Judicial Activism vs. Judicial Courage
(updated below--twice)
The Vermont legislature, by margins large enough to override a gubernatorial veto, has legalized same sex marriage, making it the first state to legalize gay marriage by purely legislative means. That's an enormous milestone in the movement for marriage equality and one that highlights the fast pace at which this issue is moving. Just five years ago, when the Massachusetts Supreme Judicial Court handed down its controversial 4-3 decision in Goodrich, the prospect of gay marriage in all fifty states seemed fanciful at best. Now there are four states in which gay marriage is legal and there will likely be several more in the next year or so. I repeat my prediction that, within a decade, the Supreme Court will strike down bans on gay marriage nationally.
Many conservative critics (at least the principled ones) are today praising Vermont for legalizing gay marriage the "right way," i.e., by a vote of the legislature and not by judicial decree. But I think that analysis vastly oversimplifies the issue. The reality is that what happened in Vermont today likely would not have happened but for the actions of judges in Massachusetts, and several years earlier, in Vermont. In 1999, in the landmark decision of Baker v. Vermont, the Vermont Supreme Court held that the state's ban on same sex marriage was unconstitutional and ordered the legislature to either permit same sex marriage or institute some alternative framework (civil unions) that would provide the same rights as marriage. That decision led directly to Vermont's first-in-the-nation civil union law. It also laid the legal groundwork for later decisions, including Goodrich.
Perhaps more importantly, however, these early judicial decisions changed the scope of the public debate. They forced people, for the first time, to grapple with the obvious tension between prevailing attitudes regarding gay rights and the inequality inherent in existing marriage laws. The fact that the world didn't collapse after gay people were allowed to enter into civil unions and then marriage also helped people adjust to the idea and get over their initial apprehensions. It changed public opinion. Without the court decisions that paved the way, it is very unlikely that this day would have come (at least at the speed it did).
Embedded in the conservative critique of "judicial activism" is the notion that any judicial decision that breaks with existing societal norms is necessarily a case of judicial overreach. But that notion is difficult to defend historically. Take, for example, the case of anti-miscegenation laws. These laws were on the books for a quite a long time before any judge had the courage to strike them down. In 1948, in Perez v. Sharp, the California Supreme Court struck down California's anti-miscegenation law, ruling that it violated the equal protection clause of the Constitution. This was the first ruling of its kind and it set in motion a movement that led to the overturning or repeal of such laws in a majority of states and eventually paved the way for the Supreme Court decision in Loving v. Virginia, which overturned such laws in all states.
Had the California Supreme Court refused to rule the way it did (or worse yet, upheld the law for fear of upsetting existing cultural norms) it not only would have been neglecting its duty, but it also would have slowed (perhaps dramatically) the country's progress toward meaningful equality. Today no one questions the correctness of the Perez decision from a legal standpoint. And that's important to remember. It proves that just because a panel of judges is the first to recognize something, just because a judicial decision upsets prevailing societal norms, doesn't mean it's an example of improper activism or "legislating from the bench." The first judge to say something is just as right as the last one to say it. Sometimes the right answer, from a constitutional perspective, is pretty clear; it's just that no one has the courage to stand up and say it.
Years from now, the basic legal argument underlying the gay marriage decisions in Massachusetts, Connecticut, and Iowa will be utterly uncontroversial and will seem obviously correct to just about everyone. No one will think that these courts were "legislating from the bench" by stating such obvious truths.
Judges have a role to play in our democracy besides merely confirming and enforcing the pronouncements of our legislatures. Sometimes they are called upon to give actual meaning to the words enshrined in our Constitution, even when legislators and their fellow judges have for decades (even centuries) chosen to ignore the logical implications of those words. Many of the biggest leaps forward we've had as a nation have been the result of judges who had the courage--in the face of contrary public opinion--to be the first to take the words of our constitution to their logical conclusion. I'm not saying judges never overreach. They sometimes do. But sometimes what seems like overreach is really anything but. This is one of those cases. The merits of these decisions will withstand the test of time.
UPDATE: I've been waiting for a conservative to make this bizarre argument, and Matthew Franck of the National Review comes through for me. Franck writes:
Franck is conceding that because judges ruled the way they did, the people of Vermont came to realize that gay marriage wasn't so bad, indeed, that it "seemed only just." He further concedes that had it not been for the various court decisions, people would not have reached this realization. He therefore laments that the courts ever got involved. How completely ass backwards is that?
Franck would rather live in a world where people were never challenged about their prejudices and were therefore never given the opportunity to overcome them. Indeed, he asserts that the people of Vermont's new found acceptable of marriage equality is somehow illegitimate because of the mechanism through which public opinion was changed. That's an incredibly bizarre way to look at the democratic process. Are current attitudes toward racial equality somehow tainted or illegitimate because they've been influenced by Brown v. Board of Education and Loving v. Virginia? Isn't it possible that opinions changed because people were persuaded by the correctness of those rulings? Isn't it possible that's also the case in Vermont?
The bottom line is that if opponents of gay marriage were "right" on the merits, then they wouldn't have to worry about court decisions somehow illegitimately swaying public opinion. They could be confident in the enduring power of their ideas. But they're not. They see that when people get used to the idea of gay marriage, they don't find it remotely scary or threatening. Indeed it "seems only just." That's why they're worried. They've lost the argument and they know it.
UPDATE II: My new favorite source of comic relief, the American Spectator's Robert Stacy McCain, has a great new post about gay marriage entitled a "A Hill to Die On." He writes:
This is a pretty hilarious post to put up the day before a state legislature approved gay marriage by an overwhelming margin. I wonder how McCain will fit that data point into his analysis. Probably by ignoring it. I wonder, though, if anyone has ever displayed a greater inability to interpret larger societal trends. How can any even marginally perceptive person not see the trajectory that popular opinion is headed on this issue? How can anyone think that the California Prop 8 vote (which opponents of gay marriage won by only the slimmest of margins) was anything but the last hurrah for gay marriage opponents in California? Or not notice that voting margins for gay marriage bans have been getting narrower and narrower every year?
McCain's post is the equivalent of someone writing a call to arms in 1980 entitled "The 8-Track Tape: A Hill to Die On." You have to be completely oblivious to what's going on around you and lack any understanding of demographic trends or the general course of history to believe that this is a battle that can be won. I have a feeling that even after the hill is taken, McCain will be like one of those Japanese soldiers in the South Pacific after WWII who--unaware or unwilling to accept that the war had ended--hid away in caves for years waiting for reinforcements. It's kind of sad really.
The Vermont legislature, by margins large enough to override a gubernatorial veto, has legalized same sex marriage, making it the first state to legalize gay marriage by purely legislative means. That's an enormous milestone in the movement for marriage equality and one that highlights the fast pace at which this issue is moving. Just five years ago, when the Massachusetts Supreme Judicial Court handed down its controversial 4-3 decision in Goodrich, the prospect of gay marriage in all fifty states seemed fanciful at best. Now there are four states in which gay marriage is legal and there will likely be several more in the next year or so. I repeat my prediction that, within a decade, the Supreme Court will strike down bans on gay marriage nationally.
Many conservative critics (at least the principled ones) are today praising Vermont for legalizing gay marriage the "right way," i.e., by a vote of the legislature and not by judicial decree. But I think that analysis vastly oversimplifies the issue. The reality is that what happened in Vermont today likely would not have happened but for the actions of judges in Massachusetts, and several years earlier, in Vermont. In 1999, in the landmark decision of Baker v. Vermont, the Vermont Supreme Court held that the state's ban on same sex marriage was unconstitutional and ordered the legislature to either permit same sex marriage or institute some alternative framework (civil unions) that would provide the same rights as marriage. That decision led directly to Vermont's first-in-the-nation civil union law. It also laid the legal groundwork for later decisions, including Goodrich.
