I've long (and publicly) opposed the Federal Marriage Amendment, because it unnecessarily interferes with states' decisions about same-sex marriage.
Moreover, though I don't think that the U.S. Supreme Court ought to interpret the U.S. Constitution as mandating recognition of same-sex marriages, I don't see a need even for a narrow constitutional amendment that would preclude such an outcome -- it just seems to me highly unlikely that the U.S. Supreme Court will reach such a decision, at least any time in the next few decades. (I support recognition of same-sex marriages for policy reasons, but I think it should be done through the political process, for many of the reasons that others have discussed at great length elsewhere.)
Likewise, unless I'm mistaken, this was a common argument of many defenders of Lawrence v. Texas and critics of the FMA: (1) There's no real likelihood that the U.S. Supreme Court would mandate recognition of same-sex marriage any time soon. (2) People who are skeptical about the recognition of same-sex marriage thus need not be worried about the implications of Lawrence or eager to enact the FMA. (3) The same-sex marriage debate ought to just percolate at the state level, with no need for federal intervention through the amendment process and no real risk of federal intervention through a U.S. Supreme Court Goodridge-like decision.
Yet now Democratic National Committee chairman Howard Dean says this:
Statement by Howard Dean on the New York Court of Appeals Ruling on Same-Sex Marriage ...
WASHINGTON, July 6 /U.S. Newswire/ -- Democratic National Committee Chairman Howard Dean today issued the following statement in response to the decision by the New York Court of Appeals that the state constitution does not guarantee the right to marriage for same-sex couples, but that the state legislature could provide this:
"As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity. And we must respect the right of every family to live in dignity with equal rights, responsibilities and protections under the law. Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.
"As that essential process moves forward, it is up to the State legislature to act to protect the equal rights of every New Yorker and for the debate on how to ensure those rights to proceed without the rancor and divisiveness that too often surrounds this issue."
Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"? Does it mean that the sitting Justices would be acting in an "outdated and bigoted" way by not interpreting the U.S. Constitution as mandating the recognition of same-sex marriage? Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result? Or does Dean believe that the New York court's interpretation of the New York Constitution was wrong, but the U.S. Supreme Court's similar interpretation of the U.S. Constitution would be proper? (Such a theory is certainly possible, but I just wonder whether this is indeed Dean's view.)
I realize that many people might welcome a Supreme Court decision mandating recognition of same-sex marriage. It justs seems to me contrary to the predictions that I'd heard from many sources about the unlikelihood that the U.S. Supreme Court would take such a view.
Related Posts (on one page):
- I Don't Think That Word Means What You Think It Means:
- Back to Natural Law and One True Inherent Purpose:
- Usage and Marriage:
- Cut Out the Rancor and Divisiveness, You Bigots:
- The U.S. Supreme Court and Same-Sex Marriage:
"The Democratic Party platform from 2004 says marriage is between a man and a woman,"
He seems to have a hard time deciding what he wants.
Well, reading what you've quoted Dean as saying, it "means" that he's upset by the decision's alleged "reliance on outdated and bigoted notions about families." As is arguably exemplified in the excerpts at Orin Kerr's blog.
If Dean actually thinks the NY Constitution "should have been interpreted" to guarantee gay marriage, then maybe you should, say, quote that language in your post? Or did he, perhaps, not say any such thing? (No link provided, so I dunno--do you?)
Saying that your state constitution doesn't guarantee gay marriage is one thing. Finding it rational to say that gay parents, *as such*, are more "unstable" than straight parents, *as such*, is another thing.
"Intuition and experience" can be, and have been, used to prove lots of things ... like the undesirability of "too many" Jews at Ivy-League schools ... or the perncious effects on children of mixed-race parents. To say nothing of certain racial theories prevalent in Europe back in the early 1940s.
Turning alleged "intuition and experience" into a "general rule" is just pitiful. And it's just astonishing how the admittedly limited social-science research contrary to the supposed "general rule" is somehow trumped by the utter lack of research support on the side of the "rule"; see pages 7-8 of the opinion, it has to be read to be believed.
