The defeat of the federal marriage amendment in the Senate on Wednesday was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate.
The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court “victory” for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.
We’ll continue to see this amendment, of course. It will rise from its grave every two years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it stumble blindly forward again (as Justice Scalia once memorably said about the Lemon test for religious establishment). It’s the living dead.
All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 98-2, or thereabouts. And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. So, for example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and our delicate relations with the Principality of Liechtenstein. I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed to be exploiting. Even my beloved federalism argument can sound, in the wrong mouth, like “the states should be allowed to do this godawful thing if they want to.” Forgive me for not finding much inspiration in that.
Then came the news, the same day, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the near future anyway, whether by legislative or judicial action, so not much is immediately lost. But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered “no,” we’re going to be stuck with these state amendments, adopted in a time when we didn’t know any better. More precisely, “we” won’t be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.
With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it’s a good idea. It’s not exactly the same as having a federal amendment, but it’s the next worst thing.
Related Posts (on one page):
- The amendment is dead, long live the amendment:
- Gays, Federalism, and Minority Rights:
- Video of panel on marriage amendment now available online:
- The New York Times and the federal marriage amendment:
- Bush to retract support for a federal marriage amendment in Monday speech, news report says:
- Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?
- Another prominent conservative against a federal marriage amendment:
- Is Marriage a Federal Issue?
- Against a constitutional amendment banning gay marriage:
Also, there have been a fair number of courts that have sided with gay marriage, including in some conservative-leaning states. Witness also the surprise pro-abortion decision in conservative Tennessee by the state supreme court. The constitutional amendments also prevent a special interest capture of the majority party scenario, which happens all too often in American democracy.
Note the map is a little out of date only been updated to Nov 15 of 2005
http://www.thetaskforce.org/downloads/marriagemap.pdf
Citations please, and what does "sided with gay marriage" mean?
SSM opponents could have proposed an alternative amendment, along the lines of "Nothing in this Constitution, or in any Amendment thereto except where explicitly provided, shall be interpreted to assert federal authority to define or govern either marriage, or any legal structure with the characteristics of marriage." Such a "disclaimer" amendment would have served the same putatively intended purpose, while leaving states free to set their own marriage laws as they see fit (and all without even explicitly referring to same-sex couples).
But nooooooooooooo, they had to get greedy and push for a constitutionally enshrined, nationwide outright ban on SSM, and it came back to bite them in the arse. Serves them right.
I actually think you are overlooking the substantive victory underlying the notion that this issue simply isn't very important. The chief argument (at least the chief argument people are willing to make in public) against gay marriage is that it would put the entire institution of marriage at risk, which is a serious matter. Insofar as people are starting to see gay marriage as a minor issue, I think it represents a growing sense that these fears are overblown, and that the entire institution of marriage really isn't being threatened.
You're against a Fed Marriage Amend and also against State action, the nexus of federalism, so what's left, roll over, stop breathing and no options for dissenters?
You appear certain of the future on two counts; a] that people will most certainly change their minds on gay marriage. b] that the state amendments passed are irrevocable. A clashes with B, historical examples available on request.
History informs us that women occupied the country in 1776. It also informs us that the XIX amendment was passed in 1920, indicating that in the remnants of our system time is not necessarily of the essence or it's symbol Winged Mercury.
clean,decent Americans" speech, debate over the amendment has been truly edifying. Wonderful job, Senators!Yes it (and the entire Civil War) was, in fact that period marked the beginning of the end of federalism; and yes it was working well. Slavery was on its way out, and would have ended with or without the Thirteenth Amendment.
I believe that Dale's worry is that in many states, there will be a long lag between popular acceptance of gay marriage and legal recognition of it. Which is a reasonable concern--the fact that women eventually got the vote doesn't do much for all the women who lived without the vote before that point.
That said, I also don't know how sticky these state measures in fact will be. So, there might not be a really long lag.
That is simply not true, and is repeated only by the most fervent Southern apologists and the various libertarian factions that view Abe Lincoln as second only to Adolf Hitler in evil.
Slavery in decline in its expansion (see, e.g. Bleeding Kansas), but there is absolutely no evidence of any move toward abolition in the locations where it formed the bedrock of the economy- in fact, it remained largely undisturbed following the Civil War through the quasi-serfdom of sharecropping.
But then again, I'm a pessimist about these kinds of things.
As I understand it, Dale's view is that SSM is something that ought to be decided at a state level (and he would like the states to support it). Other people think that SSM is something that ought to be decided at a state level (and they would like the states to make/keep it impossible). There is nothing inconsistent or self-contradictory about saying: "I am glad that the amendment has been defeated, although it now leaves proponents/opponents of SSM to argue at the state level where in some cases the going is very tough if you support SSM."
I don't see anything that says that the anti-SSM team is not entitled to argue their views. You can say you disagree with someone without denying their right to argue, can't you? As to who is "attacking" and who is "defending" ... who cares if the fight is fair?
Let's not forget Vitter's comment that that the FMA was the most important issue facing America at this time. And that guy's from Louisiana. Guess they got that Katrina cleanup all taken care of.
That is a nice over-simplification and a great way to write off those you disagree with by not even looking at the facts, or history.