Perhaps more importantly, however, these early judicial decisions changed the scope of the public debate. They forced people, for the first time, to grapple with the obvious tension between prevailing attitudes regarding gay rights and the inequality inherent in existing marriage laws. The fact that the world didn't collapse after gay people were allowed to enter into civil unions and then marriage also helped people adjust to the idea and get over their initial apprehensions. It changed public opinion. Without the court decisions that paved the way, it is very unlikely that this day would have come (at least at the speed it did).
Embedded in the conservative critique of "judicial activism" is the notion that any judicial decision that breaks with existing societal norms is necessarily a case of judicial overreach. But that notion is difficult to defend historically. Take, for example, the case of anti-miscegenation laws. These laws were on the books for a quite a long time before any judge had the courage to strike them down. In 1948, in Perez v. Sharp, the California Supreme Court struck down California's anti-miscegenation law, ruling that it violated the equal protection clause of the Constitution. This was the first ruling of its kind and it set in motion a movement that led to the overturning or repeal of such laws in a majority of states and eventually paved the way for the Supreme Court decision in Loving v. Virginia, which overturned such laws in all states.
Had the California Supreme Court refused to rule the way it did (or worse yet, upheld the law for fear of upsetting existing cultural norms) it not only would have been neglecting its duty, but it also would have slowed (perhaps dramatically) the country's progress toward meaningful equality. Today no one questions the correctness of the Perez decision from a legal standpoint. And that's important to remember. It proves that just because a panel of judges is the first to recognize something, just because a judicial decision upsets prevailing societal norms, doesn't mean it's an example of improper activism or "legislating from the bench." The first judge to say something is just as right as the last one to say it. Sometimes the right answer, from a constitutional perspective, is pretty clear; it's just that no one has the courage to stand up and say it.
Years from now, the basic legal argument underlying the gay marriage decisions in Massachusetts, Connecticut, and Iowa will be utterly uncontroversial and will seem obviously correct to just about everyone. No one will think that these courts were "legislating from the bench" by stating such obvious truths.
Judges have a role to play in our democracy besides merely confirming and enforcing the pronouncements of our legislatures. Sometimes they are called upon to give actual meaning to the words enshrined in our Constitution, even when legislators and their fellow judges have for decades (even centuries) chosen to ignore the logical implications of those words. Many of the biggest leaps forward we've had as a nation have been the result of judges who had the courage--in the face of contrary public opinion--to be the first to take the words of our constitution to their logical conclusion. I'm not saying judges never overreach. They sometimes do. But sometimes what seems like overreach is really anything but. This is one of those cases. The merits of these decisions will withstand the test of time.
UPDATE: I've been waiting for a conservative to make this bizarre argument, and Matthew Franck of the National Review comes through for me. Franck writes:
But let's not forget that the history of Vermont's struggle over this issue goes back ten years, to the state supreme court's decision in Baker v. Vermont, when the judges illegitimately instructed the legislature to choose between full-fledged marriage or civil unions with all the essential privileges of marriage. The legislature back then chose the latter, people in Vermont got used to the phenomenon of gay couples "all but married," and with that as the new starting point, the argument became compelling to enough Vermonters (or at least to enough of their legislators) that the final step to marriage seemed only just.Franck is conceding my basic point, that prior judicial decisions paved the way for today's democratic breakthrough, but is nevertheless trying to use this as evidence of the evils of "judicial usurpation." Think about that argument for a second.
Would same-sex marriage have arrived in Vermont in 2009 without the state supreme court forcing the issue in 1999? It's impossible to be certain, but I think probably not. So this is still, in part, a story of the leverage that judicial usurpation can produce in generating social change that legitimate representation of the people would continue to resist.
Franck is conceding that because judges ruled the way they did, the people of Vermont came to realize that gay marriage wasn't so bad, indeed, that it "seemed only just." He further concedes that had it not been for the various court decisions, people would not have reached this realization. He therefore laments that the courts ever got involved. How completely ass backwards is that?
Franck would rather live in a world where people were never challenged about their prejudices and were therefore never given the opportunity to overcome them. Indeed, he asserts that the people of Vermont's new found acceptable of marriage equality is somehow illegitimate because of the mechanism through which public opinion was changed. That's an incredibly bizarre way to look at the democratic process. Are current attitudes toward racial equality somehow tainted or illegitimate because they've been influenced by Brown v. Board of Education and Loving v. Virginia? Isn't it possible that opinions changed because people were persuaded by the correctness of those rulings? Isn't it possible that's also the case in Vermont?
The bottom line is that if opponents of gay marriage were "right" on the merits, then they wouldn't have to worry about court decisions somehow illegitimately swaying public opinion. They could be confident in the enduring power of their ideas. But they're not. They see that when people get used to the idea of gay marriage, they don't find it remotely scary or threatening. Indeed it "seems only just." That's why they're worried. They've lost the argument and they know it.
UPDATE II: My new favorite source of comic relief, the American Spectator's Robert Stacy McCain, has a great new post about gay marriage entitled a "A Hill to Die On." He writes:
. . . I disagree with some conservatives who say we should not expend much effort defending traditional marriage against the gay-rights insurgency.Good luck with that battle, buddy. Don't be surprised if you turn around someday very soon and find that your populist army has deserted you.
Some conservatives are wholly persuaded by the arguments of same-sex marriage advocates. Others, however, are merely unprincipled cowards and defeatists. Concerned about maintaining their intellectual prestige, some elitists on the Right do not wish to associate themselves with Bible-thumping evangelicals. Or, disparaging the likelihood of successful opposition, they advocate pre-emptive surrender rather than waging a fight that will put conservatism on the losing side of the issue.
Yet if the defense of traditional marriage -- an ancient and honorable institution -- is not a "hill worth dying on," what is? In every ballot-box fight to date, voters have supported the one-man, one-woman definition of marriage. As indicated by exit polls in California last fall, this is one issue where the conservative position is widely endorsed by black and Latino voters. Should such a potentially promising political development be abandoned? . . .
It is only by the activist rulings of judges and other officials, never at the behest of voters, that the radical crusade for same-sex marriage has advanced this far. We know which side the people are on. . . .
Having been given an inch, the radicals now attempt to take a mile. But this is a hill to die on.
This is a pretty hilarious post to put up the day before a state legislature approved gay marriage by an overwhelming margin. I wonder how McCain will fit that data point into his analysis. Probably by ignoring it. I wonder, though, if anyone has ever displayed a greater inability to interpret larger societal trends. How can any even marginally perceptive person not see the trajectory that popular opinion is headed on this issue? How can anyone think that the California Prop 8 vote (which opponents of gay marriage won by only the slimmest of margins) was anything but the last hurrah for gay marriage opponents in California? Or not notice that voting margins for gay marriage bans have been getting narrower and narrower every year?
McCain's post is the equivalent of someone writing a call to arms in 1980 entitled "The 8-Track Tape: A Hill to Die On." You have to be completely oblivious to what's going on around you and lack any understanding of demographic trends or the general course of history to believe that this is a battle that can be won. I have a feeling that even after the hill is taken, McCain will be like one of those Japanese soldiers in the South Pacific after WWII who--unaware or unwilling to accept that the war had ended--hid away in caves for years waiting for reinforcements. It's kind of sad really.
posted by A.L. at 12:52 PM
51 Comments:
Many conservative critics (at least the principled ones) are today praising Vermont for legalizing gay marriage the "right way," i.e., by a vote of the legislature and not by judicial decree. But I think that analysis vastly oversimplifies the issue.
I don't think so. The Constitution wasn't written only for lawyers to understand, although the left would have people believe it to be so.
They forced people, for the first time, to grapple with the obvious tension between prevailing attitudes regarding gay rights and the inequality inherent in existing marriage laws.
That isn't what was forced. The people were forced to adhere to the values of unelected judges.
For example, the Iowa Supreme Court "proudly" mentions how their court was the first to recognize civil rights in a case they mention as In re Ralph, as compared to the Taney court in Scott v. Sandford. The case itself, "In The Matter Of Ralph", was very different from Scott, and the opinion from Chief Justice Mason was one I could see Scalia writing (it was a conservative ruling). In other words, the Iowa Supreme Court in their ruling last week played politics, not any form of jurisprudence, something done by the left; they created a right out of thin air.