God knows, Dean is enough of a kook at times that he might turn around and say tomorrow exactly what EV has attributed to him today. But unless and until he does, could we stick to what the man actually said?
Anyway, I don't see one word in this statement indicating that Dean believes there should be action on a federal level. It's certainly possible to decry an action taken by a particular state without believing that the federal government ought to overrule that action somehow, and I don't see anywhere that Dean is advocating to the contrary. And, as other commentors have noted, Dean specifically condemned the "outdated and bigoted" notions upon which this particular court rested its decision - he didn't say that opposition to gay marriage is necessarily outdated and bigoted.
Not that I expect a substantive debate to occur in the volokh.com comments section where Howard Dean is involved, mind you.
Saying that your state constitution doesn't guarantee gay marriage is one thing. Finding it rational to say that gay parents, *as such*, are more "unstable" than straight parents, *as such*, is another thing.
Actually, the opinion says exactly the opposite of what you imply:
The Legislature could also find that [heterosexual] relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.
The point seems to be that gay relationships involving children necessarily involve a lot of thought, because you don't adopt a child or get yourself artificially inseminated on the spur of the moment after a romantic dinner. It's heterosexual relationships that can produce children more or less accidentally, which is why they might need "stabilizing." And again, the Court isn't saying this is so, merely saying that the Legislature might plausibly have thought along such lines.
Sorry — I meant to quote the following graf as well:
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
[my emphasis]
To me that doesn't mean that gay couples are more unstable than straight ones, but perhaps I read old books of logic.
Which actually casts light on just how vague the court's reasoning was: a child "benefits" from having parents of different sexes and thus "living models of what both a man and a woman are like." This is very thin gruel indeed. "Stability" is hard science by comparison.
I suppose that DNC Chairman Dean could probably just say that he’s not actually responsible or accountable to his party’s platform and what the delegates approved at their national convention and what the people responsible for raising money and coordinating elections believe about this issue are two separate things.
Actually, while I think that Professor Volokh is wrong about this issue, he seems to have pretty much read Dean’s press release correctly. If Dean doesn’t think that the decision is wrong, then he wouldn’t have condemned it as “deeply disappointing.” By characterizing it as being about the “right to equal protection under the law” and “equal rights, responsibilities and protections under the law,” it’s pretty clear that Dean thinks that the court’s decision conflicts with those beliefs and that they should have come to a different decision.
But feel free to keep trying to spin it otherwise.
I did point to the contrary possibility, by asking "Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result?" I just don't think that's the most plausible interpretation of Dean's statement.
Many thanks also to Mr. Winston for the link to the press release; I got the press release as a reliable-seeming e-mail, and tried to find the link, but couldn't -- very glad that Mr. Winston came to the rescue on this.
Agreed, federal courts have now discovered that sodomy laws and “under God” in the Pledge of Allegiance are suddenly “unconstitutional” while discriminating against applicants to a State college on the basis of skin color is constitutional. I see no reason to expect that a district or appellate court won’t suddenly discover that the Fourteenth or Ninth Amendment requires that States redefine civil marriage based on someone’s fetish nor trust the SCOTUS not to affirm their decision or punt as it did on the pledge case.
I guess because some people interpret official press releases from the chairman of a major political party who was elected by members of that political party as somehow representing the views of the party. And since that party will be running a candidate for President in 2008 who will (if elected) likely appoint at least one Supreme Court justice, it’s fair to ask whether those candidates agree with the stated position of their party’s chairman.
As far as what the 2008 candidates think (I don’t believe we have any declared candidates yet), I’d be willing to bet that at least one presidential candidate (my guess is Russ Feingold) calls for recognizing SSM. And I’m sure that President Mitt Romney will have a good chuckle about it while he makes his first two SCOTUS appointments. ;)
The Constitution has been amended 26 times in almost two and a half centuries. Republicans tried to amend it twice in the last month.
P.S. Max's last comment cracks me up.
But that's just me.
Twenty-seven times actually. As far as proposed constitutional amendments, the specter of the ERA continues to haunt Congress as late as 2005.
