Seven Machos Law of Althouse clearly states that as any thread grows in length, the odds of it devolving into a discussion about gay marriage approach one.

AC245 said...

Palladian, if you don't want to discuss the topic, there are options other than you dumping complaints into the thread in an attempt to shut other people up. Like, go take a walk, or draw a sketch, or participate in another thread that does interest you.

Don't turn into GasRage/HDHouse/AlphaLiberal/Jeremy.

John said...

The gay marraige issue is about state coercion not freedom. Gays, unlike say polygamists, are already free to be married and hold themselves out as such. What they don't have is state sanction of such marriage. And with state sanction comes the ability to force people to recognize your relationship. If gays are married under state law, a Catholic hospital that has a spousal support group can't deny entry to gay partners. A company that offers family insurance has to give it to a gay partner by force of law.

What is disappointing about this debate is the Libertarians. I expect this from liberals. But libertarians are supposed to be against state coercion. But they have jumped on this band wagon with no thought for its future precedence because culture trumps reason.

AllenS said...

Three wrongs do not make a right.

AC245 said...

Three wrongs do not make a right.

But three lefts do.

Scott M said...

@John

But libertarians are supposed to be against state coercion. But they have jumped on this band wagon with no thought for its future precedence because culture trumps reason.

Strongly disagree with this, speaking as a card-carrying Libertarian. If you go back over the previous two 150+ comment threads on this topic, you will find quite outspoken support for SSM, if not this ruling in the manner it was reached. The two things can be separate, after all. In the active political circles I run in, I don't of any Libertarians that don't support SSM on purely the government overreach angle. While not necessarily thrilled about gay rights in general and their seemingly endless need for acceptance instead of tolerance, I left the GOP in 2004 after Bush used the matter as a means to get re-elected. In hindsight, he was the lesser of two evils over Kerry, but that's another thread.

Matthew said...

@AC245:

I forgot the question marks at the end of that sentence.

It should have read:

"Since, the Consitution doesn't --either expressly, or thorugh the convoluted logic of a Supreme Court justice -- forbid it, therefore, it should be allowed???"

A.W. said...

Downtowntard

> The real question is whether or not the right wing uses this as a chance to overturn Loving V. Virginia and force Clarence Thomas to have his marriage declared non-existent.

once again confusing what was actually in the constitution which what was implied into it. the constitution was written explicitly to guard against racial discrimination. So then the dartmouth applies.

Scott M said...

Three wrongs do not make a right.

...and three wongs wrap up the gay marriage and polygamy issue in one big spoon.

John said...

Scott M,

If gay people achieve state sanctioned marriage via the political process, then that is fine. That is how it is supposed to work. But if they get it via judicial fiat, it sets a terrible precedent for the future.

And the Libertarians at Reason think it is just a ok for a judge to decide something is a "right" over the objection of most of the voters.

A.W. said...

> Rush is correct, this attack on the Constitution is the reason the liberals are cheering this partisan judge.

I'll disagree with that. i do think that liberals really just want gay people to be married and happy. they see it, ironically enough, as a moral issue.

which is why they stare uncomprehending when you say that this ruling applies to bestiality or gay incest.

former law student said...

The Seven Machos Law of Althouse clearly states that as any thread grows in length, the odds of it devolving into a discussion about gay marriage approach one.


If Willow Palin turned out to be in love with a lesbian we'd see an Althouse thread approaching infinity.

slarrow said...

I'll vote on Scott M.'s side. I'm a conservative, not a libertarian, but I've seen plenty of nuanced "want the policy, vigorously oppose the method" argumentation on this board. Can't speak for the folks at Reason, but I have seen a diversity of approaches to this question from my perspective.

Seven Machos said...

"want the policy, vigorously oppose the method"

Close. It's like this: don't really care about the policy, vigorously oppose the judicial branch usurping the role of legislators and citizens in what is ostensibly a democracy where all power emanates from the citizens.

You know, We the People and all that stupid shit.

garage mahal said...

Palladian, you didn't want to plumb the depths of AC245's wonderfully original analogous challenge that goes something like "Why can't something illegal like polygamy / polyandry / polyamory be legal now, if gays have the right to marry?".

Furthermore, what's next, marrying your pet rock????? Or worse, 3 pet rocks??

Ziiiiiiiiiing!

Scott said...

"Why can a local government restrict free speech but not determine which marriages to recognize? Why is recognition of marriage more vital than free speech?"

This is not apples and oranges. This is apples and tennis balls.

Setting aside a discussion of DOMA, are you aware of how gay couples don't have the same rights as (presumably) straight couples have with respect to child custody, spousal rights with respect to court proceedings, HIPAA, and estates? Lacking these rights makes it harder to maintain same-sex relationships peacably.

Do you accept this state of affairs?

These are among the core issues of gay marriage. It's not about first amendment rights at all.

slarrow said...
This comment has been removed by the author.
Seven Machos said...

Scott -- So what? People don't want to extend those rights to gay marriages in their communities. I know where in the Constitution and federal law I can find support for prohibiting discrimination based on race and gender. There are laws against it made by legislatures and there is text about race in the Constitution. Where do you find it based on who you wish to marry?

Pass a law if you want a law. Forcing a law upon people without popular support is not what we do in a democratic society. It is draconian and wrong.

slarrow said...

No argument from me, Seven Machos. Didn't think that ALL libertarians here were arguing "want policy, hate process", but enough are to undercut the original generalization. Apologies for the slightly broad brush.

Scott said...

Two separate issues. As I stated in a comment in another post that you apparently missed, I'm not happy that the courts are deciding this, for the same reason that Roe v. Wade was poorly considered.

But status equivalent to marriage for same-sex couples is a positive good in a just society, and needs to happen. And it will.

Dust Bunny Queen said...

If Willow Palin turned out to be in love with a lesbian we'd see an Althouse thread approaching infinity.

Willow Palin can be in love with anyone she wants.

She can cohabitate with anyone she wants.

She can have a ceremony celebrating her union and in California can register for a Civil Union to obtain all the perks and benefits that married couples can have that the STATE can give.

She can call her significant other a husband or wife, depending on whether she is a top or bottom (what is the lesbian version of this?)

She can make a will giving all of her worldy possessions to her 'spouse'.

She can hold property in JWROS or Joint Tennancy with anyone she wants.

She isn't denied access to her 'spouse' for medical visitation and she can desigate anyone she wants as her medical decision maker in a medical directive.

