California’s Same Sex Marriage Ruling Flawed
by P.A. Madison on August 5th, 2010
Yesterday in the case of Perry v. Schwarzenegger, U.S. District Judge Vaughn Walker enjoined California’s Proposition 8 from being enforced on the grounds California has a “constitutional obligation to provide marriages on an equal basis.” Judge Walker finds California’s anti-SSM law violates both the Due Process and the Equal Protection clauses under the Fourteenth Amendment. Here are some of my quick preliminary thoughts on the ruling.
One difficulty with the Due Process route is that it requires treating marriage as a fundamental right is that proceedings before some court of law has never been a requirement for entering into marriage. Walker writes, “[t]o determine whether a right is fundamental under the Due Process Clause, the court inquiries into whether the right is rooted ‘in our Nation’s history, legal traditions, and practices.'”
And here lies a problem: Being able to freely choose one’s marriage partner has never been viewed as rooted in the Nation’s history or “legal traditions, and practices.” Marriage laws have long restricted who can marry who, when and under what conditions. Elena Kagan in a letter to Senator Specter in March of 2009 said she could find no constitutional right to same-sex-marriage in the Constitution:
Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.
Judge Walker’s Equal Protection argument didn’t make any sense in light of the historical evidence behind the meaning of the words that says it never had anything to do with gender equality in public law. If it had meant equality in such things as sex or gender in all laws then there would never have been any purpose for, say, the Nineteenth Amendment (woman suffrage).
Neither the chairman of the Reconstruction Committee, Rep. Thaddeus Stevens or Senator Jacob M. Howard introduced the Equal Protection Clause to their respective chambers as having anything to do with social equality, but everything to do with equality in laws and proceedings for security of person before tribunals of justice. Hence, why the Equal Protection of the Laws were presented to both the House and Senate as limited to “offenders” of law.
This explains why the Fourteenth Amendments chief sponsor, Rep. John Bingham, generally used the word “tribunal” and laws of Due Process when discussing the concept of Equal Protection under the Fourteenth Amendment and not general civil laws. In 1870 he made this very clear when he said no State may deny the Equal Protection “not of its laws, but of the laws,” i.e., law of the land (Due Process).
Additionally, he also explained that the Equal Protection of the laws had always been part of the Constitution under the Fifth’s “no person” and not the Magna Charta’s “freemen” shall be deprived of life, liberty or property without Due Process.
Constitutions and statutes of former rebel States were required to conform to the requirements of the Fourteenth Amendment before being readmitted into the union under reconstruction. To accomplish this, former rebel States were required to repeal their “black codes” (black codes were criminal codes that singled out blacks for special punishments), however, laws of miscegenation and segregation remained and were never objected to by framers of the Fourteenth Amendment. The reason is easy to understand in light of the fact restricting marriage to opposite gender or race has absolutely nothing to do with creating “class legislation” that unequally applies or denies laws of proceedings for security of person.
Judge Walker’s attempt to invalidate Prop 8 under Due Process and Equal Protection clauses is weak, and no amount of testimonial evidence offered will gloss over this fact. The fact is Due Process or Equal Protection has never been required for the qualifications of marriage or the issuance of a license or ever viewed as anything to with security of person before the law.
I’ll leave the final word to Justice Powell from his concurrence in Zablocki v. Redhail, 434 U.S. 374 (1978):
The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people … State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A “compelling state purpose” inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.
Related: Historical Meaning Behind ‘Equal Protection of the Laws’
People who use the “slippery slope” argument when talking about “gay marriage” do so to point out the hypocracy pro-“gay marriage” advocates have with regards to marriage. If polygamy and man/animal marriage remains illegal, then there still are restrictions on marriage. Traditional marriage advocates believe there should be restrictions whereas “gay marriage” advocates have argued there should be no restrictions. Yet we never hear from this crowd on how it is pro-polygamy!
“”gay marriage” advocates have argued there should be no restrictions”
Who? When? Where? I have never heard that argument. Slippery slope arguments are fallacious. If same sex marriage is a slippery slope to bestiality, then isn’t opposite sex marriage a slippery slope to same sex marriage?
This post reads more like a wistful normative argument about what you would like constitutional law to be, rather than what it empirically is.