I notice there is one case that the left never mentions when it comes to gay marriage, Minnesota's Baker v. Nelson from 1971 (the first time a gay couple tried to get a marriage license). The court utterly rejected the equal protection argument being attempted. An appeal to the U.S. Supreme Court was dismissed outright, and they left the issue such that it would remain in scope until overturned, which it hasn't. Several rulings that rejected similar challenges cite Baker (source); it is interesting that the Iowa ruling never bothered mentioning it at all. Of course, the Iowa court was making a political statement, not a legal one.
No, the Constitution was not written for only lawyers to understand. It was written for everyone to understand. Which is why some of us are so entirely in shock that a document guaranteeing equal rights under the law to /everyone/ can be read to leave anyone out. The 14th Amendment protects all citizens equally and says no state can deny its citizens their rights as American citizens. The Constitution also specifically forbids bills of attainder targeting specific classes or groups within society.
Sodomy laws and bans on gay marriage are bills of attainder targeting homosexuals and thus unconstitutional, straightforward and simple. DOMA and state marriage restrictions and sodomy laws are unconstitutional. I understand why the right doesn't like it, but that doesn't make you right.
Sorry.
Sodomy laws and bans on gay marriage are bills of attainder targeting homosexuals and thus unconstitutional, straightforward and simple.
Sodomy isn't an act exclusive to homosexuals. In regards to gay marriage, it means that I, as a heterosexual, have the right to marry a male friend of mine, and then go on having sex with women. Whether or not we (the two males) have sex would be immaterial; although it kind of defeats the purpose of same-sex marriage if the couple doesn't actually consummate the marriage.
So if these rules are true, then how can anyone say these laws exclusively target homosexuals?
SteveIL: "The Constitution wasn't written only for lawyers to understand, although the left would have people believe it to be so."
This was so stupid and meaningless and WRONG that I didn't even bother to read the rest of his comment.
"The people were forced to adhere to the values of unelected judges."
How were people actually coerced into consenting to the values of the judges? You are not saying that people were coerced into marrying people of the same gender are you? Just because something is legal, by case law or by constitution, does not therefore even imply coercion to observe it. I don't have to carry and conceal even though in my state it's perfectly legal to attain a permit to do so. Nor do I have to like the idea of carry and conceal permits. None of that law coerces my behavior in anyway.
"how can anyone say these laws exclusively target homosexuals?"
Because the issue is not sodomy no matter how you want to bait and switch the issue of marriage with a red herring. The issue is of legitimacy. To say that a homosexual relationship carries the same level of legitimacy as a heterosexual one based on "civil unions" and so forth is like asking a slave to be happy with the scraps toss from the table. After all it's food right? As I have argued in many places, it is not an issue of rights, it is an issue of unequally distributed privileges that marriage allows and this inequality is rooted in the illegitimacy of two people of the same gender to partner in the eyes of the law. If both kinds of relationship are equally legitimate, DOMA and other laws are constitutional. Since there is no equality of legitimacy between relationships, either change the definition of marriage, or exclude it as a function of the state altogether.
what is clear is that the law needs to be reinterpreted and then changed so that relationships are legitimated on equally rational and secular bases. Good for the judges for doing their jobs by interpreting the poor laws that are in the books.
Drew Tatusko:
How were people actually coerced into consenting to the values of the judges? You are not saying that people were coerced into marrying people of the same gender are you?
That isn't what it means. The Iowa ruling was a values-based judgment, one that is supportive of same-sex marriage, not one based in the law.
To say that a homosexual relationship carries the same level of legitimacy as a heterosexual one based on "civil unions" and so forth is like asking a slave to be happy with the scraps toss from the table.
So, a same-sex couple living in a state that doesn't allow that relationship to be considered a marriage is akin to slavery? I've heard that argument before and reject it as nonsensical.
As I have argued in many places, it is not an issue of rights, it is an issue of unequally distributed privileges that marriage allows and this inequality is rooted in the illegitimacy of two people of the same gender to partner in the eyes of the law.
First off, privileges aren't the same as rights. Even a heterosexual couple isn't entitled to those privileges until they sign that little piece of paper called a marriage license. A same-sex civil union is no different except that the relationship is not called a marriage. Second, and this is a question, what do you mean by legitimacy (or illegitimacy), and how does the law fit in?
As I've mentioned above, the definitive case on this is Baker v. Nelson (I linked to it in my first comment). That ruling found the equal protection argument for gay marriage unsustainable.
As I've mentioned above, the definitive case on this is Baker v. Nelson (I linked to it in my first comment). That ruling found the equal protection argument for gay marriage unsustainable.
Baker was a state court interpretation of the federal constitution. It has no applicability to any state's law or constitution. Simply because a law may not violate federal equal protection does not mean the law doesn't violate state equal protection. Iowa had no need to mention it because the court was interpreting Iowa law.
And the Dredd Scott Decision found a black man was not a citizen with legal grounds to sue. Plessy vs. Ferguson ruled that racial segregation was legal. They were definitive cases.
Bad decisions happen, good judges overturn them. Precedent is part of the law, but the letter and spirit of the law must be used to judge whether or not a precedent is valid.
Baker v. Nelson was a bad decision guided by bigotry, in the same vein as Plessy v. Ferguson, and the Iowa court was right to make a ruling more in line with the reality of the law.
And sodomy laws are exclusively written (and enforced) to target homosexuals, just as the Mann Act was exclusively written (and enforced) to target black men with white girlfriends or wives. Pretending otherwise is intellectual dishonesty on a grand scale.
As for the marriage analogy you make, that is even worse. One is (according to Loving v. Virginia) free to marry the person one wishes to make a life with. Discussions of heterosexual men marrying is a straw man unworthy of being voiced, let alone taken seriously as an argument.
SteveIL:
"The people were forced to adhere to the values of unelected judges."
No one's forcing you to marry a gay man. No one's forcing you to do anything, except quit ruining the chance of other human beings to marry the person they love. "In other words, the Iowa Supreme Court in their ruling last week played politics, not any form of jurisprudence, something done by the left; they created a right out of thin air."
Steve, I'm very interested to find out if you actually read the case. The full text pdf was posted in the last topic about the Iowa case that you tried to talk about. But to address that last comment, the "right" being enforced here is the right to be with the person you love, get all the benefits of marriage, and, yes, I know it pains you, though I know not why - but call it "marriage" as well. That's the right to live and let live; life, liberty, and the pursuit of happiness. In other words, your right to be bigoted ends where it meets someone else's right to be happy without your interference! "I notice there is one case that the left never mentions when it comes to gay marriage, Minnesota's Baker v. Nelson from 1971 (the first time a gay couple tried to get a marriage license). The court utterly rejected the equal protection argument being attempted. An appeal to the U.S. Supreme Court was dismissed outright, and they left the issue such that it would remain in scope until overturned, which it hasn't. Several rulings that rejected similar challenges cite Baker (source); it is interesting that the Iowa ruling never bothered mentioning it at all. Of course, the Iowa court was making a political statement, not a legal one." . . . . As I've mentioned above, the definitive case on this is Baker v. Nelson (I linked to it in my first comment). That ruling found the equal protection argument for gay marriage unsustainable."
Briefly: Minnesota Supreme Court precedent can be overruled by the Minnesota Supreme Court at any time, so it's not even the last statement on the issue in Minnesota. As for it's controlling or precedential effect on Iowa law...it's non-existant. There is absolutely no reason for Iowa to mention a 38 year old case from another jurisdiction, and to argue otherwise just shows that you do not know what you're talking about.
SteveIL:
"The people were forced to adhere to the values of unelected judges."
No one's forcing you to marry a gay man. No one's forcing you to do anything, except quit ruining the chance of other human beings to marry the person they love. "In other words, the Iowa Supreme Court in their ruling last week played politics, not any form of jurisprudence, something done by the left; they created a right out of thin air."