The fact that four slave states refused to secede, or that four others refused to secede until President Lincoln called for troops to supress the rebellion, speaks volumes about the shakiness of the institution to begin with.
I am from the South, and no one I know views President Lincoln as "second only to Adolph Hitler in evil." This ignornant statement makes me wonder if you know any southerners personally, or if you get all your inside information from TV.
You should visit the South. Atlanta has been quite beautifully rebuilt since it was burned down, and we have gotten our mullet epidemic under control.
Slavery would have eventually ended, although probably not for another 75 years or so. President Lincoln did us all a favor by ending this shameful blot on our history when he did.
Sounds more like an argument for a constitutional amendment banning earmarks.
Yeah, how dare people attack the anti-SSM position, almost as if they had a right of free speech or something. Shocking.
Now, if someone wants to make a case for gay marriage being as unjust as slavery, and a violation of fundamental individual rights (the allowance of gay marriage, not the lack thereof), I'd be interested to hear it.
However, the voters of Alabama still elected Roy Moore chief justice. I wouldn't say the South is quite out of the woods yet.
On the other hand, northern states enacted "personal liberty laws" that attempted to defend fugitive slaves. Those laws, however, were virtually preempted by the federal Fugitive Slave Act of 1850, whereby the federal government was committed to assist masters in recapturing their slaves.
During the period 1850-61, federal troops were repeatedly used to drag fugitives back to the south, over the objections of free state governments.
Since the proposed amendment doesn't have majority support, perhaps the majority of the country doesn't want Washington to dictate how marriage should operate in their state?
That way any state who through their own legislatures or voting of its citizens wants to ban gay marriage, a federal judge or state court judge would be without authority and for the federal judge without jurisdiction even to make any ruling impugning the validity and enforceability of a state established no gay marriage statute or state constitution provision.
With such rewording it would be EASY to refocus the senate debate on the changes as NOT being a federal constitutional ban on gay marriage but a federal constitutional GUARANTEE of the rights of the people in each state either directly or through their ELECTED representatives to establish that's state's policies on gay marriage and be assured that such policy will NOT ever be overturned by an unelected judge.
It would be ideologically consistent with conservatives traditional thoughts on federalism, it would be the PROTECTION of citizens rights in each state to establish public policy in that state without interference from the largely unelected and always unrepresentative political branch of government (i.e. judges), and it would be far easier to sell as having nothing to do with gay rights but everything to do with citizens rights and federalism.
Says the "Dog"
It seems to me that once you admit to yourself that gay people exist in our society, that they form families and have kids, and that they are not simply going to vanish and nothing short of a draconian crackdown can get rid of them, your attitude on this issue can't help but change. Because then you have to think "well, they're here. I may not like it, but I can't change it: how do we make the best of it?" And the answer is certainly not to strive to make there be LESS families in society, or to make certain families MORE dysfunctional.
What percentage of the population was affected by the Terry Schiavo law?
Of course, gay marriage would not tell all of society how to operate--just the gay people who got married.
Be careful, or you will be giving people ideas! Surely even a draconian crackdown would not get rid of us/them.
This observation explicitly contradicts your claim that slavery "was on the way out." If it truly was in any sort of danger, why would several slave states be content to remain in the Union? Fears of the Confederacy aside, Abraham Lincoln had declared his desire to leave slavery intact- indeed, the Emancipation Proclamation only applied to slaves in CSA-controlled territories. Slaves in the border states, as well as slaves in Union occupied territory like New Orleans, were kept in bondage.
In any event, seeing as I happen to live in the South (Virginia, so not the Deep South, but still), I don't see what your point is, especially since I live in southern Virginia.
The comparison of Lincoln to Hitler is often made by the more wild-eyed members of the Libertarian Party. I assure you that these people exist in small, but obnoxiously vocal, numbers.
Medis latched on to the point I was attempting to make (albeit quite sarcastically) - federalism is not, and has never been, the only concern of the Constitution, despite the "oh no federalism!" attempt to argue against this particular Amendment.
This is a point often overlooked by the federalism ueber alles stereotyping of conservatism by people such as Dale, as well as that emphasized by the rabid libertarians I mentioned earlier. It would be no different than the equally snarky and hollow rejoinder "but I thought you conservatives wanted to CUT TAXES!" when the program being supported was viewed as vitally important, such as the military.
That's the crux of the matter. In the view of the religious right, gay people don't exist. They're just straight people who've been abused or neglected as children, or have some moral weakness that hasn't been cured yet. Heck, Bush's pandering on the issue even extended to inviting one of those "ex-gay" freaks to his White House press conference supporting the FMA.
This is just an aside, since the anti-gay marriage folks themselves would kill any merely jurisdictional amendment, but I don't see how applying such an amendment to state court judges doesn't trigger the same federalism concerns. If states want to limit the jurisdiction of their own courts or provide constitutional rules limiting the interpretative power of their own courts, they can do so. So, resolving the issue of what state courts can do with respect to this issue at the federal level is still contrary to federalism.
Incidentally, if there is indeed a legitimate national concern about the power of state court judges (and I personally think that is a matter for each state to decide), why is this issue limited to gay marriage? As with so many other aspects of this debate, it seems oddly coincidental that these general principles in practice only justify action with respect to gay people.