“…traditional opposite sex marriage have [sic] never been traditionally viewed as a fundamental right anyway…”
I’m not sure what you mean by this statement, but it’s certainly is not an accurate description of constitutional law. A short tour through constitutional law of the past 150 years is sufficient to prove otherwise. The Court has routinely recognized marriage as a fundamental constitutional right under the 14th Amendment Due Process Clause. See Turner v. Safley (1987); Zablocki v. Redhail (1978); Loving v. Virginia (1967); Skinner v. Oklahoma (1942); Maynard v. Hill (1888).
Additionally, your broader points about the meaning of the Due Process Clause are simply a reframing of the old and tired debate about whether there is a “substantive” component to the Due Process Clause. These arguments are moot at this point (except in legal academia) because substantive due process is well-established now in constitutional jurisprudence. You may not agree or like the constitutional jurisprudence, but to suggest the law is otherwise is simply wrong. Nevertheless, your discussion of the issue ignores the broader context of the drafting and ratification of the 14th amendment. John Bingham was one of the primary authors as you say, but if you read anything about what influenced him, you’ll see that he intended the 14th amendment to be read quite broadly. He drafted it in the context of the Black Codes of 1865-66 and was appalled by violence and political disempowerment of blacks in the South after the Civil War and abolition of slavery. Him and others were particularly concerned about protecting the life, liberty, safety, political rights, and the property of former slaves. They thought they needed access to all the basic protections of the Bill of Rights but knew that it would be impossible to detail all the needs and to explicitly protect them. So, the language is broad and meant to be interpreted as such to protect liberty and justice for ALL.
There may be more reasonable arguments as to why Walker’s opinion in Perry is wrong, but you certainly haven’t identified any here, so much as the law is concerned.
Nah, the post I think is more about what the written law means rather then what divided court opinions wished the constitution to had meant. Never trust a court that makes up its own facts.
Anyway, see Prof. Carpenters take on fundamental rights discussion here:
The meaning of the text of the Constitution cannot be divorced from Supreme Court opinions interpreting that text. The idea that courts make up facts is pretty cynical. I would like to see an example. I’m not sure what divided court opinions you’re referring to, but the Court made clear, by a unanimous 9-0 decision, in Loving that marriage is a fundamental right.
Professor Carpenter has a valid point that the Due Process Clause claim is aggressive, but I don’t really agree that that means the Perry Due Process Clause holding would be struck down on appeal. As I already cited, a string of Supreme Court decisions have struck down state marriage restrictions based on the Due Process Clause. Additionally, Justice Kennedy, writing for the majority in Lawrence v. Texas used the Due Process Clause to strike down laws criminalizing sodomy in 2003. Because he is the likely 5th vote for either side in this case when it gets to the Supreme Court on appeal, the Lawrence case is particularly important and may portend that Kennedy isn’t disinclined to rule that the fundamental right of marriage under the Due Process Clause renders Prop 8 unconstitutional. Regardless, the DPC claim is only one facet; there’s always the independent Equal Protection Clause claim as well.
Why if is factually wrong and creates errous results? Hasn’t bad court rulings been constantly attacked before until the error was corrected? If the constitution is merely what the court says it means why have a written constitution?
And he also made clear that it didn’t mean the “government must give formal recognition to any relationship that homosexual persons seek to enter.”Â
Those court cases you cite, did they all deal with criminal law by chance?
You got it dude! Those cases dealt with criminalizing conduct that opened the door for due process challenges. Prop. 8 doesn’t criminalize anything! This Madison guy is on the money with his arguments even if some object to him using original meaning to explain the written word.
Kennedy will vote to uphold Prop. 8, you just watch.
The black codes dealt with criminalizing and punishing behavior directed solely at blacks, and that is what the equal protection clause protected against: Criminal laws that singled out and punished blacks because they are black. As Madison already pointed out elsewhere, social inequality like segregation was not something that was widely objected to by republican abolitionists, including Bingham, only criminal laws that singled out a single class of persons.
Proposition 8 doesn’t criminalize and punish behavior by a single class of persons.
Polital disempowerment never came under the 14th amendment because political rights it was never viewed by very many to be a privilege or immunity.
Updated to make some of your thoughts “more clearer”? That sure helps this first time visitor decide whether to read on
Justin Raimondo, who is gay, summed up the gay’s movement entire sick position:
“The entire gay rights movement is based on the most unattractive, indeed pathetic motive imaginable”â€the need for acceptance.”