Steve, I'm very interested to find out if you actually read the case. The full text pdf was posted in the last topic about the Iowa case that you tried to talk about. But to address that last comment, the "right" being enforced here is the right to be with the person you love, get all the benefits of marriage, and, yes, I know it pains you, though I know not why - but call it "marriage" as well. That's the right to live and let live; life, liberty, and the pursuit of happiness. In other words, your right to be bigoted ends where it meets someone else's right to be happy without your interference!
"I notice there is one case that the left never mentions when it comes to gay marriage, Minnesota's Baker v. Nelson from 1971 (the first time a gay couple tried to get a marriage license). The court utterly rejected the equal protection argument being attempted. An appeal to the U.S. Supreme Court was dismissed outright, and they left the issue such that it would remain in scope until overturned, which it hasn't. Several rulings that rejected similar challenges cite Baker (source); it is interesting that the Iowa ruling never bothered mentioning it at all. Of course, the Iowa court was making a political statement, not a legal one." . . . . As I've mentioned above, the definitive case on this is Baker v. Nelson (I linked to it in my first comment). That ruling found the equal protection argument for gay marriage unsustainable."
Briefly: Minnesota Supreme Court precedent can be overruled by the Minnesota Supreme Court at any time, so it's not even the last statement on the issue in Minnesota. As for it's controlling or precedential effect on Iowa law...it's non-existant. There is absolutely no reason for Iowa to mention a 38 year old case from another jurisdiction, and to argue otherwise just shows that you do not know what you're talking about.
Eclectic Radical:
And the Dredd Scott Decision found a black man was not a citizen with legal grounds to sue. Plessy vs. Ferguson ruled that racial segregation was legal. They were definitive cases.
Bad decisions happen, good judges overturn them.
Scott wasn't overturned by another court case. Plessy took nearly 50 years to get overturned. The only other case that is worthy of derision as those two is Roe, and that's nearly 36 years old. Baker, on the other hand, isn't such a decision, even though most of the same Justices that dismissed it were the ones who ruled for Roe.
...just as the Mann Act was exclusively written (and enforced) to target black men with white girlfriends or wives.
Along with boxer Jack Johnson, sociologist William Thomas, comedian Charlie Chaplin, gangster Isadore Blumenfield (aka Kid Cann), and poet Elizabeth Smart were all arrested under the Mann Act. Only Johnson was black; all the others were white. That also makes your argument about sodomy laws highly suspect.
One is (according to Loving v. Virginia) free to marry the person one wishes to make a life with.
Baker referred to Loving and still rejected the equal protection similarities.
nerpzillicus:
Baker was a state court interpretation of the federal constitution...Iowa had no need to mention it because the court was interpreting Iowa law.
Except that the Iowa court referred to both California's In re Marriage Cases and Connecticut's Kerrigan decisions to their decision. I would say the Iowa court was politically selective in the cases they wanted to refer to. It's the same as their politicization of the Ralph case.
And Baker wasn't simply a state decision. The Supreme Court dismissed the appeal of the Minnesota Supreme Court Baker ruling on merit, meaning that dismissal stands until explicitly overturned.
Steve, I know that website you linked to made you fall in love with the Baker decision, but it's really quite irrelevant here.
The U.S. Supreme Court dismissed the Minnesota appeal "for want of a substantial federal question."
Baker, at both the Minnesota state level and the federal level, had no precendential effect whatsoever on the Iowa Supreme Court when it interprets an Iowa statute under the Iowa Constitution.
If you think the Iowa decision has anything to do with the federal Constitution, then clearly you have not read the case.
Anonymous (5:18pm):
If you think the Iowa decision has anything to do with the federal Constitution, then clearly you have not read the case.
I have read the case. I say the Iowa court selectively referred to the cases that were politically relevant to their decision.
And Baker wasn't simply a state decision. The Supreme Court dismissed the appeal of the Minnesota Supreme Court Baker ruling on merit, meaning that dismissal stands until explicitly overturned.
but again, it only had to do with federal law. it was not pertinent to state law. Iowa did not have to cite to any other state or the feds to rule the way it did.
But the other reason is that baker is not very persuasive. it is a poorly reasoned case, and the more modern cases have more analysis. the Iowa Supreme Court probably decided not to mention it so not to drag the Minnesota Supreme Court's name through the mud. the logical conclusion of baker was "But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." That's it. really, its not that impressive. It's how you avoid actual analysis - claim the solution is so clear that you don't have to prove it. We did it all the time in math class. When you get to a really hard part of the work in a proof, but you know what the answer should be, just say "clearly" or "obviously", and hope your audience is too embarrassed to ask how you make the next logical leap.
Beware anyone who utilizes grand adjectives in logical reasoning.
I kinda wish they would have brought Baker up so they could have beaten it up a little, but Iowans are really polite.
Somehow, I have a hard time seeing Roberts, Alito, Thomas, and Scalia voting to overturn bans on gay marriage. And since all of them are relatively young, it's hard to see one of them departing the court in the near future.
As with almost everything else, that would give Kennedy the decisive vote. Anyone care to share their thoughts on how he might rule on this question?
Kennedy wrote the opinion of the court in Lawrence v. Texas (2003), the case that struck down anti-sodomy laws. My prediction is that Kennedy will author the decision that finally creates marriage equality. He'll want it to be his legacy. It will be a 5-4 opinion, and it won't happen any time real soon. But six or seven years from now? I think so.
It occurs to me to wonder: how do those who complain so loudly about "unelected judges" deal with the fact (if they know) that several states, including California that I know of, actually do have elected/electorally confirmed judges? We elect them; when so moved, we even recall them. And yet those judges (many originally put on the State Supreme Court by Republicans) somehow rule in ways that the complainers don't like.
But then, if you manage to ignore an act of the Vermont legislature, I guess you've already abandon the "unelected" complaint. Must be just the end of the world that is worrying you....
nerpzillicus:
but again, it only had to do with federal law. it was not pertinent to state law. Iowa did not have to cite to any other state or the feds to rule the way it did.
Apparently they did since they cited California and Connecticut cases. About the only thing about those cases is that they matched the politics of the Iowa Supreme Court.
wj:
But then, if you manage to ignore an act of the Vermont legislature, I guess you've already abandon the "unelected" complaint. Must be just the end of the world that is worrying you....
The complaint isn't what the Vermont legislature did, because that is where political issues are resolved.
Comment from National Review quoted above:
[Vermont] supreme court's decision in Baker v. Vermont, when the judges illegitimately instructed the legislature to choose between full-fledged marriage or civil unions with all the essential privileges of marriage.
That's not what the Court said. The Court ruled that the then-status quo violated the Common Benefits clause of the Vermont Constitution. That's what courts hearing constitutional claims do. Then, instead of telling the Legislature what to do by imposing a judicially created solution (i.e., by legislating from the bench), it instructed the Legislature to solve the Constitutional problem. Sure sounds like judicial restraint to me.
"Scott wasn't overturned by another court case. Plessy took nearly 50 years to get overturned. The only other case that is worthy of derision as those two is Roe, and that's nearly 36 years old. Baker, on the other hand, isn't such a decision, even though most of the same Justices that dismissed it were the ones who ruled for Roe."
The fact that Plessy took fifty years to be overturned does not change the fact that it was overturned or that it was overturned correctly. Comparing Plessy to Roe is silly, even if one doesn't like Roe. A precedent recognizing implied rights and a precedent violating explicit rights (namely, in the case of Plessy, the citizenship rights of Americans as guaranteed by the 14th Amendment) cannot be compared at all, Roe in no way violates explicit rights. The only argument that it does is based on religious dogma and not law.
The dismissal of Baker was wrong for the same reason that Taney's dismissal of Scott was wrong (though at least they did not compound the error by ruling on the case after it had been dismissed)... and the Fourteenth Amendment and Loving v. Virgina remove any ambiguity about the question, if one wishes to argue that ambiguity justified Scott.
"Along with boxer Jack Johnson, sociologist William Thomas, comedian Charlie Chaplin, gangster Isadore Blumenfield (aka Kid Cann), and poet Elizabeth Smart were all arrested under the Mann Act. Only Johnson was black; all the others were white. That also makes your argument about sodomy laws highly suspect."