Contrast the rhetoric on abortion, namely that appointing judges who will overturn Roe v. Wade is the plan, so that the issue of abortion can be decided where it should be - in state legislatures. So why aren't state legislatures competent to decide what sort of marriage arrangements they want as well?
I seem to recall Sen. Hatch proposed something along the lines of a purely federalism amendment the first time around back in 2004, but was quickly shot down by the leading lights of the religious right. No, SSM must be banned, and banned in the federal constitution before a state legislature enacts it and a governor signs it. That's the plan.
Easy answer: state legislatures would need to vote to approve a proposed amendment.
More abstract answer: it is a preference for democratic processes, at either the state or the federal level (or both) to judicial invention.
If a court, state or federal, tells the people that they must accept SSM, then the people are not creating the society they want. Thus in this sense, a court would be telling society what it must allow. Since no reasonable reading of the constitution could validate SSM nor the does the history of the United States (or the world for that matter) justify its judicial enshrinement via SDP, a court ruling forcing the acceptance of SSM would violate popular sovereignty. Furthermore, it would probably do more damage to the proponents of SSM than merely "waiting it out." After all, if an individual state wants to allow SSM or civil unions, I'm all for it. Giving the people what they want as long as it's not unconstitutional is how our form of government works. Unfortunately for Dale, instant gratification (of a minority position) was not looked upon with much favor by the founders.
I thought Dale had the same position you do. I don't think he's arguing that the federal constitution mandates SSM.
As an aside, I don't think it is right to say that judicial review is not a democratic process. Judges are representatives of the people, regardless of whether they are appointed or elected (and many state judges are elected). When they exercise judicial review, they do so on the authority of laws approved by the people (typically in the form of a constitution). In that sense, although judicial review is not direct democracy, it is well within the scope of representative democracy and republican ideals.
But anyway, part of my point is that if we think state courts exercising judicial review should be a violation of the federal constitution, why not propose an amendment to that effect? Why limit the amendment to just this one issue?
LN,
You say: "If a court, state or federal, tells the people that they must accept SSM, then the people are not creating the society they want."
As an aside, no court can tell people to "accept" SSM. At most, they can tell a state government that it must allow gay couples access to the legal institution of marriage.
Anyway, based on your own analysis, even if gay couples gain access to the legal institution of marriage, the people opposed to gay marriage will still be creating at least 99% of the society they want.
Unless polls lie, a large majority of the US population are united with me in favoring a democratic solution to this problem. As renegade courts in other States run roughshod over the democratic process, I suspect public frustration and support for an amendment will grow. This issue is NOT going to fade away anymore than abortion has. Judges can illegitimately make law, but without the support of the population at large their usurpations will ultimately not succeed. Those who think otherwise are deluding themselves.
Believing that there will be a longterm shift in public opinion about an issue as basic as this is foolhardy. Age data on public opinion about abortion have shown the same pattern for over four decades. It may appear that the aging of young people ( and the death of older ones ) will change the pattern of support for fundamental restructurings of society on issues like right to life and homosexual marriages, but as persons age and gain experience with the realities of life, they tend to become more conservative on fundamental issues. For a fraction of a percent of the population to believe that a fundamental institution of all human societies will eventually be changed to suit their ideological fancies is a form of wishful thinking that may eventually lead to political suicide.
I'm sure the fact she is foreign born is critically relevant.
I see. The "way the Massachusetts constitution is written" doesn't reflect the will of the people? I suspect by "political realities in the Commonwealth" you mean nothing more than that there is very little support in the legislature for a state constitutional amendment. If you don't like that fact, elect different legislators. If you can't do so, don't complain about the "will of the people" not getting implemented.
A federal constitutional amendment doesn't require a national referendum or any vote of the voters in any state. All it requires is the approval of Congress and state legislatures. So because you don't like a state court decision you can change, either by electing a governor who will appoint different judges, or electing different legislators who will amend the constitution, you're willing to accept a federal amendment that doesn't require the approval of a single person in your state but will bind every person in your state?
In every single state that there has been a refendum, marriage has been defined as one man and one woman. As we live in a republic, the people, through either our elected representatives or through the referendum process, make the laws. Courts trying to re-write laws that go so overwhelmingly against the way the people want them to be strikes of judicial tyranny.
If proponents of SSM want it to be protected, then they should work to convince enough people that its the right thing to do. After all, slavery wasn't abolished by the courts, but by Congress and the states.
When courts overreach, elected representatives must step up. It's not as if our laws are handed down to the courts from on high - they are passed by legislatures. When courts like the one in Massachusettes step so far across the line like they did, it's only natural for the will of the people to be refocused.
I keep nominating her for a "My favorite African American" essay when my kids have to write one, but they keep telling me that the assignment is to judge people by neither the content of their character nor their continent of origin, but only by the color of their skin, and so she's not eligible.
Unlike AppSocRes I'm not from Massachusetts, but I've been living here some 25 years, and there is certainly a vocal group that is aghast at the turn of events, but I'm not so sure it's a "large majority" -- most of the folks I know, out in non-Cambridge-but-still-inside-128 suburbia, are more concerned with schools and property taxes and the Church and the Sox and the Pats and the rain, and don't actually worry that much about what other people do most of the time.