The difference is that Proposition 8 imposed no criminal penalties, unlike the Texas sodomy statute. It did not even deny same-sex couples access to “a committed, officially recognized, and protected family relationship that enjoys all the constitutionally based incidents of marriage”Â.
why is it there seems to be so many people that do not understand the idea that all people are equal.
its that simple. if heteros can marry, than gays should have the same right. this whole argument was used when most of the country did not want black and white people to marry.
same thing, different decade.
if ONE is not EQUAL, than NON are EQUAL.
ps didnt the Federalist lose the battle?…im just sayin 🙂
There never has been such a thing of treating everyone equal in every imaginable situation. Very few privileges have ever been freely given without requiring any conditions to be met beforehand. There is nothing legally or morally objectionable about laws that only recognize a man and woman for purposes of marriage no more then a law that only recognizes people with certain eyesight or height.
Society is really decaying when the courts get to decide what public laws serve a rational purpose. I think social changes are great but not because of judicial intervention that forces it. People should be free to outlaw whatever they feel is objectionable and don’t have to explain why to any federal court.
As far as I am concerned, Judge Walker violated Article IV, Section 4, “The United States shall guarantee to every State in this Union a Republican Form of Government.”Â
Those cases dealt with criminalizing conduct that opened the door for due process challenges. Prop. 8 doesn’t criminalize anything!
Absolutely incorrect. Some of these cases relate to criminal laws but not all. For example, let’s take Zablocki v. Redhail (1978). A WI statute required noncustodial parents who resided in Wisconsin to get a court order prior to receiving a marriage license that confirmed that the parent wasn’t behind in child support payments. The purpose of this law was to ensure that the children would not become dependents of the state. The Court found the law to be unconstitutional under the Due Process Clause of the 14th Amendment because it infringed on the fundamental right of marriage. The Court acknowledged that the state’s goals were rational, unlike Prop 8, but even though the interests were important, the statute was not closely tailored to achieve those interests. The Court explained marriage as a fundamental right under the Due Process Clause in the following terms:
As you can see in the last sentence, the type of law (civil or criminal) is irrelevant. The Court refers to any “statutory classification,” including civil (as this case was — just like Prop 8 and other state restrictions on SSM).
I don’t know where you got this notion, but it’s certainly not right. Learn some history before you make bold, sweeping statements that have no basis in fact. Bingham and other framers of the 14th amendment were concerned about far more than criminal laws. Slavery and the incidents of slavery, including political disempowerment, were the primary motivations for the 13th and 14th amendments. If they were solely concerned about criminal laws, they could have easily been explicit about that in the text. Moreover, both the original Due Process Clause in the 5th Amendment of the Bill of Rights and the parallel (with the same meaning) Due Process Clause in the 14th amendment apply to civil laws as well.
At least this is partially correct. Your initial description is correct, but the logical conclusion is wrong. Of course some discrimination is inevitable and even good in some instances. But the Constitution requires that persons that are similarly situated be treated the same by government. Of course, that begs the question of what “similarly situated” means. The examples you provide eyesight and height would only be legitimate classifications to discriminate upon in the event that the discrimination furthered some rational state objective. So, requiring that people be able to see for them to be in the military, for example, may be a legitimate form of discrimination because the government has a legitimate interest in ensuring that people who are part of the marines have the physical abilities to engage effectively in combat. In that case, blind people are not similarly situated to those who can see. However, a law banning blind people from marrying would fail under the Equal Protection Clause because for purposes of marriage, they are similarly situated to people who can see.
Now, the question is whether same sex couples are similarly situated to opposite sex couples for the purposes of marriage as the government recognizes it today. The most common argument for why they are not is that the same sex couples cannot reproduce like opposite sex couples. But that argument assumes that the purpose of marriage is to have children. This argument fails because government has never required procreation or the ability to procreate as a precondition for access to the institution of marriage. The government routinely recognizes relationships that cannot or will not reproduce; marriage licenses are granted all the time to those whom do not want children, those whom are infertile, and those who are elderly and can no longer reproduce. Moreover, if it were simply about procreation, why does marriage confer so many privileges and benefits that are unrelated to procreation?
The better and more logical answer is that marriage has become an institution to recognize a bond of love between two people that confers societal benefits — through stability, healthy relationships, and familial bonds. In that regard, same sex couples and opposite sex couples are similarly situated. They may both form loving and committed relationships that engender stable families and healthy relationships. Accordingly, the government would have no legitimate reason to discriminate between same sex couples and opposite sex couples for purposes of marriage.