Yes, some prominent white celebrities were prosecuted under Mann. However, the bulk of Mann prosecutions were against black men 'consorting' with white women during the same era as Johnson's prosecution and there is a large bulk of both anecdotal and documentary evidence (including congressional minutes) supporting the deliberately racist motives for the passing of Mann. It later became a convenient political weapon against unpopular celebrities, that does not change the facts of its origins. Again, sorry.
Eclectic Radical:
A precedent recognizing implied rights and a precedent violating explicit rights (namely, in the case of Plessy, the citizenship rights of Americans as guaranteed by the 14th Amendment) cannot be compared at all, Roe in no way violates explicit rights. The only argument that it does is based on religious dogma and not law.
For many, Roe most assuredly violates explicit rights, the right of the unborn human. A human fetus developing in a mother's womb is just that, a human; while in the womb, the fetus doesn't change species or develop into some other species or some inanimate object. The latter statement isn't based on religious dogma but on scientific fact.
The dismissal of Baker was wrong for the same reason that Taney's dismissal of Scott was wrong... and the Fourteenth Amendment and Loving v. Virgina remove any ambiguity about the question, if one wishes to argue that ambiguity justified Scott.
Scott was used by the Iowa Supreme Court to make a political statement, not a legal statement, as was the case of their political use of the In The Matter Of Ralph ruling. The only bearing Scott had in any of this is that the 13th and 14th Amendments overturned it, and neither Scott or Ralph has any relevance to gay marriage.
In Baker, the Minnesota Supreme Court explicitly rejected petitioner's use of Loving:
But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
The U.S. Supreme Court's dismissal of a further appeal upheld the ruling and the language within, including the rejection of Loving as an argument for gay marriage.
However, the bulk of Mann prosecutions were against black men 'consorting' with white women during the same era as Johnson's prosecution and there is a large bulk of both anecdotal and documentary evidence (including congressional minutes) supporting the deliberately racist motives for the passing of Mann. It later became a convenient political weapon against unpopular celebrities, that does not change the facts of its origins.
It seems to me you are doing a good job of revising the facts around the origins of the Mann Act. Based on what is here (which cites numerous sources), your opinion about its origins aren't supported.
I would also note that the Mann Act was part of a series of actions by "progressives". The progressives were attempting to push a certain morality on all of America. Today's "progressives", just like those of the past, are doing the same thing, but pushing a different morality. But instead of trying to convince people to support those views, they go the lazy route through the courts.
The view that SteveIL is so hell bent on avoiding is that gay men and women are fully human. They are made in the image of God exactly as they were intended to be. There is no sin, mistake or inherent disorder in a homosexual orientation. It is as it should be.
That view undermines a host of his preconceived notions about how the world is ordered and he can’t handle it. If you don’t like gay people or gay marriage SteveIL than you need to take that up with God.
One thing about conservatives like SteveL and Robert Stacy "Save that Hill!" McCain -- they certainly are not afraid to stand athwart history and yell Stop! -- even when history is about to leave tire tracks on their flat heads.
What's interesting, though, is how conservatives, so intent on limiting the civil rights of other people, still insist that conservatives are the true defenders of liberty, while liberals and progressives are a pack of crypto-fascists and moralizers, etc. etc.
But that's a subject for psychology, not the law, history or political science.
Steve Il writes: "In regards to gay marriage, it means that I, as a heterosexual, have the right to marry a male friend of mine, and then go on having sex with women. Whether or not we (the two males) have sex would be immaterial; although it kind of defeats the purpose of same-sex marriage if the couple doesn't actually consummate the marriage. So if these rules are true, then how can anyone say these laws exclusively target homosexuals?"
Steve, you are bending over backwards, with a double pike and twist, to imagine a scenario where a gay marriage ban could conceivably target anyone other than gays and lesbians. You know, and I know that's ridiculous and simply being able to imagine a situation in which, you, a straight man, might (for reasons you leave utterly unexplained) marry another man doesn't make the gay and lesbian targetting of the ban any less obvious. By your own admission, as a heterosexual your unwillingness or inability to consumate a gay marriage "kind of defeats the purpose" of the union. So, if no conceivable purpose exists for that marriage, how can you reasonably cite it as an exception to the obvious gay and lesbian targetting of the ban?
Therefore, since any such ban does effectively target and disenfranchise gay and leabian citizens, I can only re-iterate the earlier point so concisely argued by Eclectic Radical:
"The 14th Amendment protects all citizens equally and says no state can deny its citizens their rights as American citizens. The Constitution also specifically forbids bills of attainder targeting specific classes or groups within society."
I can understand and even sympathize with your sincere discomfort on this issue. I've had beloved relatives who felt comparable discomfort with changes to racially targetted laws, including marriage, in the 50's and 60's. They weren't overtly bigoted or unfair people, but the (largely inherited) views they held were. While some of them could never admit they were wrong, the wisest among them eventually could and did. In all sincerity, for your sake, I hope you find the wisdom, humility and humanity to eventually join them and bravely acknowledge the Constitutionally enshrined equal rights of your fellow citizens.
Best regards.
In all sincerity, for your sake, I hope you find the wisdom, humility and humanity to eventually join them and bravely acknowledge the Constitutionally enshrined equal rights of your fellow citizens.
I will in the case of gay marriage when someone shows a legal equal protection violation of not allowing same-sex couples to marry instead of the usual political diatribes.
It's very interesting that, in the excerpt AL cited, Matthew Franck hinges his critique of judicial "activism" re gay rights on the term "legitimate". Which is only par-for-the-course in these sorts of discussions, since, obviously Franck seems willing to only grant "legitimacy" to any change in law or policy that has a outcome he approves of. And of course, when it comes to allowing gay people to have their unions recognized as "marriages" (or indeed at all), there is NEVER any approval in the cards at all.
It is as predictable as the rotation of the Earth: any judicial interpretation of the law to allow legal consideration of gay unions is considered "illegitimate" because it isn't a "legislative" solution. And now that we have a legislative action, it still isn't "legitimate" because it's somehow "undemocratic". And if gay marriage in Vermont, say, was ALSO approved by a majority in a referendum (unlike virtually any other type of law, which is assumed to be valid if properly passed and approved by the relevant courts, but never mind) - would that finally shut the gay-marriage-is-the-end-of-the-world fringe up?
I doubt it, "marriage" per se is virtually a peripheral issue: prejudice is the main point, and homophobes will always find some reason to keep it alive.
Steve IL writes: "...when someone shows a legal equal protection violation of not allowing same-sex couples to marry instead of the usual political diatribes."
C'mon Steve. Do you acually have to be shown, in painstaking detail, the 100+ ways in which a same-sex couple that seeks, but is not allowed, to marry has less rights legally than a married heterosexual couple? Really? Where would you like to start? Taxation, immigration, spousal benefits, inheritance, hospital visitation, housing, insurance, custody, adoption? There are, I believe at current count, 147 outstanding legal inequities between the 2 groups. As countless court rulings have established, any of those clearly constitutes an equal protection violation. And yet, when a court rules that precisely such a violation exists, you protest that the 'unelected' judiciary is legislating from the bench! You require legal ajudication on equal protection violation, but when it is so ruled you reject the finding as judicial overreach!
I think we both know that this isn't really about law, logic or equity. Those arguments have been well and truly made and if you were genuinely objecting on those grounds, you'd have acknowledged the baselessness of those objections some time ago. I believe your objections are based on traditional discomfort and personal distaste and you are seeking to justify those irrational, and frankly unprincipled, motivations with increasingly implausible rhetorical distractions. It's never easy to acknowledge a deep-seated or personal prejudice, but sometimes it's the only option upon finding oneself at a logical or philosophic impasse. Good luck with that.
I think we both know that this isn't really about law, logic or equity.
It is absolutely about the law. It is absolutely about judges using the law to force people to adhere to their personal and political values couched in legalistic verbiage. That's called tyranny. Nobody in this country gave judges that right.