Just like straight couples, she can adopt children if approved.

So far, how is she being discriminated against by the State of California?

If you want to bring up inheritance taxes, exemptions, marital deductions and social security rights......take it up with the Feds.

Since gays have every legal right that the State can confer upon them, where is the discrimination?

Kirby Olson said...

Matriarchy is tyranny.

It's like daycamp when all the little girls whisper to one girl, "We decided we hated you the most," and then smile at her.

Patriarchy allows for true difference of opinion.

Matriarchy insists on one person tyranny, in which everyone must think and act alike. It gets rid of everything hetero.

Seven Machos said...

It's a bad idea to force laws on people who don't want them in a democracy. It's the kind of thing that will eventually tear at the fabric of the country.

Scott M said...

Palladian, you didn't want to plumb the depths of AC245's wonderfully original analogous challenge that goes something like "Why can't something illegal like polygamy / polyandry / polyamory be legal now, if gays have the right to marry?".

Bringing the gravitas as always, GM. Do you really want to rehash why the point of view you're flaccid attempt at snark falls short? We've done this to death and the pro-SSM/anti-polygamy camp has yet to put up good reason for their POV.

sunsong said...

Ted Olson has it right, imo. Since the Supreme Court determined in loving v virginia that marriage is a fundamental right - there is no justification for denying gays the same rights as everyone else.

It's not rocket science.

The judiciary is a co-equal branch of government. It is a check on the executive and the legislative - which do overreach. The idea that the judiciary should not rule on cases like this strikes me as odd. I suspect that if the same folks here who oppose this ruling *because* it was done by a judge - got a ruling on the mandate being unconstituional - they would think that that was a proper use of the judicial branch.

Paul Zrimsek said...

There's an internal split among libertarians and the libertarian-minded. Some do fall into the "want the policy, hate the process" camp; others have been wishing for a second Lochner era for a long time now. If judges were to follow Walker in thinking "rational basis" means "convincing basis", a lot of laws having nothing to do with marriage will be at risk.

Seven Machos said...

there is no justification for denying gays the same rights as everyone else

Which gays can't into the corporation of marriage as it is currently defined?

MadisonMan said...

If Willow Palin turned out to be in love with a lesbian we'd see an Althouse thread approaching infinity.

Especially if Andrew Sullivan commented on it.

garage mahal said...

We've done this to death and the pro-SSM/anti-polygamy camp has yet to put up good reason for their POV.

Let's start with polygamy is illegal. Being gay is not. One can easily work backwards from your argument and continually beat the question why interracial marriage IS legal? It wasn't traditional marriage for quite some time before it was ruled on at the Supreme Court.

Roux said...

So, if you can't define marriage as one man and one woman, then, what is the definition under law?

Seven Machos said...

Let's start with polygamy is illegal. Being gay is not.

Furthermore, gay people can marry other gay people of the same gender. It is not illegal. However, legislatures and citizens don't want to recognize those marriages.

Congratulations. Now you have the complete law as it stands. What's the constitutional issue?

Maguro said...

Furthermore, what's next, marrying your pet rock????? Or worse, 3 pet rocks??

Typical content-free snark from garage. Here's a challenge: Why don't you explain the legal/rational basis for Judge Walker to uphold anti-polygamy laws against a suit from a Muslim man and three women who would like to get married in accordance with the tenets of their culture? We're talking about 4 consenting adults, not a pet rock or a refrigerator. Why shouldn't they be allowed to express their love and devotion to each other in a polygamous marriage, just as people who come from monogamous cultures are permitted to do? Doesn't Equal Protection apply here as well?

Remember, now, our tradition of monogamy doesn't matter and neither does public sentiment against polygamy. There needs to be a rational basis for denying this right to this group of consenting adults. What is it?

A.W. said...

Sunsong

> The judiciary is a co-equal branch of government. It is a check on the executive and the legislative - which do overreach. The idea that the judiciary should not rule on cases like this strikes me as odd.

I don’t think anyone here would deny that judicial review should exist. What we are saying is that it should be based on whether a law—or in this case a state’s constitution—had to line up with the mere policy preferences of a judge.

> I suspect that if the same folks here who oppose this ruling *because* it was done by a judge - got a ruling on the mandate being unconstituional - they would think that that was a proper use of the judicial branch.

That’s not even a contradiction. In both cases we are arguing against federal power—either over state laws, or over our personal lives. How on earth do you square obamacare with roe? If roe v. wade means anything, it is our right to control our medical destiny. Well, obamacare says “no, that is our business.”

A.W. said...

btw, notice no one has even tried to refute my point. we pass laws on morality all the time.

AllenS said...

I think it's unconstitutional to deny women the right to charge money for sex.

Where is that law in the Constitution?

Calypso Facto said...

MM said: Especially if Andrew Sullivan commented on it.

....and he mentioned her breasts...

AllenS said...

And don't give me any of that it's in the state law bullshit. Not anymore.

Scott M said...

@GM

Typical content-free snark from garage. Here's a challenge: Why don't you explain the legal/rational basis for Judge Walker to uphold anti-polygamy laws against a suit from a Muslim man and three women who would like to get married in accordance with the tenets of their culture? We're talking about 4 consenting adults, not a pet rock or a refrigerator. Why shouldn't they be allowed to express their love and devotion to each other in a polygamous marriage, just as people who come from monogamous cultures are permitted to do? Doesn't Equal Protection apply here as well?

Remember, now, our tradition of monogamy doesn't matter and neither does public sentiment against polygamy. There needs to be a rational basis for denying this right to this group of consenting adults. What is it?


Maguro encapsulates the argument I and others have been putting forward for days now.

Your primary point that polygamy is currently illegal is moot. There is no reason for it to be. The first suit to be brought based on this judge's ruling should prove that well enough.

For the record, I'm not against polygamy any more than I'm against SSM. Frankly, I simply don't understand why so many on the left are against it.

Seven Machos said...

Remember, now, our tradition of monogamy doesn't matter and neither does public sentiment against polygamy. There needs to be a rational basis for denying this right to this group of consenting adults. What is it?

Societies that employ polygamy are totally fucked up. They have a bunch of young men with no one to fuck and plenty of hostile pent-up energy. The GDP of those places is a pittance.

AllenS said...

Just because some young men ain't gettin any doesn't mean that polygamy should be illegal. That's why it would be a good idea if women could openly prostitute themselves. Get it? There's an answer for every situation. Some people might not like the answers, but neither did the voters of CA like the judge's opinion.

