Congratulations to California Same-Sex Married Couples:
In all this talk of constitutional law, it's easy to miss a human dimension: There are lots of same-sex couples in California who are already married under foreign law, who are already married in their own consciences and religious traditions, and who have long wanted to have their marriages recognized in the state in which they live.
Whatever one might think of the social or legal consequences of this sort of decision, it pretty clearly makes them happy, and happy for the right reason -- the common human desire to have them, their families, their love, and their mutual commitment recognized. So congratulations to all these couples, those whom I know well personally and the many more whom I don't.
Related Posts (on one page):
- The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
- The California Legislature's Enactment of Same-Sex Marriage:
- "Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
- Congratulations to California Same-Sex Married Couples:
- The Slippery Slope to Same-Sex Marriage:
- California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
It's not the purpose of the state to gratify human desires.
And here I thought "the pursuit of happiness" was one of those inalienable rights for which we fought to have self-government some 230 years ago.
It should not be the purpose of the state to STAND IN THE WAY OF human desires, either, so long as no one is physically harmed or defrauded.
The Field poll questions have remained the same during the six surveys analyzed here. In 1985, only 30% of those polled supported same sex marriage. This increased to 38% in 1997, and the average for surveys in 2003-2006 showed support by 43%.
While only 25% of those born before 1940 are in support, that number has grown by 5% over these years. Those born in the 1940's are supportive at 40%, also a gain of 5%. Similar 7 and 8% increases are found for those born in the 1950's and 1960's, reaching above the 40% threshold. Those born in the 1970's and 1980's are in support by 51% and 58%.
The same trends are apparent over time in those who identify themselves as "liberals" (increasing from 43% to 76%, a gain of 33 points) and "moderates" (climbing from 31 to 44%, a gain of 15 points). However, amongst self-styled "conservatives" a reverse trend is seen and the numbers have dipped from 20% support to 15%. There is an astonishing 61% spread between liberals and conservatives on this issue.
The same general patterns hold for partisan identification, with Democrats supportive at a level of 59%, independents at 41%, and Republicans at 23%. There has been a marked shift in increased support over time amongst Democrats and independents, while Republicans are slightly less supportive by 3 points.
Support has increased in every religious group identified, but the lowest level of support is amongst Protestants at 28% and represents a gain of only 4%. Catholics jumped 13% to 38% support. Those with "No religion" had the highest level of support at 71% followed by those who are Jewish at 70% (reported as being a small sample, but with this number being higher it must be of statistical significance), and "Other religions" at 55%.
Asians showed the highest support level based on race or ethnicity at 55%. White non-Hispanics at 46% followed this, then Latinos at 35% and Blacks (a small sample) at 23%. There were strong gains in each of these except for blacks, which were down by 1%, probably statistically insignificant, except in indicating no real change as opposed to other categories.
There appears to be a gender gap with female support at 47% and male support at 39%.
There is a strong correlation with level of education with college graduates supportive at 64%, followed by some college at 41%, and high school or less being at 34%.
No, at Snap On Tools.
You're both right: The state should get out of marriage completely, leaving it purely a matter of contract between consenting adults. Women are no longer a man's property and we don't need a marriage to define who the father is today. Religious institutions may impose their own additional requirements for their constituents as they currently do. Determining custodial arrangements for children is the only place I see a need for state intervention.
Wording may be a bit off, typing from memory here.
Still, as marriage has, across time and many cultures, been considered one man and one woman, I'd rather this issue be decided by the body politic: either voter initiative or legislation (Gov. Arnie is wrong here). I'm perfectly willing to vote for it.
It's not the state's purpose to suppress them either
Pay no attention to the man behind the curtain.
You didn't really want the right to vote after all.
The Republican party has been spooked by the last few special elections where they lost big time. They are looking at huge losses this fall. Bashing gays on this issue will be very tempting as it has worked in the past, and they have few other issues to run on. My guess is that it will hit hard on the issue, but that it won't win them the White House or regain congress. the biggest demographic that is against SSM is the religious right and blacks. But blacks won't vote againt Obama on this issue, so it can only be used as a tool to bring out the religious right vote. That might tip the scale in some close elections, but it won't really help much. Every other poll I've seen says that SSM is way at the bottom of voters concerns. It will only make the Repubs look even more out of touch.