Wrong. Everyone involved in the 14A’s debates made it clear political rights were not civil rights. Why in the hell do you think there is a 15th Amendment?????
Here, go read what Bingham and the House Judiciary Committee said about the 14A and political rights.
But these cases didn’t deal with freedom to choose whoever you want to marry outside of the sanction of law.
The constitution requires no such thing. The court might, but not the constitution because that was never amended to force such an requirement. I believe the commerce clause was used to do it and not the 14A, yes? Just proves how corrupt and mixedup juriprudence is in this country
This is completely nonresponsive. You, and this post that you refer to, are talking about the Privileges and Immunities Clause of the 14th Amendment. That’s only one of the five sections, and it has effectively been read out of existence. The 15th amendment only offers the right to vote, a political right surely, but not the only political right. That says nothing about the Due Process Clause and Equal Protection Clause of the 14th Amendment, which is what I’m talking about. The Due Process Clause incorporates the Bill of Rights, which includes everything from freedom of religion and speech to the right to be free from cruel and unusual punishments. Surely you would say speech, if nothing else, is a political right; indeed, that is the core of its purpose: to ensure that people could speak freely about political issues without fear of government reprisal.
You draw this conclusion based upon what? You can make the normative argument that you wish the Constitution said and meant something other than it does, but you haven’t made any compelling reason to support such a reinterpretation. The Equal Protection Clause of the 14th Amendment requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” You are correct that the Constitution does not say all similarly situated persons must be treated equally, but that’s what that text means.
God, do you really take yourself seriosly? I sure can’t!
I draw the conclusion based on the debates of the framers, the public understanding and court holdings that proceeded the adoption. I’ll take that over any modern court holding found making up their own facts to advance their own agenda of what the constitution ought to have said.
Truth will always trump fiction and lies sooner or later.
Ironically, you offer conclusions completely unsupported by fact or even evidence — opinion + ideology unrooted from any rational explanation to support the conclusions that you prefer. I’m still waiting for the examples of “modern court holdings” that have been “found making up their own facts.”
I suppose 600 years of juriprudence that says the liberty of person is simply the liberty from arbitrary imprisonment just doesn’t cut it for you?
Did anyone ever argue chapter 39 of the magna carta protected substantive rights? The answer is no.
Why did the same congress who passed the 14A define the violation “liberty” under due process as an act of unjust “imprisonment” only?
Hasn’t personal liberty under due process always been protected by the great writ of habeas corpus? Are you going to play a idiot and argue gays can file a writ of habeas corpus against proposition 8? (laughing)
There is a mountain of evidence against the theory of substantive due process under the 14A. It is pure fiction.
In 1868, the same Congress who adopted the Fourteenth Amendment passed an act entitled “Rights of American Citizens in Foreign States” in the event any citizen was “unjustly deprived of his [personal] liberty by or under the authority of any foreign government.”Â
I never intended to get into a discussion about the original meanings of “due process of law” as they were when the 5th Amendment and 14th Amendment were drafted and adopted. As my original post made clear, these criticisms of substantive due process are nothing more than wistful what-ifs because, like it or not, substantive due process is well-established in constitutional jurisprudence since the Due Process Clause in the 5th Amendment was first interpreted directly by the Supreme Court in the 1850s. Moreover, I’m not even a believer in originalism, so all these arguments about what Due Process meant to the framers and public in the late 18th and mid-19th centuries, are not determinative of what it means today. So, my argument has always been predicated on the well-established constitutional framework as it exists today — one that recognizes substantive due process and more specifically recognizes that marriage is a fundamental right under the Due Process Clause.
Having said that, however, I don’t mind engaging in a bit of originalist mumbo jumbo. There is quite a bit of support for the notion that the framers and ratifiers of the 5th Amendment would not have thought the Due Process Clause had a substantive element. Regardless, I don’t think that’s determinative for the 14th Amendment, since it wasn’t ratified until 80 years later. State courts, representatives, and the people all began to recognize substantive elements in the early 19th century. By the time the 14th amendment was ratified, 20 of the then-37 states recognized some form of substantive due process in their state constitutions or the federal constitution. Only 2 of the other states had rejected such interpretations. At least two Supreme Court decisions recognized substantive components, and the recognition of these substantive components of due process was never really that controversial or surprising at the time. Accordingly, even if the Due Process Clause of the 5th Amendment would be deemed by originalists to refer only to procedural process, by the time the 14th Amendment was ratified, it had taken on a substantive meaning to most states and the public. Thus, there is a good originalist argument that the 14th Amendment included a recognition of substantive due process.