If opponents of SSM are so confident that people will never be convinced of it, then they don't need a federal constitutional amendment that would prohibit state legislataures from adopting it.
And interracial marriages had even less public support at the time of Loving v. Virginia than same sex marriages do today.
The 13th Amendment argument against gay marriage has unfortunately been overlooked in scholarship. I personally consider it a compelling argument against marriage in any form.
No, a court cannot force the people to privately accept a decision, but if they tell them that they cannot ban SSM, ipso facto the court is telling them that they must publicly allow it and state sanction it. And if it is state sanctioned, it has assummed "popular approval."
You are not serious are you? Law is a zero sum game. The people do not have the society they want even if an occurence happens 1% of the time. Should we not outlaw polygamy because it only affects 1% of the population? Robbery? Murder?
Why would it take a Supreme Court victory? Don't you think a Circuit Court victory, coupled with cert. denial, would do the trick? Let's say, for example, that the 9th Circuit legalized gay marriage? You don't think the FMA would come back?
Moreover, I don't think that it would even take a Circuit Court "legalizing" gay marriage to change the dynamic. What if the 9th Circuit merely held that the Full Faith and Credit clause required all the states in the 9th Circuit to recognize Massachusetts gay marriages? That, too, would change the dynamic, don't you think?
Yes, that is the crux of the matter. If all are considered equal under the law, why are women prevented from enjoying a right that all men have? How is applying the law fairly making law?
If proponents of SSM want it to be protected, then they should work to convince enough people that its the right thing to do. After all, slavery wasn't abolished by the courts, but by Congress and the states.
Sure, slavery was formally abolished by Congress and the states--costing hundreds of thousands of lives in the process, including the President's! And this didn't prevent slavery-by-other-names from continuing, either.
If every opponent of SSM dislikes court decisions thwarting the supposed will of the people, what about Brown v BOE? Should blacks in the South have worked with their state legislatures to end segregation? Somehow I don't think that would have worked.
I said earlier:
Thus, I have not advocated for an insta-democracy nor have I been glib in assuming anything. However, I am surprised you did not notice the analytical error in the previous post.
"Because of the way the Massachusett's constitution is written and because of certain political realities in the Commonwealth, the general will of the people is unlikely to become law soon if ever."
So, now we are not just worried about judges in Masachusetts, but also the constitution of Massachusetts, as well as "political realities" in Massachusetts (which I take as a reference to the state legislature), thwarting the "general will of the people"? I'd say those are emphatically issues for the people in Massachusetts to deal with, and not the business of the other 49 states.
Indeed, it almost seems like this is now becoming an argument that the federal constitution should require that this issue be decided by state referendums. And again, I ask why just this issue? Why not mandate that every public policy issue be decided by direct democracy?
LN,
You say: "And if it is state sanctioned, it has assummed 'popular approval.'"
Of course not. The state "sanctions" all sorts of individual behavior which may not enjoy popular approval.
You also say: "The people do not have the society they want even if an occurence happens 1% of the time. Should we not outlaw polygamy because it only affects 1% of the population? Robbery? Murder?"
Robbery and murder, of course, directly harm the person who was robbed or murdered. We have such laws to protect all of us from being such unwilling victims. Who does gay marriage similarly harm?
Polygamy, of course, is a more interesting issue--and indeed, for the most part it is not "outlawed" like robbery or murder. For example, for the most part we do not outlaw group cohabitation, childraising, and so on. Indeed, we recognize and legally enforce a form of group childraising as a result of our joint custody laws.
Anyway, I would agree that we should not fail to recognize group marriages because of some "yuck factor". But I also think that unique structural problems arise once marriage is expanded beyond two people, and those may be a sufficient reason to limit the legal institution of marriage to couples (although I would support enforcing some private contracts that amount to group marriages).
Ship Erect - Brown v BOE was in 1954, yet the South didn't really desegregate until 1964, after passage of the Civil Rights act. Funny...that was the act of a LEGISLATURE, as it should have been.
I predict with a great deal of confidence that if a federal circuit court adopts either view (that the Constitution directly requires states to recognize gay marriages, or that the Constitution requires states to recognize gay marriages recognized in other states), the Supreme Court will in fact grant cert.
Alternatively, those facts may support a good argument against the holding in Brown II.
I was alive during that time, and active in the anti-segregation movement, and progress was being made. It would have been another 10-15 years before the legislatures finally started throwing out their discriminatory policies, but it would have happened.
The Supreme Court ripped the issue out of the hands of the legislature and managed public schoools for decades. I think everyone can agree the founding fathers never envisioned federal judges managing public schools.
Furthermore, the decrees from the bench cut out Joe Citizen from the debate and kept the public at large from actually debating and deciding how schools should be desegregated.
It was certainly not a fun time to be young, politically active, and alive.
I expect so. But Mr. Carpenter's mistake is in assuming "those" people are gay people per se, rather than people (gay or not) whose myopic misprioritizations have forced the nation out of its quiet live and let live accomodation between folks of very different persuasions, so that we can have a great big godawful destructive public melodrama over a tiny issue of no serious importance to the Republic at all.