There are probably a portion of American folks who practiced Sharia under foreign law, practice it in their own consciences and religious traditions, and who want to have Sharia recognized in the state they now live. Is everybody on board with Sharia law? Or anything and everything else someone feels strongly about?
That's not a knock on gay marriage, but to say that your defense formulation strikes me more emptily glib than serious. Marriage isn't supported by the state because two folks feel all wovey-dovey about each other. Monogamous marriage between a man and a woman has long been supported by various forms throughout Western Civilization because it's been recognized as both a staple for social stability, and a pretty darn tricky thing to get people to successfully stick with.
I'm open to gay marriage, but some random thoughts: Most people aren't comfortable with the current rate of marriage failures, and loss of nuclear families (especially in places like the African American community). A lot of people also increasingly focus on the rippling, unintended consequences of even well-meaning social action, such as earlier advancement of state welfare past a very small group like war-widows and orphans to a much greater segment of society. Nobody really thinks it was wrong to do, but there certainly has been social decline in attitudes/behaviors based around such public programs.
Where's the public debate about the reality of the social desirability/necessity of a monogamous, opposite sex centered family as opposed to marriage as a concept of a lovey-dovey spiritual union? Where's the debate focusing on the possible social impact of the declining rate of traditional marriages, and how introducing same-sex marriage may or may not affect this situation. Where's the same 'slippery-slope' analysis (as was acknowledged in a post right before this one)that a rather non-trivial portion of gay activists often tout same-sex marriage as a useful stepping stone for the drastic redefining of the very concept of marriage?
Oh, that's right, why do any of that when the judiciary will just make giant cultural decisions for us? Can't be any harm in that. And like Eugene Volokh says, who cares what social or legal consequences occur, cause some people he knows are like, totally happy!!! And everybody knows that being totally happy and cool, and not some dour meanie who wants society to make an open debate about civic/moral concepts and impacts, is all that matters!!
Democracy died a little more today.
Gay Marriage ain't Sharia Law. Not really any kind of analogy there.
Also, the increase in divorce rates preceded gay marriage across the western world.
Comment#1, congratulations. I wondered how long it would be before someone would ignore the entire thrust of my post and dishonestly spin it as 'Uh, Sharia law ain't Gay Marriage'. 10 minutes on Vegas odds. My opening statement obviously isn't comparing Sharia law and gay marriage as social realities, it's pointing out the rather empty, glib logical structure of the portion of the post I quoted.
Did it now? So I assume that you would have had no objection if the Governor had signed either of the two legislative actions that would have established gay marriage last year since those were democratically passed?
Resorting to the courts to make these types of controversial changes is a quick and easy way around the problem of truly changing society. And it can be easily undone....all you need to do is change the membership of the state supreme court.
Their meretricious relationships will forever fail to match opposite sex marriage in which the union of opposites produces children that are the genetic product of the union.
No doubt, Mods will continue to try via surgery and genetic manipulation to approach closer and closer to the ideal. But it's all fake and they know it. And we know it too.
Sodomy, lewd cohabitation, lascivious carriage, adultery, fornication, sex change surgery, plural marriage, serial marriage, etc. all differ from and are inferior to monogamous marriage.
Note that there are many more circumstances in which we feel compelled to hide the above practices (even divorce), than there are circumstances in which we hide conventional marriage.
Eugene attests to the superiority of conventional monogamy by the fact that although a libertarian and an atheist, he married prior to reproduction.
There are probably a portion of American folks who practiced Sharia under foreign law, practice it in their own consciences and religious traditions, and who want to have Sharia recognized in the state they now live. Is everybody on board with Sharia law?
You're familiar with the cliche that your freedoms end where my nose begins, and it should be pretty self-evident why that cliche is relevant to mandatory Sharia. (NB: I'm perfectly fine with a community that decides it wishes to practice Sharia amongst itself.)
So tell me, anybody: How does any particular gay marriage harm you personally?
You would be misinformed if you thought that the Founders understood happiness in modern libertarian terms (i.e. "as long as it doesn't physically harm another person").