P.A. Madison, your argument here is kind of quixotic. First of all, the USSC has long made it clear that marriage is held to be “one of the basic civil rights of man” (Loving); IOW, fundamental. Brian, upthread, has done a nice job of identifying the precedents. (Brian’s obviously very well-informed and hardly needs me to backstop him, but I felt like weighing in anyway.)
Second, moreover, Judge Walker’s ruling doesn’t actually rely on that (nor on gays’ status as a marginalized group, as poster Matt complains), since he doen’t subject Prop 8 to strict (“compelling basis”) scrutiny. He subjects it to plain old “rational basis” scrutiny, which for most laws is basically a rubber stamp. That’s one of the most amazing things about the case: that given every opportunity, Prop 8’s defenders couldn’t put forward any rational public purpose that would be served by denying marriage to same-sex couples.
In general, as John K. points out, you seem to be overlooking about 150 years of history and precedent in 14th Amendment jurisprudence. Focusing exclusively on what one of the Amendment’s authors and a couple of committee chairs may have thought the language meant is quaint, but really not relevant. If that sort of thing were decisive, we’d have no need for the judiciary as a coequal branch of government.
Matt, your post flounders on this: “if marriage is a protection granted those who procreate.” It’s not, and that’s pretty self-evident. Marriage is neither necessary nor sufficient for procreation (and vice-versa), and it has ever been thus.
Charles Cook, you apparently don’t understand how juduicial evaluation of challenged laws works. The burden falls on a law’s defenders to justify its existence. However, with the “rational basis” analysis, Walker was actually giving Prop 8 every possible benefit of the doubt. It still came up short.
Scott, if this discussion is really the first time you’ve seen someone object to “separate but equal” treatment of marriage (vs. “civil unions”), then you’ve been living a very sheltered existence.
Jim AZtec, pass a law restricting marriage to people of “certain eyesight or height” and see how quickly it gets shot down. You seem unaware of the very concept of judicial review. The judiciary has had final say over the legitimacy of laws in this country since the very beginning; lawmakers have never been “free to outlaw whatever they feel is objectionable” without explaining why.
To me, what’s amazing here is how many people are ready and willing to decry this ruling without having the slightest clue about the argument it’s based on, or the underlying law and jurisprudence. They quite literally don’t know what they’re talking about, and when they get called on it they claim access to some higher truth that will somehow “trump,” oh, all of American constitutional history.
I think Judge Walker identified what’s really bothering these people, when he wrote: “The evidence shows that the
movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. … Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”
That may make some folks uncomfortable, but it’s a fact. A real one, not a “made up” one.
Could someone please explain to me how Judge Walker addressed Baker v. Nelson http://en.wikipedia.org/wiki/Baker_v._Nelson , which I believe should have been controlling precedent (and it was post-Loving)?
And you are not a believer in federalism, limited or division of powers it seems.
However, there is no such thing as substantive due process. You have to have us believing in the Easter Bunny for it to work. And if is is so well-established why did the civil rights act of ’64 require the commerce clause for its authority and not say substantive due process? That tells me there is nothing well-established about it.
I don’t think so. Liberty of the person was always viewed as freedom from arbitrary imprisonment. You can provide some examples of states treating dues process as substantive due process if you can, but I doubt seriosly you will be able to.
Now you are blowing smoke and sounding like a biased activists. Your sentence is easily refuted by history. I think the whole thing that started this substantive due process bullshit was
Gitlow, but even that ruling could find no evidence for substantive due process and instead was forced to “assume” that it did exist but only for the present case at hand and didn’t want it become precedent like morons today does.
Lochner era is back 🙂
Because the Supreme Court could find no fundamental right for same sex couple to marry under the federal constitution. Walker would prefer to keep that tucked away in a dark closet.
“Additionally, how do you maintain marriage as a fundamental right when state law is required to dissolve marriage?”
Checkmate.
Civil rights legislation relies on the commerce clause because it regulates private behavior, which is different from state action.
Oddly, Judge Waker argued that gender differences were irrelevant and that same-sex marriage opposition is similar to racism. So, let me get this straight (pardon the pun), if Mr. Jones says he won’t marry any woman unless she’s white, he’s a racist. But if Mr. Smith, a gay man, says that he won’t marry any person unless he’s a man, that’s okay? Why isn’t Mr. Smith open to diversity, like we expect Mr. Jones to be. No one, in mixed company, would brag about his love for white women and why he doesn’t like black or Asian women. But if a gay man says he just likes men and doesn’t like women, everyone thinks that’s cool. According to Judge Walker, the gay man is a bigot!