I'm reminded of the overly-intellectual husband who ruins his marriage by insisting that every time his wife makes some minor error or other, or is momentarily rude or thoughtless, they sit down discuss it at length, in sado-masochistic detail, and that she apologize in exactly the right way for each and every unfortunate statement or implication she made.
Such persons made good monks in previous centuries, and wrote many meticulously-argued books that centuries later still anchor the shelves of philosophy department libraries.
Even just 10-15 years adds up to a lot of kids being denied justice.
I would say the decision, before its time, caused more injustice. It brought around the rebirth of the Klan, race riots, lynchings, church burnings, armed conflicts, black reactionary groups, racially motivated murders, and pulled the very fabric of our country to the breaking point. At the time, I was actually surprised it didn't rip.
Courts are best at interpreting policy not making policy. Leave that up to the branch designed to make policy.
Of course you do. You de facto assume that any case in which a court rules something that is unpopular its usurping the rightful power of the people and misinterpreting the law. It's just not that simple.
But you are actually suggesting that the Court should have made a policy decision, not a legal decision. In particular, you are arguing that it would have been a better policy for the Court to tell those individual children whose rights under the 14th Amendment were being violated that they should sacrifice their rights in the name of social harmony.
As we discussed in another thread, there is a deep inconsistency here: if the Court should not be making policy decisions, then that principle should cut both ways, including with respect to whether a legally-correct decision might have disruptive effects on society.
Depends on the state. Oregon, which I mention because I'm familiar with the process, has a state constitution that is extremely malleable via ballot initiative. An amendment outlawing SSM in Oregon passed by a slim majority a few years ago. But, on the whole, most ballot measures amend either the state constitution, the ORS, or both. So in some cases it's fairly easy to change a state constitution.
I'd say in all cases it's easier than changing the Federal constitution, which is appropriate.
Slavery was not ended by the legislature and the states. Slavery was ended by the terrible swift sword of the Union army. The legislature, sans Southern states, merely ratified the result of the battlefield.
I was alive then also, and lived in the South, and totally disagree with this statement. The history of southern resistance to integration simply does not support it.
Segregation was widely popular among whites, who were the overwhelming majority of voters prior to the Voting Rights Act. The South in 1954 was very much more than a decade away from electing anti-segregation legislatures.
While this may be a popular slogan, it reflects a dubious understanding about what courts really do. In reality, courts make "mini-laws" all of the time, when they decide how a law applies to a new situation. They have been doing this for hundreds of years. Most of the time, no one, apart from the litigants, or a few affected segments of society, cares about the judge's "new" law because no great social policy issues are involved in the decision. Occasionally, somone's religious or moral values are implicated, and the judge's decision because much more controversial.
Archon: you blame Brown v. Board of Education for the Klan's rise? First, the Klan's campaign of terror really began in earnest during the 1920s, three decades before Brown, so I would quibble with you a little on that point. Second, aren't you really saying that Brown was premature because many Americans were too racist at the time to accept it, and therefore reacted violently to the federal government's efforts to carry out its terms? I don't find such racism to be a persuasive constitutional reason at all. And, I don't see how Americans would have become less racist without the demise of the Jim Crow laws, and I don't see how those laws would have disappeared unless a court struck them down. The Jim Crow segregation laws were enacted by a majority of Americans in the South, to deprive a minority of their rights. And, these laws were self-perpetuating: their enforcement fed the perception among whites and blacks that blacks were inferior to whites, and taught this lesson to each new generation. So, there would not have been any political correction to these laws that was likely to occur through the legislative process. That is why the Supreme Court struck them down when it did (also, the Army's then recent and successful experience with an integrated armed forces showed that integration would not be as bad as some had feared).
Yet, somehow, our Republic survived. And not just survived, but you will hardly find anyone in American who wants those laws banning interracial marriage back.
I would argue that one of the reasons so few people oppose interracial marriage is precisely BECAUSE the court forced it upon America. We got used to it, and it no longer seems so yucky. The same thing I believe is what is happening in MA. Thee court ruled that gays can marry, and a majority if state residents opposed that. Now, a few years later, the situation is reversed -- a majority are in favor of gay marriage there. That's the 'political reality' that one poster has bemoaned. When people realize that really nothing has changed in their society, then they see that the hysteria is unfounded.
As you will too, I am sure...
I wish Dale would admit who is to blame for this. The judiciary and its elitism, along with pandering and myopic pols like Mayor Newsom.
Also, I think a lot of Dale's rhetoric is empty. Would he honestly oppose a constitutional amendment granting marriage equality to gays on federalist grounds? And where is his respect for federalism and constitutional order when it comes to Lawrence?
Except that there was a reasonable constitutional rationale for Loving. There is no such case for Goodridge or any of the other cases that judicially mandate gay marriage equality.
(2) Goodridge makes strong analogies to Loving. I'd like to hear the non-circular argument for why the analogies fail. (And consequences don't count, except when they'd contradict some other constitutional requirement -- consequences are the domain of policy, of lawmaking, not of law-analyzing.)
duneclimb wrote: Huh? In what way does it threaten the ability of a man and women to wed
Indeed. The marriage consisting of me and my spouse is special because of [gooey romantic stuff goes here]. We happen to be a SRM (Same-Race Marriage.) The legal existence of DRMs (Different-Race Marriages) has no impact on our marriage, and neither does the existence of marriages with different gender mixes.