In this post by AL, he makes this statement:
Marriage was created by human beings and human beings can choose how they want to define it.
Not according to the vast majority of religious people in the world. They believe marriage was created and sanctioned by God, and it is in place in various religious texts (including the Bible). Now he can believe what he wants about who created marriage, but he isn't allowed to force me to agree to that opinion, just as a judge isn't authorized to force me to agree with their opinions, especially on a matter related to religion (the 1st Amendment).
All of those items you mention, statutes on taxation, immigration, etc., those didn't just come out of thin air; someone had to write them. At the time they were written, same-sex relationships weren't even considered. OK, so now they do need to be considered. Pass civil union statutes, and then change those other statutes to reflect those civil unions. That's how it is done.
Steve, I will say this again, because it is clearly not getting through: the dismissal of Baker was the equivalent of the ruling in Plessy... a ruling made on the basis of prevailing cultural attitudes about human rights that obscured proper, open minded consideration of the Constitution, legal precedent (Loving), and natural rights. The dismissal of Baker was WRONG. I'm sorry if you don't like it, but judicial review is an important part of the checks and balances of our system. Worse, it appears that conservatives are not really opposed to judicial review, just to rulings they don't like.
The gay rights movement is not an attempt to force a moral system on America. It is part of a large and comprehensive attempt to stop people like you from doing so, and I am getting really tired of the victim rhetoric from the right. The religious right is not defending America from secularism any more than the KKK was protecting America from race war in 1920. It's bigotry, plain and simple.
just one question, why do you assume Frank has a prejudice?
Your opionion right and just, his opinion, not the same, must be prejudice?
Great argument! I'm changing my views now. Thanks.
.and wait, that last comment, 'victim rhetoric from the right', holy hell, I almost split a gut.
"I repeat my prediction that, within a decade, the Supreme Court will strike down bans on gay marriage nationally."
So you agree that the only way to stop gay marriage is a constitutional amendment?
Steve, it sounds like you just don't like judicial review in general.
Do you think the Supreme Court was wrong to overturn segregation in Brown v. Board of education? Did they exceed their constitutional authority by overturning segregation laws that had been passed by democratically elected legislatures?
Do you think the Supreme Court was wrong to overturn a law that didn't allow blacks to marry whites, in Loving v. Virginia? Did the Court exceed its authority there? After all, those anti-miscegenation laws were passed democratically!
Seriously, do you think a court overturning a law is always wrong, in and of itself? If so, then you're not just arguing against gay marriage, you're arguing against our entire legal system ever since Marbury v. Madison.
Either you think judicial review is always wrong--it's a bad concept, the courts shouldn't be able to do it. OR, you just think it's wrong when courts overturn laws that you like. If it's the latter, then you're in good company. If it's the former, then, well, you would've been even more annoying to listen to back when Loving or Brown was decided.
So you agree that the only way to stop gay marriage is a constitutional amendment?
No. I don't think it can be stopped period. The ship has already sailed on a constitutional amendment. There aren't enough states to pass one now.
Over the next decade, an increasing number of states will legalize same sex marriage. At some point--as happened in Loving v. Virginia--I think the Supreme Court will weigh in and settle the issue. If not, I think Congress eventually will. It will take longer if its the latter, maybe 15 to 20 years.
"Not according to the vast majority of religious people in the world." Well, except for Islam, Old Testament examples of Judaism, and the original tenets of Mormonism with the approval of polygamy; various forms of polyandry across history, and with communal societies which shared parental responsibility across the group. "They believe marriage was created and sanctioned by God, and it is in place in various religious texts (including the Bible)." (see above, Solomon, David). "Now he can believe what he wants about who created marriage," as can you "but he isn't allowed to force me to agree to that opinion," nor are you, or your "vast majority of religious people", "just as a judge isn't authorized to force me to agree with their opinions, have you ever heard of contempt citations? "especially on a matter related to religion (the 1st Amendment)." although the majority of American persons accept that the judiciary has the authority to interpret the law; I recall something about 10 Commandments in the courthouse, religious displays on public property, etc., that have delineated the role of religion in government, generally decided by judges.
Marriage was created by human beings and human beings can choose how they want to define it.
Not according to the vast majority of religious people in the world. They believe marriage was created and sanctioned by God, and it is in place in various religious texts (including the Bible). Now he can believe what he wants about who created marriage, but he isn't allowed to force me to agree to that opinion, just as a judge isn't authorized to force me to agree with their opinions, especially on a matter related to religion (the 1st Amendment).
Ahhhh - but you are confusing the concept of civil marriage with religious marriage. For instance, if the justice of the peace marries two people, the Catholic Church will not recognize the marriage, because in the Church's mind, the marriage was not conducted with God involved, etc.
However, if you have some small Christian denomination that has a wedding ceremony, but no wedding certificate or witness signatures, the State may not recognize your religious marriage. (This is why some ceremonies have the "by the authority vested in me by the State of X" stuff in it).
The state (and A.L.) can honestly say civil marriage is a creation of the State (it is). At the same time, you can believe, and the State cannot make you believe otherwise, that religious marriage is anything other than a construct of God. (think of it this way, would you recognize the marriage of two atheists as a religiously sanctioned marriage?)
But they are clearly two different things. We're talking about civil marriage, created by humans, and changeable by humans. And when it comes to civil marriage, you better believe the State can tell you what is an what is not a marriage.
Gay people seek the same civil marriage rights as their fellow citizens. The States are discriminating against these people, and denying them equal protection under the law (there really is no legal analysis that can lead one to another conclusion). Thus, the courts are right (when there is no constitutional amendment banning gay marriage) to declare statutory bans unconstitutional. It really is that simple.
On the other hand, I would agree if someone attempted to make your church recognize a social construction of civil marriage that goes against your religion's principles, there would be a significant problem. Luckily no one is seeking equality under religious standpoints, only equality under the law. If someone did try and make your church recognize something it fundamentally disagreed with, I would be there (holding my nose) defending your right to define your religion as you see fit. The ACLU probably would too.
nerpzillicus, the problem is that the religious right completely fails to differentiate between civil and religious marriage for reasons similar to those you cited regarding the Catholic Church... only the proper religious marriage is legitimate in their eyes. If they do recognize civil marriages, they consider the institution itself to be identical with religious marriage. Hence the social dysfunctions of R.S. McCain or Steve in reaction to the idea of gay marriage.
Many on the religious right believe civil marriage, itself, is a usurpment of the church's authority. Yet if you said the government should stop recognizing marriage and took their tax breaks away, they would throw a conniption.
Eclectic Radical:
The gay rights movement is not an attempt to force a moral system on America. It is part of a large and comprehensive attempt to stop people like you from doing so, and I am getting really tired of the victim rhetoric from the right.
My argument is and remains judicial activism. Period. If, for some reason, the Vermont or U.S. Supreme Courts overturn the new Vermont law just enacted, I would be arguing against it just as I'm arguing about what the Iowa Supreme Court did. The equal protection argument used by the Iowa court to justify their opinion is flawed, as I've shown. In addition, their references to various cases (Ralph, Scott) were used to make a political statement, not a legal one. The whole ruling is one long political statement.
...the dismissal of Baker was the equivalent of the ruling in Plessy... a ruling made on the basis of prevailing cultural attitudes about human rights that obscured proper, open minded consideration of the Constitution, legal precedent (Loving), and natural rights.
That is a Constitutional philosophy, one of a "living" (changing, without amendment) Constitution, that I don't adhere to, nor should judges and Justices.
Anonymous (9:42pm):
Do you think the Supreme Court was wrong to overturn segregation in Brown v. Board of education?
Do you think the Supreme Court was wrong to overturn a law that didn't allow blacks to marry whites, in Loving v. Virginia?
Those have nothing to do with gay marriage.
nerpzillicus:
For instance, if the justice of the peace marries two people, the Catholic Church will not recognize the marriage, because in the Church's mind, the marriage was not conducted with God involved, etc.