So, Judge Walker, by making distinctions between gays and lesbians (between male homosexuals and female homosexuals) and then between them and straights, he undermines his claim that gender distinctions are irrelevant.
This is universe, liberals. All this, just to make sure that everyone blesses the sort of sex you like. Your narcissism is annoying.
I’m sympathetic to this blog’s reading of the 14th amendment, and am curious where the logic leads. To take some rather ugly examples, and so push to principles to the extreme, could a state treat race or gender as a qualification for holding property? And, provided the penalties did not depend on the perpetrator’s race, could a state treat the killing of a person of one race as an offense different from the killing of a person of another race?
CJS, apropos Baker v. Nelson (which shot down a same-sex marriage case in 1972 in one sentence on the grounds that it raised no “substantial federal question”), since you evidently know how to use Wikipedia, perhaps you might look up Perry v. Schwarzenegger itself, and read the handy summary of the case’s history. To wit:
“In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson foreclosed any further review by the court. Failing that, the motion argued that all of the couples’ claims failed as a matter of law. After a two-hour hearing on October 13, Walker denied the motion. He noted that the Supreme Court doctrine on sexual orientation and gender discrimination had changed since 1972. Resolving the amendment’s validity, Walker noted, required hearing testimony at trial.”
I think we can all agree (whether we like it or not) that USSC doctrine on sexual orientation and gender discrimination has indeed changed dramatically, especially in light of Lawrence v. Texas. Under the circumstances, constitutional analysis somewhat more meticulous than a single sentence certainly seems appropriate.
Jim AZtec, you’re being awfully rude to Brian, who really only engaged in the debate about ubstantive due process for the sake of being polite. You’re wrong about SDP, but you seem to have missed the larger point that Walker’s decision does not rely on SDP anyway. It relies on Equal Protection analysis.
You’re squirming hard to try to sidestep the central point of that analysis “†that Prop 8 is quite simply not rationally related to any legitimate government interest.
You may believe deeply that the Equal Protection Clause shouldn’t be used that way because it wasn’t “intended,” but unless and until you can get the USSC to share your belief and overturn 150 years of precedent — and all the progress on behalf of individual liberty and against arbitrary government overreach that came with it — you don’t really have an argument here.
A central problem with the notion of “originalism” you espouse (and with “textualism,” different but closely related) is that it takes what was written as a short document embodying broad and enduring principles, and pretends it’s a detailed body of statutes whose drafters could anticipate every eventuality. Ironically, that’s manifestly in opposition to the express intent of the document’s framers, who you profess to respect.
Tommy Aquino, your attempt to put words in Walker’s mouth about black/white vs. gay/straight preferences doesn’t really merit the dignity of a rebuttal, but it’s worth underscoring its greatest flaw: none of this is even about personal preferences. Whether or not Smith or Jones is a bigot is completely irrelevant to determining their legal rights, which in each case should be to marry who they please.
Not only do I believe it but so does recorded history! And there isn’t 150 years of equal protection precedent, fool. It has drawn attention only in the last 30 years but still overshadowed by SDP. Again, if there is precedent like you say then why was a 15th or 19th amendment needed? A denial of woman suffrage surely would been seen as inherently unequal!! hahahaha
You seem to take delight in speaking of the progress of liberty that is nothing but court activistim that probably started with KKK Hugo Black.
….and courtesy of James Madison in Federalist Papers No. 10; “…..measures are too often decided,not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” Of course, he lacked the “social and scientific studies” claimed by the proponents everywhere except at trial.
This quote is better:
Kennedy will rely on Glucksberg and not Lawrence to uphold Prop. 8.
I agree with Mr. Madison’s equal protection analysis. Like Madison, I have a deep appreciation for the history behind written law then for later fractured court opinion that is often absurd in its conclusions.