Reasonable people can disagree, of course. But your arguments reflect a fundamental misunderstanding of the debate.
duneblimb: "The proponents of a ban on gay marriage are essentially incoherent. If, as most people agree, marriage is a positive influence on society that fosters stable family relationships, then why exclude certain Americans from participating in it? One might as well say that left-handed people shouldn't be allowed to marry."
Do you agree that men and woman are different? Much more different than left-handed people are from right-handed? The gay marriage debate isn't just about sexual preference, it's about what family structure is best for raising children. It is entirely reasonable to conclude that children are best raised by both a father and a mother. Further, it is reasonable to promote this perceived advantage by favoring different-sex marriage over same-sex marriage.
"And the argument such proponents make ad nauseum is that gay marriage threatens the "fundamental institution" of marriage between a man and a woman. Huh? In what way does it threaten the ability of a man and women to wed, or to be recognized legally for certain key purposes, to say that two men or two women can also wed and be equally recognized?"
You're confused. The "fundamental institution" of marriage is distinct from the ability of any two heterosexuals to enter that instititution. The growth and recognition of gay marriage, polygamy, and polyamory all threaten the "fundamental institution" of marriage as a societal norm.
"The parallels between opponents of gay marriage and those who once defended laws against miscegenation are indeed striking."
The bigot card wears thin pretty fast. I suggest you stick to improving your case for gay marriage rather than relying on association with righteous causes of the past.
Here's the deal -- for a constitutional amendment proposed by initiative petition to be placed on the ballot, the following has to happen:
1) It has to get the requisite number of signatures.
2) The state House and Senate, sitting jointly, has to have at least 25% of the legislators vote for it.
3) In the next legislative session, the state House and Senate, sitting jointly, has to have at least 25% of the legislators vote for it.
4) Then it goes on the ballot.
However, what has actually happened is that since the Senate president (who presides over the joint session) knows that the proposed amendment would get over 25% of the vote, he simply does not ever bring it up for a vote. This is in violation of the MA constitution, which says that the joint session "shall" vote on it. And that's not merely my interpretation -- it's the interpretation of the MA SJC.
Back in the early 1990s, the then-president of the Senate, Billy Bulger, pulled the same stunt on some proposed amendment. The proponents sued, and it went all the way up the SJC which ruled that (a) the (lack of) action did indeed violate the state constitution, but (b) there was no remedy the court was willing to order, saying that if people didn't like it their remedy was to vote the offending legislators out.
Why and how will same-sex marriage weaken the institution of marriage? Why isn't same-sex marriage a complimentary add-on to marriage as we now know it?
Hans, the problem with this argument is that it is a tad intellectually dishonest: most people who oppose same sex marriages, and want to make sure they never happen, feel threatened by gays and homosexuality being openly displayed in our society, because they are fearful of the effect that this will have on society. I would bet that they would oppose gay marriages, even if gays were not allowed to adopt or raise children, because they oppose having a state "sanction" such a relationship as a marriage. I think this is all about the symbolism of gay marriage and what it says about a society that allows it. For opponents, it says the society is sexually permissive, sinful, and one which has strayed from traditional judeo-christian values. For supporters of SSM, it says that such a society is tolerant of minorities and differing lifestyles.
If the concern were truly about "the children," banning divorce, or forbidding alcoholic people from raising children would be far more effective ways of ensuring that children were raised in a psychologically healthful environment.
That's a meaningless measure, unless you're holding all else equal. It's good for children to have both a male role model SO and a female role model SO. But it is also good for children to grow up in a family (as opposed to in foster care or an orphanage); it's good for children to grow up in comfort (as opposed to poverty) and so forth.
The ideal structure for raising children (by some measure of goodness) might be two rich parents of different sex who are deeply in love, healthy, educated, etc., etc. Now what about folks who wish to be married (for any of a number of reasons, only some of which involve children) who are not going to form an ideal structure for raising children?
The growth and recognition of gay marriage, polygamy, and polyamory all threaten the "fundamental institution" of marriage as a societal norm.
How so? More or less than other influences like easy divorces, greater equality for women, birth control and the associated increase in pre-marital sex?
Two heterosexuals aren't likely to enter into SSMs (with other partners) even if SSM is a legal and acceptable alternative. And the other genie is out of the bottle: there is a lot less pressure for homosexuals to find different-sex partners in order to enter into a weak marriage (oh so good for the children that result from that union, right?) in order to fit into that norm, whether or not SSM is recognized.
The Court had many options when Brown reached its door, and I think it picked the worst one. It could have overruled Plessy, but left it to Congress to enforce its decision through the powers granted in the Fourteenth Amendment.
However, what has actually happened is that since the Senate president (who presides over the joint session) knows that the proposed amendment would get over 25% of the vote, he simply does not ever bring it up for a vote. This is in violation of the MA constitution, which says that the joint session "shall" vote on it. And that's not merely my interpretation -- it's the interpretation of the MA SJC.
Well I would have suggested turning to the courts to deal with the legislature's intransigence, but I know you'd never turn to those darn activist judges to overturn the will of the elected legislature.
As the MA courts have said, if you don't like what the legislature is doing, elect different legislators.