Personally if I were a democrat (perish the thought) I would be ashamed to admit that Dean was the party chairman. There are a lot of good democrats out there who would be good chairman and also would not be so likely to insert foot in mouth. Although I am not a democrat I would rather see them with a good, logical, clear thinking chairman than the buffoon they have in that position now. I think we need two parties with differing views that can be reasonably argued than what we have now which is one party with ideas and one party which is not able to state what their ideas are and that has leaders who spend more time with foot in mouth than out.
There's the possibility that SCOTUS would conclude the arguments in favor of restricting marriage to opposite sex couples were outdated and bigoted, but that such restriction was nevertheless not unconstitutional. After all, the federal constitution doesn't per se prohibit things that are outdated, or bigoted or both.
see no reason to expect that a district or appellate court won’t suddenly discover that the ... Ninth Amendment requires....
That would require first discovering that the Ninth Amendment exists, so you needn't fret. (Though you've a point about the Fourteenth, which apparently contains vastnesses beyond mortal (non-judicial) comprehension.)
Dick Thompson: Alas, I fear your description of "what we have now" is NOT meant as a joke. But that won't stop us non-true-believers from laughing.
Well, Anderson, I don't know about intuition, but I know that turning experience into a general rule, when done as an academic pursuit is called "History" and when done as political philosophy is called "conservatism." Hence neo-liberalism and traditional modern neo-liberal ahistoricism are the diametric opposite of conservatism and the study of history.
Now, did you arrive at your position - that it's "just pitiful" based on experience, or intuition?
If this was done, it would become quite hard for the court to avoid the parallel of Loving v. Virginia.
But don't hold your breath -- I absolutely agree with Prof. Volokh that such a change is unlikley in the extreme.
But then he says:
Am I alone in thinking that Eugene's position is untenable and unprincipled?
Once one separates the policy question from the constitutional question, there are four possible positions in the debate over same-sex marriage:
Position 1: Support same-sex marriage on policy grounds and believe it is a constitutional right.
Position 2: Support same-sex marriage on policy grounds but believe it is not a constitutional right. (Persons holding this position may believe that same-sex marriage should be a constitutional right, but they reject the idea that it presently is a constitutional right.)
Position 3: Oppose same-sex marriage on policy grounds but believes that it is a constitutional right. (Persons holding this position would support an amendment removing same-sex marriage from constitutional protection.)
Position 4: Oppose same-sex marriage on policy grounds and believe that it is not a constitutional right.
Eugene says he holds position 2, but then he says that he does not support a constitutional amendment to prevent the US Supreme Court from saying that there is a constitutional right to same-sex marriage. Eugene would presumably oppose an amendment that said: Nothing in this constitution creates a right for a person to marry another person of his or her own sex.
Look, either same-sex marriage is a constitutional right, or it's not. If it's not a constitutional right, you should oppose its judicial imposition, even if you support it as a policy matter. The question is more about what it means to live in a constitutional democracy than it is about whether to recognize same-sex marriage, and so far I find Eugene's views rather disconcerting.
(a) a ban on ssm is unconstitutional sex discrimination;
(b) sexual orientation should be recognized as a suspect classification, which the ssm ban runs up against.
Professor: is there any chance we can get you to articulate the theory of equal protection that leads you to reject both of these claims?
Why Steve, you little tease you. Of course we are not saying that. For example, the Democrats have a pro-war faction (of Lieberman) and an anti-war faction of everyone else. They have an anti abortion faction of …(oh, bob Casey is dead) and an pro-abortion faction of everyone else. They have an tax reduction faction of ….uh… and a tax increase faction of everyone else. I could go on, but I’m sure I have proven your point.
It is only a matter of time before the 5 liberal U.S. Supreme Court Justices, no doubt citing to foreign law and cases, "invents" the right of homosexuals to marry. Or, as I like to put it, it is all over but the screaming.
Until that time, the Dems will pretend to be in favor of Federalism and suggest that maybe the legislatures are the way to go, until the minute they get the liberal court decision they want.