Scott M said...

Observationally, Seven, I'd say you're correct. However, causality is a bitch. Besides, that would be what the liberals would call an unintended consequence. Sorta like the 1099 dust-up.

dbp said...

Scott said:

are you aware of how gay couples don't have the same rights as (presumably) straight couples have with respect to child custody

Child custody is based on being a parent, either biologically or by adoption.

To a heterosexual married couple it is assumed that the parents are both related to any children they have. This is (to say the least) not an assumption which could be made in a homosexual couple.

If homosexual marriage is allowed, would a woman be on the hook for child support if her wife has a child and they later divorce? Adoption may be a pain, but at least it assures that both partners were on-board with the decision to have kids.

former law student said...

They have a bunch of young men with no one to fuck

Polyandry would also be allowed, as it traditionally has been in India (I cited a recent NYT article the other day.) Imagine a two-income household where the mom was still able to stay at home. Spouse A would get the company of the wife on the evenings of M/W/F; spouse B would get T/T/S. They'd split Sundays.

lyssalovelyredhead said...

A.W. to me: In what sense, though? In terms of “humans have always done it throughout history”? Well, of course they have. But you could say the same about murder. Or that they have no choice in the matter—except what if we find a thieving gene, or a murder gene? Then we can’t ban those two activities? I am really struggling to understand what you mean by that.

I get it; I was trying to be brief since what I was saying was veering off-topic, but I see how it just came out confusing instead. This goes back to Lawrence (which was decided before I really discovered the concept of blogs!), and I'm still on the fence about it. The opinion I lean towards, that equal protection would protect gay sex (but not gay marriage) requires some assumptions that I lean towards, but doubt that many here would accept (and the fact that they are assumptions is why I'm still leaning and not sure).

First, I'm assuming homosexuality (in the orientation sense, not the action) is an immutable charactoristic. That is, the desire to have sex with someone of the same sex is something that can't be changed.

My second assumption is less obvious: That having sex is a really, really big deal in our human nature. I was a psych major, so I've spent some time with Freud, and his influence shows here. Thing is, sex is tied to procreation, and our evolutionary drive to procreate is enormous. (Obviously, there are some wires crossed there in gay sex, but I'm assuming that the drivers are the same even if the effect is not.)

Our sex drives are obviously secondary to the drives to do things that maintain life, like eat and drink, but I'm assuming that they are only just secondary to them, and that there are no other non-life-maintaining drives that come close (except, perhaps, the urge to read Althouse when you're supposed to be working). Therefore, the right to have sex with your preferred type of partner is such an enormous drive that, if you deny that, you are approaching denying the person's right to exist, or to be fully human. (cont.)

lyssalovelyredhead said...

(cont.)

I realize that this is not a good comparison, but the best that I can come up with is a hypothetical of what if the gov't required every food to be prepared with bacon drippings (mmm, bacon drippings). It would effectively deny strict Jews and Muslims the right to eat (within the confines of their beliefs), which would effectively deny their right to be. It's a terrible comparison, but the best I've got, because there is simply no other drive that compares to the sex drive.

At this point, you can feel free to point out the irony that my religious affiliation, Catholicism, makes demands on its clergy that clearly deny the necessity of this drive. I'm not sure how I feel about that, other than to point out that the clergy members enter into it freely.

You can also point out that my opinion here, taken to its logical extreme, could also support sexual practices that are unacceptable, such as pedophilia, if we assume that these desires are immutable (an assumption that I think has some support). In that regards, I would say that, like freedom of speech, you have to consider the rights of others as well. A person's right not to have sex forced upon them outweighs any rights that another might have. (Along the same lines, I've long argued that if a pedophile truely cannot help his/her desires, that person has a moral duty to prevent any opportunities to exercise them, even if that means castration, strict confinement, or even including (exhausting any other options), taking one's own life.)

This, of course, addresses your hypothetical about a person having a murdering or theiving gene- the rights of others must be considered, but barring a lack of those rights, a gene for certain behavior could rule, if the drivers are strong enough (which I don't think they are for anything except sex and life maintaining behaviors). To continue on my earlier, awful, hypo, if some disaster occurred, and the only food available contained pork, the gov't would not be wrong to restrict strict Jews and Muslims from killing humans for their meat so as to avoid eating pork. (God, this hypo is getting worse and worse. For the record, I don't think that Jews and Muslims would be inclined towards canibalism to avoid violating their dietary prohibitions.)

Gay sex may be distasteful to some, but no one's rights have been violated which can be weighed against the actor's rights to express his sexuality.

Does that all make sense? I'm more musing than arguing a position, if that helps.

- Lyssa

sunsong said...

A.W.,

I don’t think anyone here would deny that judicial review should exist. What we are saying is that it should be based on whether a law—or in this case a state’s constitution—had to line up with the mere policy preferences of a judge.

I don't see it as the mere policy preference of a judge. This is federal issue, imo. As I mentioned before *because* the Supremes have declared marriage to be a fundamental right - gay marriage follows. Just like a state couldn't have a law that specifically Armenians the right to marry.


How on earth do you square obamacare with roe? If roe v. wade means anything, it is our right to control our medical destiny. Well, obamacare says “no, that is our business.”

I want to see the mandate found unconstitutional. I don't see that the federal government has the authority to *mandate* that we purchase something. But, as I also previously said, I note that many who think the courts have no juristiction on the Prop 8 ruling want the courts to find against the mandate. (Yes, I understand that the states are suing as well - but, imo, there is a fundamental *rights* issue involed with the mandate as well.)

Scott M said...

@sunsong

I see where you're going, but it seems like apples and oranges to me. The mandate penalizes you for not doing anything. Careful, or we'll derail the thread.

Maguro said...

@Seven - Societies that employ polygamy are totally fucked up.

That is your opinion. I'm certain that Judge Walker regards polygamous societies as incredibly vibrant and diverse.

In all seriousness, would a liberal judge dare base a ruling on the fact that Yemen is a horrible place? I think not. That is one rationale that's definitely not going to fly in the courts, unless the lawsuit is in Alabama or someplace.

phil said...
This comment has been removed by the author.
sunsong said...

Scott,

I see where you're going, but it seems like apples and oranges to me. The mandate penalizes you for not doing anything. Careful, or we'll derail the thread.