That isn't true. Plus, it depends on whether or not one or both of the parties had been received into the Church (baptized and confirmed Catholics). Also, a couple who did get married in a civil ceremony, and the couple become Catholics, their marriage is automatically recognized provided the marriage was entered into under the same provisions as a Catholic marriage. As far as couples married into a civil ceremony who were never Catholics and never join the Church, I don't think that's even relevant to the discussion.
On the other hand, I would agree if someone attempted to make your church recognize a social construction of civil marriage that goes against your religion's principles, there would be a significant problem.
Yes it would. That's why gay marriage, much like everything else, via the legislative process is the proper venue for these kinds of things. Rulings like the one in Iowa (as well as California, Connecticut, and Massachusetts) don't address issues fully, relying instead on making political points than legal ones. It's the same reason why Roe v. Wade has been so contentious for 36 years.
For instance, if the justice of the peace marries two people, the Catholic Church will not recognize the marriage, because in the Church's mind, the marriage was not conducted with God involved, etc.
That isn't true. Plus, it depends on whether or not one or both of the parties had been received into the Church (baptized and confirmed Catholics). Also, a couple who did get married in a civil ceremony, and the couple become Catholics, their marriage is automatically recognized provided the marriage was entered into under the same provisions as a Catholic marriage. As far as couples married into a civil ceremony who were never Catholics and never join the Church, I don't think that's even relevant to the discussion.
Uh, yeah, it is true:
If a Catholic girl is married by a judge, may she receive the sacraments? Can she be remarried in the Catholic Church later? Can she go to Mass on Sunday?
Catholics are obliged to observe the laws of the Church regarding marriage. Unless dispensed from the "Catholic form of marriage" by a bishop, a Catholic who married otherwise than before a priest and two witnesses entered a marriage which is illicit and invalid in the eyes of God and of His Church. It is no marriage at all. A Catholic in such a situation may not receive Holy Communion and were she to do so, the heinous sin of sacrilege would be added to the other mortal sins committed. Such a Catholic, however, would still have the obligation of attending Mass on Sundays and holy days. Any Catholic in an illicit and invalid union should consult with a priest to see if the union could be convalidated by the Church. If there is no canonical obstacle for the marriage, this can be done.
http://www.dioceseoflincoln.com/purple/marriages/index.htm#2
Sure, there are ways of fixing it so the Church considers the couple married. But that is the point – if you don't follow the Catholic Church's rules on marriage, it does not consider you married. You are legally married, though. So there is a difference between the religious marriage and the civil marriage. And that is the key point. So, yes, it is also relevant that the Catholic Church does not recognize a marriage between two non-Catholics, because the state recognizes them as married.
On the other hand, I would agree if someone attempted to make your church recognize a social construction of civil marriage that goes against your religion's principles, there would be a significant problem.
Yes it would. That's why gay marriage, much like everything else, via the legislative process is the proper venue for these kinds of things. Rulings like the one in Iowa (as well as California, Connecticut, and Massachusetts) don't address issues fully, relying instead on making political points than legal ones. It's the same reason why Roe v. Wade has been so contentious for 36 years.
Why is the ruling in Iowa political and not legal? You have yet to place one reason why it is wrong. Seriously, no one is trying to make religions recognize these marriages. No one. The issue doesn't come up because (a) no one is asking for it, and (b) there is no conflict between individual freedom of religion and the equal protection of a State's citizens in this context. I assume you are against Heller (invalidation of DC's gun ban), right? Are you against Brown v. Board? Lopez and Morrison? Marbury v Madison? Are you claiming anytime a court strikes down a law it is activism? If so, what prevents legislatures from passing unconstitutional laws? Would you support a law passed by the legislature forcing all religious institutions in the State to recognize gay marriages? Who will strike down that law without being activist?
SteveIL said:
"Marriage was created by human beings and human beings can choose how they want to define it."
Not according to the vast majority of religious people in the world. They believe marriage was created and sanctioned by God, and it is in place in various religious texts (including the Bible).
And that's fine, and no one would argue with you about their right to believe that. And no one and nothing says they have to like the court decision. But that very 1st Amendment you cite makes the question of what people believe about God not a legitimate consideration for a court. And a definition of marriage, which depends on a belief or a lack thereof in God is a definition of marriage a United States court has no right to consider in determining the constitutionality of a law.
Now he can believe what he wants about who created marriage, but he isn't allowed to force me to agree to that opinion, just as a judge isn't authorized to force me to agree with their opinions, especially on a matter related to religion (the 1st Amendment).
And you can believe what you want about who created marriage, and I can too. But it's not relevant. What's relevant is whether a civil institution, that happens to go by the label "marriage", that grants certain rights, is granting those rights fairly and equitably, or not, and if not if that's constitutional. That's it. Religion has, by requirement no place in the matter of American law.
Eclectic Radical said:
The gay rights movement is not an attempt to force a moral system on America. It is part of a large and comprehensive attempt to stop people like you from doing so
That's really the heart of the matter, and the basis of most if not all of the points made by the court. Allowing gay people to marry does not infringe on the rights of anyone else to marry, or believe in anything or in fact any other right. Not allowing them to marry does infringe on their rights to be treated equally under the law. That is the core of what makes laws forbidding gay people to marry violations of guarantees of civil rights.
nerpzillicus:
You're original statement was:
if the justice of the peace marries two people, the Catholic Church will not recognize the marriage, because in the Church's mind, the marriage was not conducted with God involved, etc.
Now you are trying to qualify that with something not in the original statement, that one or both people in the marriage are Catholic. The rules for baptized and confirmed Catholics are different than those that haven't been received in the Church. But you didn't say that in your original statement. As far as the rules of the Church are concerned, so what? Those are Church rules for Catholics who want to stay in the good graces of the Church. There is nothing wrong with that. If the couple doesn't like it, they can leave the Church. I did.
I assume you are against Heller (invalidation of DC's gun ban), right?
Nope. DC was clearly violating the 2nd Amendment. So is every other city and state with similar bans.
Are you against Brown v. Board?
Nope.
Lopez and Morrison?
Don't know it.
Marbury v Madison?
Nope.
Are you claiming anytime a court strikes down a law it is activism?
Nope. In fact, activism can take place if it upholds an unconstitutional law (e.g., if Heller had been ruled in favor of DC).
Seriously, no one is trying to make religions recognize these marriages.
That is untrue:
"County clerks have no legal standing to grant county employees the authority or ability to choose which marriages they wish not to officiate at, based on their personal views or biases," [City Attorney Rocky] Delgadillo wrote. The court "has been crystal clear on this issue — same-sex couples must be afforded equal protection under the law."
First, the court is not crystal clear on this. Second, it's a violation of a citizen's 1st Amendment right to freedom of religious expression. Had county employees been fired over the issue, LA County could have been hit with a winnable (by the fired employee) discrimination suit (California's Constitution does not allow discrimination based on someone's religious views). With the passage of Prop. 8, that obviously changed. So there was at least one attempt to force recognition of marriages that people don't believe, for religious reasons, are marriages.
Steve, are you being deliberately obtuse?
Forcing government employees whose job it is to marry people to recognize certain people as married is NOT the same thing as making religions or religious organizations recognize those marriages as legit.
And yes, despite your opinion, it's perfectly okay to fire someone for not doing their job. And no, despite your obvious complete lack of experience in actually trying cases, the employee would not win a wrongful termination suit because their "1st Amendment rights were violated." That's like saying an Amish justice of the peace (if such existed) would have a 1st amendment claim when he's fired for refusing to electronically file a marriage certificate with the state. After all, it's his religious beliefs! Wah, wahh, he's being discriminated against! The state can't force him to act against it!
Uh, yes it can. It's HIS religion, and no one else's. He cannot impose his beliefs on others when acting in his official capacity. THAT, my obtuse friend, would be a violation of the 1st amendment. And his employer (the state) would win on summary judgment, you moron.
Gah. Sorry for the language, Steve. Your determination coupled with your ignorance just drives me up the wall.
Anonymous (1:42pm):
Forcing government employees whose job it is to marry people to recognize certain people as married is NOT the same thing as making religions or religious organizations recognize those marriages as legit.