Those claiming that there is no way the U.S. Supreme Court will not force gay marriage on the nation are either pro-gay marriage people who are being disengenuous or conservatives who are naive.
Speaking of the politics of this and the courts, look to Washington State's Supreme Court. July 7 (this Friday) is the last day to file signatures for constitutional amendment initiatives for the November 2006 ballot.
The Washington State Supreme Court has sat on its gay marriage decision for over 18 months.
Wonder why? Because they are going to go in favor of gay marriage and this way, there is no way the people can do anything about it for at least a year if not 2 years.
I can then picture any candidate who doesn't explicitly support same-sex marriage as having to make an uncomfortable response that will not offend supporters in favor of permitting same-sex marriage while not actually supporting same-sex marriage. You can quibble with whether the proposed question above is a fair characterization of Dean's comment, but that's how the question would go.
My point about clowning? Yes indeed.
Moreover, he talks about taking the battle to the legislature in the wake of the NY decision, not trying to change the composition of the courts. Certainly this is a course of action Prof. Volokh would agree with. While I understand Dean is everyone's favorite whipping boy, Prof. Volokh's attack is unfair.
Congress considers many, many more Constitutional amendments than the FMA and flag burnign amendment. According to a C-SPAN study more than 100 amendments were proposed during each Congress in the '90s and I suspect we'd have similar numbers in the last six years. The proposed amendments come from both sides of the aisle. Granted, most of these never reach the floor for a debate or a vote. The fact that two have recently simply reflects significant political support. Isn't this how the democratic process is supposed to work?
As the dissent notes, apparently it is fully rational to unnecessarily, nay irrationally, burden homosexuals (and their children) to further the needs of hetereosexual couples and their children.
I also like the sentiment that heterosexuals have accidental pregnancies and such. How about bisexuals? Do the judges not realize that many individuals are not either/or, and might still get pregnant or become parents the "natural way?" Or, that many same sex couples have families in part a result of past actions of this sort?
The opinion was inane. I understand the tradition argument, but it only goes so far. Anyway, I can't tell the future. Liberal justices in the 1960s supported discrimination in "private clubs" that were later deemed illegitimate. Just one sacred cow altered over time.
I'm a bit younger than Eugene. I reckon that the federal courts might in my lifetime decide the Loving for homosexuals.
I think simple consistancy and legal principle demand that the supreme court either demand any restriction of gay marriage pass at least a rational basis test if not compelling interest OR overturn Turner v. Safley, Redhail and the handfull of other rulings holding marriage to be a fundamental right.
In particular Turner v. Safley really needs to go if they don't want to uphold gay marriage as O'Connor's holding here seemed to say that the features which gay marriage has (community regocnition, religious/spiritual significance etc..) were enough to warrant status as a fundamental right even if vaginal sex, procreative possibility, shared childrearing or anything special about male/female cohabitation are unavailible because of imprisonment.
I'd be perfectly happy with such a ruling. I've always thought it was absurd that there was a fundamental right to a state sanctioned marriage. I mean if it would be okay for the states to dissolve the legal notion and leave it to the religions/families/society to work out themselves how can it be a fundamental right? Moreover, since every collection of benefits provided by the legal recognition is not constitutionally demanded (tax breaks, testimony exception, etc.. can all be taken away) how can the thing as a whole be a right?
I think that the state should just totally get out of the buisness of marriage and I don't think you can call yourself a libertarian if you don't favor pure private contracts over state involvement in marriage. However, whatever it decides to do it should do consistantly and that either means overturning Turner v. Safley or giving gay folks the same marriage rights that even prisoners get.
Can you ban gay adoption if you allow them to marry? You assume gay families are something the legislature supports, as opposed to an unfortunate occurrence that can be discouraged in the future.
I would expect that gay couples are substantially less likely to be given a child; even if one accepts that they are just as good (there may not be evidence disproving this, but intuitively it seems that children need both a mother and father - and so the burden should be on gay rights activists to offer evidence) there is still the fact that in any place in this country a kid with two fathers is going to be ostracized and made fun of. That's not going to change if you call it marriage, or domestic partnerships, or anything else.