Oh for God's sake. I'm not *going* anywhere. I'm pointing out that there are people writing on this thread saying that the courts have no juristiction over marriage - when, in fact, the courts have assumed that juristiction in loving

And I'm pointing out that these same folks are likely to hail a ruling that strikes down the mandate. Do you see what I'm saying?

phil said...

First, a thank you to Ann. I requested that she do a post about Ted Olson this past weekend.

It is disappointing, but not surprising, that commenter's here did not focus on the conservative arguments that Ted Olson, one of the founders of the Federalist Society, has made for gay marriage.

Given that no one took up the challenge there is not much for me to respond to. As Althouse obliquely pointed out, most of the right wing "argument" is just more of the Rush Limbaugh hyperbole. Not very interesting.

At its best, this country and its constitution has been a beacon for freedom. The Fourteenth Amendment has encapsulated this striving for this unquenchable thirst for freedom that this country has.

It is now self-evident, at least among fair-minded non-bigoted people, that we are advancing well beyond the ancient hatreds that use to grip humankind and recognize that many of our best citizens are gays and lesbians. Except those who want to wallow in their own bigotry, it is also clear that there is no rational reason to discriminate against these individuals and their families that they are forming.

We have seen many advances over the past fifty years. Recognizing the equality of Gays and Lesbians is no different than accepting the technology that is pushing our human project ever forward.

But there will always be Luddites who can not let go of the quickly fading past.

It is critical that equality for gays and lesbians is not left to the acquiescence of the majority. Instead, it basis needs to be firmly placed under the umbrella of the Fourteenth Amendment and the U.S. Constitution.

Smart conservatives would engage their fellow conservative Ted Olson.

It appears there are not that many smart conservatives.

AC245 said...

Given that no one took up the challenge their is not much for me to respond to. As Althouse obliquely pointed out, most of the right wing "argument" is just more of the Rush Limbaugh hyperbole. Not very interesting.

First, I'd like to add my support to Salamandyr's point that the 1st Amendment was voted on, and to A.W.'s point differentiating the enumerated and explicit rights contained in the Constitution versus the penumbra/emanation/squint-hard-and-you-might-see-them "rights."

Yes, except for those of us who took up the challenge and addressed the topic of the post, no one took up the challenge to address the topic of the post.

:facepalm:

Please take your tired, content-free bigot!/luddite!/racist! diatribe elsewhere, phil (aka Jake/L.E.Lee/UW Law Babe/et al.).

This thread is for grownups engaging in rational conversation.

Joe said...

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The point is that the constitution is a limit on government, not an enumeration of rights of the people. The real question isn't whether homosexuals have the right to marry, but whether the government has the right to stop them from marrying.

The distinction here is important. The US constitution starts with the assumption that the people have the right to do anything they want and then attempts to add the least amount of control so that an orderly, functional government can be made to ensure that those rights are protected.

This is where so many people, like Rush, get it wrong--judges aren't "finding rights", they are finding a lack of prohibition for a right in the constitution. This is true conservatism--that the individual is paramount, that rights do NOT emanate from government and the government's job is to protect ALL rights, enumerated or not with the least interference as possible.

(General government regulation is the biggest impediment to our rights. Here's a clever way to destroy free speech--state that anyone publishing speech must be a corporation, corporations are regulated by the government, therefore corporate speech is regulated by the government.)

Skyler said...

Olson's argument is begging the premise. "Would you like your right to free speech . . . ?"

The difference is that we are not agreed that homosexuals should be allowed to "marry." In fact, they can't, because a marriage is between people of the opposite sex, no matter the popular attempt to change the language.

"If we tell you that two plus two equals five, it equals five. If we tell you that it equals three, it equals three."

Olson puts forward his conclusion as the argument, and goads people into believing that he need not offer an argument for redefining society.

former law student said...

As I mentioned before *because* the Supremes have declared marriage to be a fundamental right - gay marriage follows.

How does the right of a man to marry (one and only one) woman of his choosing (provided they're not "too closely" related) lead to the right of a man to marry any man of his choosing?

Marriage has always been the union of complementary beings -- males with females. Same-sex unions may be called marriages but they won't actually be marriages because they lack the essential complementary nature of marriages.

Seven Machos said...

I see a lot of talk here by people supporting this decision that is basically a litany of all the reasons why they support gay marriage. So what if you support it? Just because you support something is no reason why a judge should be allowed to foist it onto people.

Something that was constitutional yesterday is constitutional today absent a change in the Constitution.

If you want to change a law, work to change the law. There are many avenues that are democratic. However, if you insist on allowing a judge to overturn a law enacted by a legislature or the citizens via a vote, you are simple an opponent of democracy.

deborah said...

"To put it in a way , Althouse herself might put it : We are becoming a nation of pussies."
-AJ Lynch

Time for a banner change.

Fred4Pres said...

I agree with Steve Chapman on this. He is spot on.

phil said...

Seven Machos wrote "However, if you insist on allowing a judge to overturn a law enacted by a legislature or the citizens via a vote, you are simple an opponent of democracy."

Do you feel this way about people who fought for civil rights for African Americans in the courts? Where they opponents of democracy?

phil said...

Former Law Student wrote "Marriage has always been the union of complementary beings -- males with females. Same-sex unions may be called marriages but they won't actually be marriages because they lack the essential complementary nature of marriages."

There are people who say the above about inter-racial marriages. They will not recognize the marriages as being such. Are they also right?

El Pollo Real said...

Phil wrote First, a thank you to Ann. I requested that she do a post about Ted Olson this past weekend.

I hope you're kidding because that would be a serious policy lapse on Althouse part--or at least how she used to define it in the paragraph above the comment box.

Cedarford said...

The Amending process is now broken. No Amendment has been passed against significant opposition since special interest groups learned how to organize and sabotage the lengthly and cumbersome amending process. The Will of The People has been bypassed by entrenched power elites - who sabotage their expressed will directly Inside the Beltway or through their lawyer-agents in the Courts.

Leaving The People 4 recourses.

1. Change one corrupted Party for the other, hope the message sinks in. People who voted to put Obama and Dems in power are seeing they are just as corrupted and unresponsive to the Will of The People as opposed to the Richand Connected -- as the hapless Bush and his corrupt Party of the Rich & Connected cronies.