The last time I checked, the U.S. Constitution guaranteed individual rights, including the free exercise of religion. That isn't being obtuse.
You're absolutely correct, Steve. He can exercise his freedom of religion. He can also be quite legally fired for not doing his job.
Your liberty to swing your first ends where the other man's nose begins. You can't step on other people's rights in the guise of "exercising your own rights."
As for Brown and Loving, of course they weren't gay marriage cases. Don't be obtuse. We're not saying they were. We're saying they were cases where the Supreme Court quite legally and correctly overruled one of those democratically-legitimate statutes you're so hot about. Why? Because the laws violated the constitution. The Iowa Supreme Court decided that the Iowa anti-gay marriage statute violated the Iowa constitution. So they overturned it. That's why we're making the comparison: to prove that you don't really have a problem with courts overturning a law in general; you only have a problem when they do something you don't like.
Anonymous (4:17pm):
He can also be quite legally fired for not doing his job.
I'm the conservative, so in theory, I'm supposed to be the one who believes the world is "black and white". Yet, even I know that the statement isn't true under certain conditions.
Religious expression isn't just what one does at a church, temple, or mosque; it also extends to the values one takes from the religion into everyday life. To force someone to do something in complete contradiction to those values is discrimination against that religious expression.
And before anybody cites the military, consider that today's U.S. military is entirely voluntary. The job of the military is to defend the nation by lethal force against America's enemies. Every person who volunteers for military duty must know that their job may include killing, and if they have a problem with it, then joining is probably a bad idea for such individuals. Even when there was conscription, there was an out for those soldiers who had an aversion to killing (my former father-in-law used this out and was able to get non-combat duty; I never considered him to be anything but brave, because he was still stationed in harm's way).
Conversely, county employees do more than just issue marriage licenses. So firing one solely for not signing off on marriage licenses to same-sex couples that the employee doesn't believe, for religious reasons, should be allowed to be married, is discriminaton, considering the employee does other tasks completely unrelated to issuing marriage licenses.
The Iowa Supreme Court decided that the Iowa anti-gay marriage statute violated the Iowa constitution. So they overturned it.
I've reread the whole opinion. It is a political statement disguised as a legal ruling. The whole thing could have been written by lobbyists for gay marriage.
So firing one solely for not signing off on marriage licenses to same-sex couples that the employee doesn't believe, for religious reasons, should be allowed to be married, is discriminaton, considering the employee does other tasks completely unrelated to issuing marriage licenses.
Steve, your just flat out wrong about this as a matter of constitutional law. Consider a hypothetical employee who refused to sign off on marriage licenses between interracial couple (citing religious beliefs). Would it also constitute religious discrimination to fire that employee? Of course not. This is no different. The "out" the employee has is to quit and find another job. But state employees don't have the option of not doing their jobs because it conflicts with their religious beliefs. Find me even a single case that supports your view.
It is utterly false that conscientious objector status was easy to get in the days of the draft. It was far more common for people -- such as a guy I grew up with -- to end up in prison if they persisted in claiming they were conscientious in objecting to being a part of an organization that kills people.
And, just to make the situation ironic, this person was openly gay (or as openly gay as was permitted back then). Today, he'd be prevented from serving, rather than being sent to prison for two years (and this was back when prison meant hard time).
And, by the way, the "all-volunteer army" seems to rely an awful lot on
a) people who have the choice between starving and a couple of tours in Iraq and Afghanistan.
b) people who joined the reserves or national guard and ended up in Iraq and then stop-lossed.
It isn't a coincidence that an unprecedented number are getting out of the military via suicide. If their service is so "voluntary", the high suicide rate seems out of place.
Meanwhile, a person holding down a sinecure, who, only a few weeks ago the likes of Steveil were claiming didn't even have a "real" job, should be able to claim some "religious" opposition to other people doing something perfectly legal? The hypocrisy smells two states away.
I think waiting for Steve to ever admit he's wrong will be quite a long wait.
C2H50H:
It is utterly false that conscientious objector status was easy to get in the days of the draft.
I didn't say it was easy. I said it was available.
Today, he'd be prevented from serving, rather than being sent to prison for two years (and this was back when prison meant hard time).
What a Democratic Congress and President took away, a Democratic Congress and President can put back. I'm actually surprised they didn't do something already. While there might have been some squawking from my side of the aisle, I think any Congressional opposition would have been overcome.
AL:
Consider a hypothetical employee who refused to sign off on marriage licenses between interracial couple (citing religious beliefs). Would it also constitute religious discrimination to fire that employee? Of course not. This is no different.
There is a huge difference. Even the Iowa ruling acknowledges there is a difference between race and sexual orientation. This difference was the basis for the Minnesota Supreme Court in Baker to reject the use of Loving in the plaintiff's argument in that case, along with other cases that cite Baker.
On the other hand, and in my opinion, a 1st Amendment challenge by the hypothetical county employee in the scenario you describe would fall apart due to Loving.
I understand that the 1st Amendment isn't some kind of blanket amnesty for someone to do anything they want. But there is no proof that the kind of discrimination that led to Loving is the same as in this case.
On the other hand, and in my opinion, a 1st Amendment challenge by the hypothetical county employee in the scenario you describe would fall apart due to Loving.
!!!!! Steve, do you realize that you're blatantly contradicting yourself now? This entire discussion started because you claimed that the 1st Amendment rights of Iowa county clerk would be violated because he now has to give out marriage licenses to gays, something that goes against his religious beliefs. We said that's not a 1st Amendment violation because state workers have to follow the law (and gay marriage is now allowed by law in Iowa; just like interracial marriage is). In other words, the situation in Iowa is now directly analogous to the interracial marriage situation, i.e., a court ruling requires the state to allow it. Why would Loving bar a 1st Amendment claim but the recent gay marriage ruling not do so? You're not making any sense at all.
You claiming that a 1st amendment challenge would not succeed because of Loving. The same exact thing is true of re: the recent Iowa decision. If your job is to give out marriage license in Iowa, you have to give them to anyone the law allows. You can't refuse to do so because your religion says gay marriage is wrong or that interracial marriage is wrong or that interreligious marriage is wrong.
Steveil,
So you think gays were allowed to serve until that right was "taken away" "by the Democrats"?
AL:
I think we're both wrong; me for thinking that a county employee could be fired if they deny a marriage license to an interracial couple but not for denying one for a same-sex couple based on religious expression, you for thinking the county employee could be fired for denying a marriage license to anyone and that religious beliefs don't enter into the picture.
I had mentioned earlier that LA County was planning on forcing county clerk employees to issue marriage licenses to same-sex couples, regardless of religious beliefs. That was in this May 19, 2008 San Francisco Chronicle piece. A month later, however, this this June 21, 2008 LA Times piece said the following about the same thing in San Diego County:
Several employees of the county clerk's office have been reassigned to other duties because they expressed "sincerely held religious objections" to gay marriage, County Clerk Gregory Smith said Friday.
No employee is being allowed to perform marriage duties involving only heterosexual couples, Smith said. Instead, employees are being shifted to other duties that do not include issuing marriage licenses, officiating at civil weddings or acting as witnesses.
Smith cited Government Code Section 12940, which requires an employer to explore "any available reasonable alternative means of accommodating the religious belief or observance [of an employee], including the possibilities of excusing the person from those duties that conflict with his or her religious belief."
The law in question, a state statute, is here, under subsection (l). It looks like some individuals in various California county governments did take the religious aspect very seriously.
It looks like this subsection would cover a county employee from having to issue a marriage license to either an interracial couple or a same-sex couple for religious reasons. If you believe a county employee denying a marriage license to an interracial couple for religious reasons is ridiculous, I would agree with you. But I'm not sure firing an employee for denying a marriage license would stand up to scrutiny.
Now, Iowa's Unfair employment practices law doesn't seem to have the "reasonable alternative means of accommodating the religious belief" bit, nor can I tell if this law covers county employees. But I would assume that Iowa's laws for government employees are fairly similar to those in California and the other states.
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