In other words, gay people should not be able to get married regardless of their ability to raise children, whereas straight people should be able to get married, again regardless of their ability to raise children, or desire for children, or ability to produce children. Why the double standard?
Where are all these straight people who say they'll get divorced (or be more likely to get divorced) if gay people can marry? I've never met such a person. I don't get this notion of threatening marriage in the abstract in the absence of any effect on any actual married couple.
I don't think it's dishonest at all. The endlessly repeated phrase "every child deserves a mother and a father" underscores the point. The debate is largely about what kind of environment children are raised in.
You are correct that animus against homosexuality plays a large role in the debate as well. I'm not sure this is entirely irrational, either, given the perspective. Tolerance is one thing, subsidizing gays raising children is a different league altogether; absence of criminalization/persecution versus government subsidiziation. That's a big leap. A lot of people don't hate gays, even if they refuse to believe in the equality of the lifestyle. Is that really bigoted? I don't think obesity should be outlawed, but it's not something the government should be actively encouraging either.
Again, I'm not passing on the propriety of what has happened in Massachusetts. I'm saying that is a matter for the people of Massachusetts to deal with.
And again, if the principle is that the federal constitution should prevent state legislators from using parliamentary devices to thwart the requirements of state law, then why not a general constitutional amendment to that effect? Why only with respect to this one issue?
Hans,
To paraphrase what is often said about dog breeds, I think there is a lot more variation within each gender than there is between the genders. And as Cornellian points out, a preference for gender diversity is only one of many preferences we might have (and indeed do have, in many other contexts) for the "ideal" parents. And yet, once again, "coincidentally" the only one of these many parenting ideals that we are willing to strictly enforce by a total ban on marriage happens to be the one that keeps gay people from marrying.
Hmm. It is funny indeed how all these seemingly broad principles just happen to keep extending to, but only to, keeping gay people from marrying.
An addendum in light of your most recent post:
So I assume, for the sake of the children, you would support a ban on fat people marrying too, right?
I predicted that response. Being fat may be unhealthy (and therefore somethign the government should seek to avoid encouraging), but the impact the rearing of children is the issue. Fat people can raise children just fine.
I think this puts the cart before the horse. Gay people already are raising children and will continue to do so regardless of whether marriage is available. Marriage would almost certainly make things better for those families that already exist.
I'm not sure if I get your "subsidizing" claim either. Welfare payments to unwed mothers clearly subsidize out of wedlock single parent births. Is the government paying gay people to have children? Because if they are, that something that I'm entirely against.
This sort of reasoning is essentially nihilism--no distinction can be drawn between two groups where the variance is greater within one of the groups than between the two groups. A rule like this would eliminate 90% of the distinctions made by government policy. It's a formula for governing by the exception rather than the rule.
"And as Cornellian points out, a preference for gender diversity is only one of many preferences we might have (and indeed do have, in many other contexts) for the "ideal" parents. And yet, once again, "coincidentally" the only one of these many parenting ideals that we are willing to strictly enforce by a total ban on marriage happens to be the one that keeps gay people from marrying."
Not just gay marriage. Polygamy and polamory as well, for different reasons. The pickiness of the state is necessarily limited by political realities and the need for generational stability.
A lot of my opposition to SSM is a matter of prudence. I want to see the effects of SSM before the state begins to subsidize it. I think prudence is warranted given the importance of marriage. Others disagree.
The 25% threshold only applies to initiative amendments, which cannot be used to overturn judicial rulings.
For instance, heterosexuals don't need to do anything but "the act" to conceive. And clearly the pathologies that we see with single parent households are compounded by the fact that such mothers are often poor, uneducated, young and clearly "not yet ready," to have children.
But a lesbian couple going to a sperm bank or two gay men adopting have to jump through endless hoops of responsibility, and are likely only to have children when they are financially ready and responsible for it.
It may well be that everything else being even, a child is better off with opposite sex parents than same sex parents. But we don't live in a world where "everything else" is equal. Everything else being equal, it's clearly better for children to have parents who tend to be more affluent than who tend toward the poorer or even working class side. But we wouldn't dream of forbidding poorer or more blue collar folks from marrying in order to discourage them from having kids.
Life is about trade-offs. And I see no evidence whatsover that an intact financially secure same-sex couple can't do a good job raising children, even if that is not a first best world result.
To be fair - studies on child rearing and same sex couples have all had divergent and completely opposite results. It is impossible to say with any certainty that a same sex couple can raise a child as successful as a traditional couple. This might some day change - but for the time being findings are at best inconclusive.
A legislature is completely within its rights to set policy which it believes will promote the most condusive child rearing environment. For the tiem being - it appears to be one man and one woman.
Okay. Then let me ask then how the legislature in exercising its rights to promote the one man one woman policy as the most best for child rearing is tackling single parenthood, especially single parenthood by poor, uneducated, unwed mothers?
As I've said, you've put the cart before the horse. Gay people are and will continue to have children unless we impose draconian measures to attempt to prevent them from so doing. I'd imagine the answer as to why government is having a hard time tackling single parenthood problem that I mentioned is...what are they supposed to do? Mandate norplant until everyone is a married adult and financially secure? Take away children from unwed mothers and put them up for adoption or in an orphanage?