2. Constitutional Convention to fix the abuses of power that have become legal, institutionalized, even represented to non-lawyer scum citizens as "directly from refractions of emenations of penumbras of the Holy Parchment you lowly masses are obligated to brainlessly worship." As with the priests of the RCC being the only permitted to interpret the Bible, only lawyers dressed in robes say what the Consitution means.

3. Go with judges as the only Amenders. Parties to nominate and approve judges that will pledge to remain loyal to Party on key Constitutional areas. Use of assassination to finish any berobed lawyer gone rogue. (since only end of life ends lifetime tenure, and impeachment is reserved for criminal activity, not betrayal.)
Just think of the salutory lesson it would have been on David Souter in 1993 to learn Republicans were having a meeting to discuss whacking him and let Clinton name an honest Democrat.

4. Sometimes, it takes guns used and blood shed outside "Rule of Law!" to get progress. The Constitution (THe Sacred Parchment Itself) was created from violent butchery, disregard of British Rule of Law, and a botched 1st try by the Infallible Founders.
Without Union Troops pointing guns at conquered southern Americans in 13 States and teling them who may vote or hold office in Reconstruction - no way does the 13th, 14th, and 15th Amendments pass.

Seven Machos said...

Do you feel this way about people who fought for civil rights for African Americans in the courts?

Phil, dude, I have trodden this ground again and again. The Constitution and federal law explicitly prohibit discrimination based on race.

See, Phil, in a democracy what you do is, you make a law. The Constitution is a law. Federal law is a law. The town where you live has laws. Citizens create laws, usually through legislatures. Judges interpret those laws to resolve disputes between among the citizenry.

As you don't respect the lawmaking process, you are an authoritarian, and frankly we have no place for you in this country.

Seven Machos said...

inter-racial marriages

See the Constitution. See federal law.

Where in the Constitution or in federal law is gay marriage?

You stay busy with that for the next few days and stop bothering us with your ill-informed twaddle.

phil said...

If Ann's two sons decide to get married, one male/male and one male/female, I am sure that Ann will view them as being equal and both worthy of celebration and respect. I know the above about Ann because I believe she is not a bigot and that she recognizes the true nature of her sons and foolishness and vileness at this point to personally ascribe to old hatreds.

Dust Bunny Queen said...

notice no one has even tried to refute my point. we pass laws on morality all the time.

Not any more it seems. Scalia is correct: the moral compass of the population means diddly doo squat when it comes to morality and laws. The courts can invalidate any moral laws they want and the people have no rights to pass laws that regulate morality. It seems that the Courts can mandate any set of morals and codes they like.


No more statutory rape laws. Child pornography. Drinking age restrictions. Drug laws.

The Courts have spoken and your opinion doesn't matter. Shut up and pay your taxes so your betters and redistribute your money.

A.W. said...

Lyssa

> First, I'm assuming homosexuality (in the orientation sense, not the action) is an immutable characteristic. That is, the desire to have sex with someone of the same sex is something that can't be changed.

But that isn’t enough. First, there is such a thing as bisexuals.

But what if we find out that Polanski has a gene that makes him want to screw young girls. We don’t suddenly say that is kosher, do we?

Or perhaps you genetically predisposed to find horses to be sexy?

Saying you can’t help it, doesn’t end the debate. Indeed, I fail to see how it even relates to anything actually in the constitution. At most it informs how we the people view the policy being debated and it suggest out of kindness we should demand different laws. But the constitution has nothing to do with that.

As for sex being important, actually I think you are underselling it. Evolution basically says that we exist for one reason only: to successfully reproduce offspring that are themselves capable of reproduction. Morality might have something else to say, but fwiw. Which actually gets to another point. If being gay was really not a choice, then how come there are so many of them? Normally a genetic trait that zeroes out your chances of reproduction get eliminated pretty quickly, or at least reduced to almost nothing.

> At this point, you can feel free to point out the irony that my religious affiliation, Catholicism, makes demands on its clergy that clearly deny the necessity of this drive.

My wife is catholic and I am a Presbyterian. I remember before we got married they demanded we come in for “precounseling.” The catholic approach to marriage these days is that since they hate divorce, they really, really want to make sure you really want to get married in the first place. So then my wife says at one point, and then if we get married the priest will be there to be our marriage counselor. Which resulted in this exchange:

Me: honey…?
Wife: yes…?
Me: um, isn’t a priest, um, fundamentally unqualified to be a marriage counselor?

She didn’t think that was very funny. By contrast at my prebyterrian church we had two ministers, a man and a woman, who were not only married, but to each other. As I joked, that meant if he said anything stupid, she would be there to correct him.

> You can also point out that my opinion here, taken to its logical extreme, could also support sexual practices that are unacceptable, such as pedophilia, if we assume that these desires are immutable (an assumption that I think has some support).

Well, yeah, I kind of did earlier on.

> A person's right not to have sex forced upon them outweighs any rights that another might have.

And that works for pedophilia, but what about beastiality. Or imagine you have a gene-based desire to screw your sister, and she has a gene-based desire to screw you right back?

> even including (exhausting any other options), taking one's own life

Well, that is what Dennis Miller said once. “If you ever get to the point where you think you should touch a child, just kill yourself. You will get to the pearly gates and Jesus will give you a high-five saying, ‘thanks for taking one for the team!’” (that is a very loose paraphrase, but that is in the spirit of what he said.)

A.W. said...

Sunsong

> As I mentioned before *because* the Supremes have declared marriage to be a fundamental right - gay marriage follows.

Okay, and I will take it as a given that you won’t support a fundamental right to gay brothers to marry each other.

So… how is that not equally a fundamental right? Two brothers want to marry each other. And you are the federal judge. So what in the constitution can stop you?

And let’s remember that this ruling didn’t seem to follow when the Supreme Court said you could ban even gay sex (let alone marriage) in Bowers v. Hardwick. It’s a case of following some 40+ years later.

And, by the way, no, marriage is NOT a fundamental right. The state could get out of the marriage business altogether if it wanted to, and nothing would be violated.

I would add that Loving wasn’t so clear on the subject. Here is the whole passage:

> The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

It starts out saying stuff you like, but then then falls into equal protection analysis.

> many who think the courts have no juristiction on the Prop 8 ruling

Who? Who says they don’t even have jurisdiction? Because all the complaints i have read have just said it was wrongly decided.

Seven Machos said...

Phil -- Great, dude. Awesome. Go convince people to vote for legislators who will vote for your beliefs. Or go get a proposition on a ballot in your state.