Justin Raimondo, who is gay, summed up the gay’s movement entire sick position:
“The entire gay rights movement is based on the most unattractive, indeed pathetic motive imaginable”â€the need for acceptance.”Â
What a strange quote. Like there is actually a problem with another group of individuals trying to gain acceptance. What is even more funny the almost same exact quote was used by Andrew Strongson, an African American man who was a major supporter of states rights to descriminate during Civil Rights, His Quote was ““The entire black rights movement is about pride, the most unacceptable, indeed immoral reason imaginable”â€the need for recognition.”Â
Acceptance is a lot different than recognition. If Gays think they could legitimize their sexual relationship by attaching it to/ and riding on the coat tails of legitimate State sanctioned Government approved and Church ordained marriage, they are drop dead wrong. Perhaps they should quit seeking the approval of all these institutions and people and just live their lives.
This idea of using municipal law to force us into reinterpreting natural law to suit definitions having meanings that not only backed up by science as a biological fact of nature and natural law the laws of nature and natures god, but are fundamental reason marriage has the legal definition of “One man and One Woman”.
The french author Vatel was explicit in his explanation of Natural law and why the Government agreed with the church in this regard is because it happens to be a FACT the ONLY sexual type relationship having the potential to “merge” (or the French word Marry) the male seed (DNA) with the female, as one flesh.
Nature makes no distinctions for such silly ideas as “Marriage Equality” in fact, of the two types of sexual coupling or ANY OTHER sexual type relationships., they are anything BUT equal. The hetero sexual couple is UNIQUE for this reason.
Homosexuals, would have us believe, that the rectum, is as respectable, a receptacle, as the womb which has the potential to bring forth, a human life, moreover, a LOVE, far more worthy of our making. Marriage Laws came about as a result of that marriage of their DNA. Only hetero sexual couples could be the cause of Orphaned Children, inbred children.etc,.
So laws surrounding and ill add tailored to this type of sexually committed couple, were created to mitigate the problems society had for keeping those entering into this union, responsible for any offspring that typically came as a result of this kind ofo sexual relationship. It was this new civil union contract named after its Natural ability to marry (merge) the results of their sexual activity two as one flesh. Blood tests were added to mitigate inter marrying or inbreeding. Then polygamy was outlawed because of conflict of interest issues for yet one of the most important areas of this new contract and that of course was Divorce, especially where children are involved. Tax breaks were added because of the huge sacrifices parents had to make in raising these children.
Now Marriage never has kept gays from having sex and the entire construct of Marriage is ABOUT a phenomena, HOMOSEXUAL NEED NOT CONCERN THEMSELVES WITH, ISN’T ABOUT THEM AND DOESN’T APPLY TO THEM, PERIOD.
Understand, Marriage Laws are not a mandate a couple have children, but were created IN-CASE THEY DO have children.
Gay people have no BUSINESS trying to shoehorn their sexual bent, into this institution. To do so, is tantamount to having the Courts rule that PIGS can FLY.
Now the BIRDS, will tell the pigs, NO you can not fly, and the Pigs can call the birds haters and bigots if the want, but the pigs will never fly, The Pigs can initiate law suits against the birds forcing a redefinition of the word “FOWL” having pigs INCLUDED in that definition, but they will never be birds and they will never fly. The Pigs can cite the Ostrich claiming THAT’S Bird and it can’t fly so we should be birds too, but they will never be birds and pigs will never fly because NATURAL LAW and the Laws of Nature, HAVE BANNED IT! if you are a sperm cell swimming along in your gay lovers thinking you can marry (merge) your seed with what ever debris you run into in there, I don’t care WHAT the supreme court says,, GOD says,, YOU SWIM THE OTHER WAY,,
else you will be in a world
of SHlT.
Glucksberg is the logical choice for Kennedy since gay marriage doesn’t deal with privacy like Lawrence had. Freedom to choose your martial partner outside of marriage tradition is a weak equal protection argument even for Kennedy.
Very interesting how Bingham described the equal protection clause and how it was addressed by Howard and Stevens.
Jim, most of what you said in response isn’t really worth replying to since it’s mostly rhetoric with minimal warranted argument. However a couple points I will make:
I do believe in federalism and separation of powers. Where we differ is in our understanding of what those terms mean and how they are established by the Constitution. You seem to espouse a radical view of federalism that holds that states may do whatever they want, irrespective of individual rights protected by the Constitution or the Supremacy Clause. Regardless of what you would like, states don’t have unlimited power to do whatever they want; their powers are broad, but they are limited, just like the federal government is also limited (albeit in some different ways).