Gays are already having children and will continue to do so. Clearly, it would be better for the children if the gay couple could marry.
Good points. I have viewed the current crop of child-rearing gays to be something of an elite group (by motivation and affluence, at least), though many of these children are the result of heterosexual unions, so it's difficult to tell how much the screening effect would impact parent quality. We probably won't know for some time how effective gay households are in rearing children, but something like what you describe could work to negate any intrinsic detriment gay marriages possess.
How does same-sex marriage hurt what you claim is the most condusive child rearing environment? You make it sound like same-sex marriage will result in kids who would otherwise be raised by their fathers and mothers, being raised instead by same-sex couples. These marriages would only result in kids being raised by same-sex couples who otherwise wouldn't have been born at all - or maybe would have been raised by two unmarried same-sex partners. Are you arguing society is better of with kids being raised by unmarried same-sex partners than married same-sex partners?
The single parent issue is a red herring.
Gay people will have children and can have children. No draconian regulations which prevent them to have children should ever be enacted in a free society. But, just because gay people CAN have children, does not mean that a legislature has to ENCOURAGE the practice by confering the benefit of marriage upon them.
Conversely, it is turns out that after careful studying gay people were better at raising children then a traditional family, the legislature might very well be justified in bestowing the benefit of marriage solely on gay couples.
This was the same argument presented for welfare. It would be better for children now raised by single mothers for the government to subsidize them, too. But that's not wise because it leads to more single mothers, which isn't healthy for society. Determining if there is any negative effect from being reared by a gay household is important. If this effect is small to negligible, it may make sense to still provide gay marriage equality, as the benefit to the children would outweigh the social cost of slightly reduced parent quality induced by government subsidization and attendant social approval.
If children raised by heterosexual parents are superior citizens, preventing the birth of children by withholding subsidization makes perfect sense. If gays don't do a good job of raising children, why should the state encourage them to do so? Again, we don't know if this is true, and maybe the opposite is true. But prudence dictates we move slowly.
Has he? What, exactly, will be the argument for pressuring the single mother to marry the father of her child, a guy she's obviously not crazy about (or else she'd need no pressure), after we have duly enshrined as Constitutiona law the principle that the public has no right or interest in saying who should marry whom?
Seems to me once we agree marriage is primarily about the desires of the adults concerned, we've given up all moral standing to lecture people on preserving or contracting marriage for the sake of children. What we'll have done, in essence, is sever the issue of whether or not to marry, and whom to marry, from the issue of how best to parent a child. We can't pressure Sally to marry Phil, the father of her child, rather than Randy, whom she likes much better, if we've already said the state has no business telling Sally she should at least marry a man instead of a woman for the sake of her child.
You are incorrect. The data, at best, is inconclusive. There are not reams of studies that show there is absolutely no difference.
Until, there is conclusive evidence that there is no difference, I would err on the side of caution.
Who knows, maybe the data will show that same sex parents ARE better parents and we should only confer the benefits of marriage on them.
However, your caution is unwarranted. Given the reams of studies that have failed to find differences, it's very likely that any differences are small - much smaller than the effects of other differences that don't exclude people from marrying, like race, wealth, and disability. On the other hand, we do know that kids raised by two gay parents do much better than e.g. kids raised by single parents, kids in foster care, etc. The benefits are known to be large, but the harms are speculative and small if they even exist.
It's also not clear what the potential harms of gay parenting would be, or why we'd even expect them to exist.
So preventing gay marriage is about making it more difficult for them to have children?
If children raised by heterosexual parents are superior citizens, preventing the birth of children by withholding subsidization makes perfect sense. If gays don't do a good job of raising children, why should the state encourage them to do so?
Perhaps because ability to do a good job raising children is not a requirement imposed on opposite sex couples?
Er...forgotten (or never studied much) biology, have we? This particular requirement is imposed on people by their DNA, not by the johnny-come-lately law. Or are we to imagine a woman generally needs a lecture from a learned judge or wise philosopher to learn how to nurse her child, hold it gently, or distinguish its cry from all others, and a father generally needs to read a good textbook to learn to care passionately whether his son is happy or sad? Jeez.
Also, why does DNA that predisposes you to homosexuality makes you love your kids less?
In the next 18 months, a dozen more states will ratify into their constitutions bans on SSM. That will bring the total # of states up to about 35 with constitutional amendments, 10 with DOMA statutes and 5 with either nothing or court-mandated SSM (WA, MA, NY, NJ, one other).
About 18 months after that, in a 5-4 decision, Justices Stevens, Ginsburg, Souter, Breyer and Kennedy, despite every protest in Lawrence that they wouldn't, will invent the right to SSM, the 45 states that passed constitutional amendments or state DOMA statutes be darned.
Dale calls a Supreme Court victory for SSM "unlikely". Dale, respectfully, can you count to 5? I can.
It is all over but the screaming folks. The real questions are 1) how will SCOTUS get the case and 2) WHEN (not if) SCOTUS creates this right out of whole cloth, will the polygamists be next?
You say: "Fat people can raise children just fine."
That is lowering the bar for fat people. Gay people can raise children "just fine" as well, but your argument is that they would not be IDEAL parents. In other words, you are requiring gay pe