Just stop being an authoritarian. We live in a democracy. I'm sorry you don't comprehend what that means.

phil said...

Seven Machos wrote "Citizens create laws, usually through legislatures. Judges interpret those laws to resolve disputes between among the citizenry."

The Fourteenth Amendment states "
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."

So, Seven Machoes judges are interpreting "those laws to resolve disputes between among the citizenry."

AllenS said...

phil,

Should prostitution be illegal? How about polygamy? Please explain why.

El Pollo Real said...

Phil wrote: There are people who say the above about inter-racial marriages. They will not recognize the marriages as being such. Are they also right?

As you've used the words, "interracial" and "gay" are just adjectives. Could you please be more substantive?

phil said...

Seven Machoes wrote "Just stop being an authoritarian. We live in a democracy. I'm sorry you don't comprehend what that means."

I am a fighter for equality and for freedom. There is no rational basis to discriminate against gays and lesbians except for an unwillingness among some to let go of ancient hatreds. Anyone who knows gays and lesbians and have observed their unions and marriages know this to be true.

El Pollo Real said...

Phil wrote: If Ann's two sons decide to get married, one male/male and one male/female, I am sure that Ann will view them as being equal and both worthy of celebration and respect.

I submit that only the one involving a female should be called matrimony.

Seven Machos said...

Phil -- There is no equal protection claim here because everyone is allowed to marry exactly one member of the opposite sex, over a certain age and of a certain familial distance.

Keep trying.

El Pollo Real said...

Phil wrote: I am a fighter for equality and for freedom.

You are also a fighter against representaive democracy and your vision is clouded by the specifics of this issue.

And as I told you before, you are also the anti-Dale Carnegie.

phil said...

Allen S. wrote "Should prostitution be illegal? How about polygamy? Please explain why."

I bet you are also someone who believe back in the day that if we had equality of the sexes that would lead to unisex bathrooms.



The line of argument that Steven S. puts forth is intellectually unserious and will be laughed out of the Supreme Court.

sunsong said...

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Ok, so the Supreme's say it a basic civil right. That's works for me, too.


Okay, and I will take it as a given that you won’t support a fundamental right to gay brothers to marry each other.

So… how is that not equally a fundamental right?what about the idea of ______ marrying
questions to be distractions from the issue at hand - which gay marriage. That's my opinion.

If brothers, or gay brothers, or polygamists or dogs and cats want to marry - they need to make their own case, imo. This case is limited to the question of gays and lesbians and since, "loving* determined that marriage is a basic civil right - I see no *reason* for gays to be denied. If that ruling leads to other cases - then that is what happens. If it doesn't, it doesn't. The speculation either way interests some - but not me :-)

Getting government out of the marriage business is a great idea. It is a limited government idea - and I am for that. However - as much as people express support for that - there is no effort, that I can see, to *do* anything about it.

Perhaps this case will spark some action in that regard - which I would welcome. Until then - this is the course the country is on. imo.

AllenS said...

phil,

You don't know me, but I know that you're an idiot. Try answering my questions.

phil said...

El pollo wrote "And as I told you before, you are also the anti-Dale Carnegie."

Well I am sorry to not be more sensitive to all of the fragile conservative souls here.

Obviously, it would be so much nicer for conservatives here if there was no opposing arguments being put forth.

Seven Machos said...

Getting government out of the marriage business is a great idea.

If you want children to be completely screwed because ex-spouses feud and if you want generational transfer to be unpredictable and crazy. Yeah, man. Awesome idea.

former law student said...

Former Law Student wrote "Marriage has always been the union of complementary beings -- males with females. Same-sex unions may be called marriages but they won't actually be marriages because they lack the essential complementary nature of marriages."

There are people who say the above about inter-racial marriages. They will not recognize the marriages as being such. Are they also right?


?

Black men are still men and white men are still men. The "problem" with interracial marriage was that married men and women (assuming sufficient youth and health) will naturally produce offspring -- a concern not implicated with SSM.

SSM will be an institution of a very different character -- that's all I'm saying. I could call my car an airplane but naming it so would not enable it to fly.

Scott M said...

@phil

Allen S. wrote "Should prostitution be illegal? How about polygamy? Please explain why.

I bet you are also someone who believe back in the day that if we had equality of the sexes that would lead to unisex bathrooms.

The line of argument that Steven S. puts forth is intellectually unserious and will be laughed out of the Supreme Court.


That's Gregory Heinz-level tap, Phil

Seven Machos said...

Phil -- You aren't putting forth arguments. You are putting forth euphemisms.

AllenS said...

unisex bathrooms

Ever been on an airplane?

AllenS said...

Ever heard of a port-a-potty?

phil said...

Allen S. wrote,
"Should prostitution be illegal? How about polygamy? Please explain why."

The exact same argument was made against inter-racial marriage forty years ago. That by radically changing social norms (and marriage between a black man and a white women was a radical change) it would lead to a further erosion of other social norms including the legal acceptance of prostitution and polygamy.

The arguments made against this still applies today in the context of the gay marriage discussion.

A.W. said...

Sunsong

> what about the idea of ______ marrying questions to be distractions from the issue at hand - which gay marriage. That's my opinion.

Not at all. We are talking legal principles. It is asserted that we cannot pass laws restricting marriage based on morality. So I am saying, the laws against incest, the laws against bestiality, are about morality. I am disproving a major proposition of that ruling and you want to pretend its off topic.

I AM SHOWING YOU THAT THIS STATEMENT BY THE SUPREME COURT ISN’T TRUE. They don’t even believe it when they say it. instead they have a different morality from the rest of us, and they are perfectly okay with us imposing that morality on others, just not our morality which differs from theirs.

Right now there are people sitting in jail because they committed incest. They can be imprisoned in many states if the family member is only related by adoption, of full age, and free consent. They can be imprisoned if a step-brother has sex with a step sister. This is not hypothetical, this is happening now. And the Supreme Court should be required to explain how gay sex is allowed and incest between genetic strangers is not. My guess is they can’t do it.

> Getting government out of the marriage business is a great ide

Well, if marriage is a fundamental right, then its unconstitutional.

Which means it is not a fundamental right, duh.

former law student said...

The biggest leap of logic in the Walker decision is that gender equality has made men and women indistinguishable. Men and women are now freely interchangeable, I suppose. One would hardly be able to tell one's mother from one's father.

AllenS said...
This comment has been removed by the author.
AllenS said...