Regarding the CRA of ’64, it’s pretty easy to see why Congress used the Commerce Clause as justification for its enactment; the Reconstruction Amendments (13th and 14th) weren’t ratified yet. Since then, there have been multiple civil rights laws that rely on Congress’ enforcement powers under the 13th and 14th amendments (e.g., Voting Rights Act, 42 U.S.C. 1982, Americans with Disabilities Act). However, SDP has nothing to do with Congress’ power to enforce civil rights protections established by the Constitution.
Stay tuned for an inundation of SDP-recognition cases from the early- to mid- 19th century, leading up to the 14th Amendment… Unlike you, I’m perfectly willing to lay my cards down on the table for all to see, as opposed to relying on ad homs and unsupported conclusory statements.
You’re overreading what Kennedy wrote in the opinion regarding marriage. Kennedy actually said nothing about SSM, nor would he because to do so would be prejudging an issue that wasn’t in front of him — something the Court cannot do. He simply said, “[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Scalia also warns you not to read too much into this statement in his dissent: “Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ … Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of prescribing the conduct; and if, as the Court coos …, ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples…? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principal and logic have nothing to do with the decisions of this Court.”
Let me lay out why Lawrence is highly relevant, and why I believe Kennedy will also use it (in part) to uphold Vaughn’s Prop 8 ruling. In the Lawrence decision, Kennedy finds particular relevance in the Casey decision (another opinion he authored), and he says it “confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” He then says “the Constitution demands [] autonomy of the person in making these choices” and quotes a particularly broad statement about the scope of “liberty” in the 14th amendment from Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” He continues: “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” My takeaway: the right to choose whom to marry is fundamental and may not be infringed by the state (without a legitimate reason) because it is a private decision that is part of defining oneself.
Moreover, he eradicates two of the most common arguments against SSM, finding that they are not legitimate state reasons for a law. He quotes Stevens’ dissent from Bowers approvingly: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Kennedy says Stevens dissent from Bowers “should have been controlling in Bowers and should control here.” Similarly, O’Connor in her concurrence goes even further: “Moral disapproval of [gays and lesbians], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. My takeaway: tradition and claims about immorality are wholly insufficient to justify state laws that infringe individual fundamental rights and equal protection. This means Prop 8 advocates better have some good arguments about saving the kids that aren’t based on stereotype and homophobic bias. Indeed, Scalia’s dissent expresses that worry: “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”
Man, you are far crazier then I ever imagined.
Charles, you don’t understand how legal analysis is done in the context of constitutionality challenges. Do a little bit of digging into how these things are done and I think it will clear up your consternation with regard to all the discussion about ‘rational’. Once you understand things more, many relevant and valid objections to the court’s decision will be illuminated. Uneducated commentary has become the greatest weakness of this side of the debate. Sorry for singling you out.
Actually the flaw in your argument is the equivocation of couples with persons. 14A provides protection for a person, not for a couple. A couple is a fiction – an illusory thing. It is the relationship of two individuals. Whereas a person is an actual thing, ie, a real person.
So when viewed correctly, there is nothing wrong with Prop8, as it does not treat individuals any different. The gays have managed to use some pretzel logic and cite previous instances of judicial bungling that incorporated the same error, but that doesn’t change the intent or spirit of the law.
Interesting argument, but the very fact that a “straight” person can be born in the US, live and work abroad and marry a non-US citien, migrating back to the US with their spouse while I cannot do the same is exactly the point of equal protection.
The simple fact is – due to sexual preference I am prohibited from doing the same as a straight person. This is in essence the very definition of what equal protection should try to defend in terms of my rights.
Imagine yourself in my situation…highly educated US citizen – born and raised in the US – is sent abroad to work with a US company. As with most individuals I meet and fall in love with another person where I live and work. That is normally what happens. The only difference is very simple…due to sexual preference I cannot move back to the US with my partner…it is not recognized under US law. Therefore I do not receive equal protection as do other US citizens who fall and marry non-US citizens.
Where does that fit into the entire situation?
In their 1982 ruling regarding same sex marriage and immigration the 9th circuit court of appeals noted that procreation was a rational basis to deny marriage benefits to same sex partners; that it was obvious to the justices that Congress did not intend to extend preferential treatment to same sex enthusiasts.
It is quite obvious to me that same sex activists believe that the only portions of settled law that matter are those bits that appear to give special rights to perverts when taken out of context.
If you have to pervert intent to justify your position maybe it is time you reevaluate your decision making practices.
If you ever hear a conservative tell you they’re about the expansion of freedom…know that they’re lying to you. The phrase you need to know is “Authoritarian Conservative”.