I'm not making an argument. I asked you two simple questions. You don't seem to have the guts or intelligence to answer them. Instead, you change the subject. I don't think that all of the states had laws against interracial marriage.

former law student said...

The exact same argument was made against inter-racial marriage forty years ago.

The argument against interracial marriage was that they would produce inferior children. Whites should not marry "down."

sunsong said...

A.W.,

Well, if marriage is a fundamental right, then its unconstitutional.

Which means it is not a fundamental right, duh.


So? So what? Perhaps that's a reason why there is no serious effort to get the government out of the marriage business. Perhaps that helps explain why we are on the course we are on.

As to your interest in discussing who else might have a fundamental *right* to marry. I have already stated that that kind of conjecture doesn't interest me.

Scott M said...

The exact same argument was made against inter-racial marriage forty years ago. That by radically changing social norms (and marriage between a black man and a white women was a radical change) it would lead to a further erosion of other social norms including the legal acceptance of prostitution and polygamy.

The arguments made against this still applies today in the context of the gay marriage discussion.


You're completely missing the point of AllenS' question. For my own part, I don't know how gay marriage advocates can pull out their arsenal of arguments against one-man/one-woman being the only valid marriage type, then turn around and tell polygamists they are SOL. This isn't about fears of erosion because the argument we're making isn't one of a slippery slope.

Scott M said...

Anyone else get the feeling someone has co-opted FLS' login?

Seven Machos said...

Getting government out of the marriage business is a great idea.

Fifteenth Amendment

Section 1. 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 race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.


That's why you can't discriminate against people based on race.

Where's the gay part?

Seven Machos said...

How did that happen?

Here is what the italicized part above should say:

The exact same argument was made against inter-racial marriage forty years ago.

former law student said...

As to your interest in discussing who else might have a fundamental *right* to marry. I have already stated that that kind of conjecture doesn't interest me.

So, once the door has been opened to a fundamental redefinition of the institution of marriage, it will immediately slam shut? I don't think that's how things work. Who's pushing on the door to make it so?

When Brown v. Board of Ed said blacks and whites must be educated in the same schools, Chinese and other ethnics were included as well.

former law student said...

Anyone else get the feeling someone has co-opted FLS' login?

Both left and right make stupid arguments.

Ignorance is Bliss said...

sunsong said...

Until then - this is the course the country is on. imo.

Yes. In a handbasket.

Seven Machos said...

FLS -- It's crazy to discuss the idea that one court case will be used to argue future cases with different sets of facts.

That never happens. Not in a common law system.

Joe said...

Should prostitution be illegal? How about polygamy? Please explain why.

I'll answer.

No and no.

Both are activities certain people engage in regardless of their illegality. However, their illegality makes it difficult to protect the participants.

Legalizing prostitution would allow government to ensure prostitutes were healthy and to minimize exploitation by various people involved in prostitution. An added bonus would be that the transaction could now be successfully taxed.

Legalizing polygamy would give basic legal protection to second, third, etc. wives and their children.

slarrow said...

To put what fls said in a slightly different format: what could Joe Majority do in Virginia that John Black couldn't? Marry a white woman. Why not? The color of John's skin. Is that a relevant moral difference? No (and happily, it's much harder to find people who'll publicly say "yes" these days.)

Now, what can Joe Majority do these days that Jim Gay can't? Marry a woman? Can't be; both Jim and Joe can do that. Marry a man? Can't be; neither Jim nor Joe can do that. So where's the unjust discrimination? What can Joe do that Jim can't?

If the response is "marry who he wants", that can't be right because Joe has always dealt with restrictions (age, close relations, multiple partners, etc.)

The honest thing to do is to admit that Jim wants to do something that Joe has never had the right to do. But if you do that, then you actually have to convince Joe that it's a good idea instead of getting some judge to make Joe let Jim do what he wants. Much easier to pretend that Jim Gay is just like John Black (and commit the fallacy of equivocation) and hope enough people buy it.

former law student said...

7M

True. Take a case like Loving v. Virginia, where one man was not allowed to marry one woman in the belief that their offspring would be inferior. No relation whatever to allowing incestuous marriages, in which one man is not allowed to marry one woman, in the belief that their offspring would be inferior.

jr565 said...

The issue here is not equal protection. It's allowing people to govern themselves as they see fit in light of the obvious fact that there is no federal of constitutional edict preventing people to govern themselves.


Gays have equal protection now. Men can marry women and women can marry men. No man is restricted from marrying a woman and no woman is restricted from marrying a man which is why the comparison to interracial marriage is bogus. Black men are still men and black women are still women. So if a black man were unable to marry a white woman it is an equal protection argument because is the fact that he's black mean he's not a man? If he's a man than he can marry any woman. Marriages, quite rightly are organized around gender. Men and women make babies, therefore society sets up a relationship to properly administer to this relationship (and pass along property and further society through population growth).
Gay marriage is not about gender but about orientation since gay men are still men and gay women are still women, the fact that they are asking for marriage between genders renders the equal protection argument moot. Because questions of gender versus orientation are different ones.
Gay men have all the same rights as straight men vis a vis marriage, because the state views them (in terms of marriage) as Men and not as gays or straights.
Not equal protection.

Scott M said...

Legalizing polygamy would give basic legal protection to second, third, etc. wives and their children.

Bigot! j/k, but that doesn't mean a woman can't have multiple husbands. Frankly, where are all the environmentalists? A man with two wives might needs a bigger house (ie, a few more kids), but one slightly bigger house does not equal the carbon footprint of a whole other house.

WV - "conukes" lol

Fred4Pres said...

This seems like a good time for an anti joke:

A horse walks into a bar. Bartender says, “Hey, why the long face?” Horse says, “Because judicial restraint really does not mean anything anymore and the separation of power issues are making me colicy.”

We are overreaching on gay marriage.

Dust Bunny Queen said...

If marriage is a 'fundamental right', then why isn't polygamy or polyandry available.

If marriage is a 'fundamental right' then I should be able to have several husbands and a couple of co wives. That would sure make dividing the household chores easier.

Just think!! A group marriage would allow people to specialize in what they do best. Perhaps one of the husbands would prefer to stay home and tend to the yard, household repairs and cook. One of the wives might be able to home school, while one of the other wives has a career. The career spouses would be able to provide health benefits for ALL!! And if they fall on hard times, just think of the food stamps and welfare benefits they can compile.

If marriage is a fundamental right, why not?

Why not polygamy? Polyandry? Group marriage?

If you are for Gay marriage and not for this....explain why.

former law student said...

SSM advocates often argue out that infertile couples are still allowed to marry, as are women post menopause. I would like to point out that my car is still a car even if it doesn't start, and the thought that a woman somehow becomes sexless once her reproductive years are over is disgusting.

Scott M said...

If marriage is a 'fundamental right', then why isn't polygamy or polyandry available.

If marriage is a 'fundamental right' then I should be able to have several husbands and a couple of co wives. That would sure make dividing the household chores easier.

Just think!! A group marriage would allow people to specialize in what they do best. Perhaps one of the husbands would prefer to stay home and tend to the yard, household repairs and cook. One of the wives might be able to home school, while one of the other wives has a career. The career spouses would be able to provide health benefits for ALL!! And if they fall on hard times, just think of the food stamps and welfare benefits they can compile.

If marriage is a fundamental right, why not?

Why not polygamy? Polyandry? Group marriage?

If you are for Gay marriage and not for this....explain why.


HOWARD JOHNSON IS RIGHT!!!

A.W. said...

Sunsong

> So? So what? Perhaps that's a reason why there is no serious effort to get the government out of the marriage business

No, sun, it is ridiculous to say that official recognition of marriage—even straight marriage—is a fundamental right. Not everything is in the constitution just because you want it to be there.

> As to your interest in discussing who else might have a fundamental *right* to marry. I have already stated that that kind of conjecture doesn't interest me.

How about principle? How about whether our robed masters follow any principle at all besides their own whims. Are you interested in that?

Someone else said:

> The arguments made against [miscegenation laws] still applies today in the context of the gay marriage discussion.

You mean the Fourteenth Amendment was written specifically to outlaw anti-gay discrimination.

Seven machos

The fifteenth amendment is not the issue, the Fourteenth is.

AllenS said...

Scott M said...
A man with two wives might needs a bigger house

Or maybe nine bathrooms!

lyssalovelyredhead said...

A.W., I’ll see if I can address all of your points:

1) Bisexuals: I guess I would assume that that’s an immutable characteristic as well, although I’m not sure it matters. The point is that (under my assumption) there’s a characteristic that makes it unchangeable that some people will have a very strong urge to have sex with those of the same sex, and by very strong, I mean central to their existence, and similar in strength to that which heterosexuals feel towards having sex with the opposite sex. (I don’t know if bisexuals would fit in one, both, or neither of these categories, so I’ll just focus on gays.)

2) The Roman Polanski gene: I discussed this in my response. If the action impacts the rights of others, then that outweighs the actor’s rights. You don’t have the right to kill another person for his/her meat, even if the alternative is starvation.

3) Bestiality: A harder case. I would buy that the animal can’t consent; therefore, it falls under animal rights (if such a thing exists) or animal cruelty. I realize that we do a lot of things to animals that would be without their consent; however, I think we could argue that those things are natural for us to do (getting into traditions that pre-date history), while a human having sex with an animal is so unnatural that, in absence of its ability to communicate a response, it should be assumed that the animal would not consent (or that the animal should be considered unable to consent by nature of its animalism, similar to the situation of a mentally retarded person or under-aged person- no matter how much they indicate consent, they are not deemed fit to give it.) I realize that you can argue that a cow wouldn’t consent to being a hamburger, either, but, again, our bodies are made to eat meat, but not to have sex with animals.

4) Why are there so many gays? I suspect that, while it is an inborn or very early determined characteristic, it is not as simple as a gene that says either yes or no. I think that we would have narrowed down that gene by now, and we have not. (I also suspect that the mechanism is different for men than it is for women, but that’s another story.) Even so, there are a number of genetic disorders that impact or completely prevent reproduction, yet still exist. If a gene is recessive, it can hide for generations without expressing itself. (Red hair is recessive, and generations can exist with no redheads, until the right combination hit and we pop out.)

Additionally, until very recently, many gays probably entered heterosexual relationships and reproduced, due to societal pressure. The father of a close friend from college, for example, had 4 children (this would have been in the 1970’s) before embracing his homosexuality.
I had several male friends in my teens who turned out to be gay- I noticed 2 things about them: a) They all had relationships with girls at some point, and in times of earlier marriages, could conceivably have reproduced with these girls, and b) all of these fellows had numerous stereotypically gay characteristics (they were the kids who were singled out and teased for acting “gay”) while they were still playing (and, I think, believing themselves to be) straight. That suggests to me that the orientation, and the stereotypically gay characteristics that go along with it, were there long before the person embraced it.
(cont.)

lyssalovelyredhead said...

5) Gene based desire to screw your sister: A couple arguments here. First, the drive to have sex, or a certain type of sex, does not really focus in on one person and one person alone. If it did, and that person passed away, we would be in trouble, huh? It’s more general than that, although my observation is that it’s specific enough to cover sex with a certain sex (in most cases, with exception for bisexuality, of course). The second argument is that the rights of any children that you might have, that is, their rights not to be potentially mutated, trumps. Or you could argue that, because these relationships almost always begin at a very young age, the underaged person, at the time they are underaged, has a right not to be potentially encouraged/groomed towards such a relationship. (That’s a sketchy argument at best, but really, it would be my largest concern when getting into incestuous relationships that don’t bring up issues of birth defect risks.)

6) Dennis Miller: Heh! Love that guy.

Dust Bunny Queen said...
This comment has been removed by the author.
deborah said...

"We are becoming a nation of vast centralized power. There is nothing in the Constitution about gay marriage. Nothing. Therefore, it's left to the states or local communities. If Vermont wants gay marriage and Alabama doesn't, who cares?"
-Seven Machos

I don't have a dog in this fight, but it would be fascinating if the Supremes didn't pull a Roe v. Wade dependent on shaky right to privacy grounds, but refused to hear the case until a better case could be made.

Dust Bunny Queen said...

Why are there so many gays?

Plastics

forgot the link

phil said...

Allen S.,

Against my better judgement (I do not like wasting my time) I will humor you without wasting too much of my time.

Is being gay/lesbian=polygamy?

Is being gay/lesbian=prostitution?

Why don't you argue that gay marriage will lead to the legalization of drugs?

The Supreme Court will not go to such contortions in order to not do the obvious right thing.

AllenS said...

Now I'm left wondering if Al Gore's nine bathrooms are unisex? Because, you know, that's how it ends up a lot of the time.

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