There's no doubt that those who wrote and ratified the "equal protection" clause of the California Constitution did NOT intend for it to be construed so as to protect gay marriage.
Thus, the 4 justices in the majority legislated from the bench - substituted their personal views for what the constitution actually means.
The ballot proposition passed by CA residents a few years ago merely refused to recognize SSM from other states. It said nothing about whether CA can grant SSM
Talk"Where's the public debate about the reality of the social desirability/necessity of a monogamous, opposite sex centered family as opposed to marriage as a concept of a lovey-dovey spiritual union? Where's the debate focusing on the possible social impact of the declining rate of traditional marriages, and how introducing same-sex marriage may or may not affect this situation. "
where have you been the past few years? The debate has been going on since at least MA granted same sex marriage. No one doubts that monogamous opposite sex families are good. The question is wehther monogamous same sex families are good too, and the answer so far has been yes. As for the social impact on declining rate of traditional marriages, there has been no effect where SSM has been implemented, such as MA or CAnada. In the Scan countries, though, there has been an slight uptick in traditional marriage, so if anything, it has had a neutral or positive impact.
BTW, how is your marriage holding up (assuming you are married). Are you planning a divorce now that gays can get married? IF not married, have you decided marriage is off the books for you forever because of this? IF not, why not?
Matt Bruce, do you bother to read posts or just cherry-pick what strikes your fancy?
1. I just replied to another poster on how dishonest it is to spin that quote as morally equating gay marriage and Sharia.
2. I spent *four paragraphs* detailing my misgivings about the situation.
Comment#1, congratulations. I wondered how long it would be before someone would ignore the entire thrust of my post and dishonestly spin it as 'Uh, Sharia law ain't Gay Marriage'. 10 minutes on Vegas odds. My opening statement obviously isn't comparing Sharia law and gay marriage as social realities, it's pointing out the rather empty, glib logical structure of the portion of the post I quoted.
I understand what you mean. If you expected someone to pounce on that, perhaps you have an idea of how some people might be take it the wrong way. It's an unfortunate comparison, especially in light of the good news today, no?
I also have to point out that you didn't engage with my second point. You seem to worry about the effects of gay marriage on straight marriage, but things were in decline long before people thought it possible for gays to marry.
I'm going to repeat the question that several other posters have raised since you seem to have missed it.
You ask where the debate is about the various costs, benefits consequences et all of gay marriage. Do the legislative debates and bills by the California Legislature that were veto'd by the Governor (citing this court case as the fig leaf reason for the veto) not count as the debate?
It happened over the last fifty years or so, and the consensus was that we want marriage to be "a lovey-dovey spiritual union," that it's okay for marriage and kids not to coincide, that you should be able to marry just about anyone who wants to marry you, and that you should be be able to get into and out of marriages without much hassle. That's what people have been doing, anyway. It is a little late in the day to be demanding the great public debate over marriage.
Whatever one might think of the . . . decision, it pretty clearly makes [same-sex couples] happy, and happy for the right reason -- the common human desire to have them, their families, their love, and their mutual commitment recognized.
I've always been interested in the dynamics of the SSM debate because it seems to me that this is in fact the main point, on both sides. People talk about health benefits, wills and child rearing, but I don't know of anyone who finds these issues decisive. The decisive question is who/what should be "recognized."
The spattering's of talk radio/editorials/articles that crop up aren't what I would call a comprehensive public debate. The Iraq war is a comprehensive public debate, albeit imperfect. Gay marriage has existed in the public eye as a hodge-podge of editorials and arguments. Social change takes years to show effects, what happened recently in Canada, MA, or Scandinavia is not iron-clad proof of anything, one way or another. If you got in a time-machine and told black families in 1950 that they'd be turning their back on education in droves and viewing marriage as a 'white man's thing' in the future, they'd probably deck you in the face. Social change affects things in completely unintended ways.
BTW, how is your marriage holding up (assuming you are married). Are you planning a divorce now that gays can get married? IF not married, have you decided marriage is off the books for you forever because of this? IF not, why not?
I have zero moral qualms about gay marriage. It doesn't make me feel bright and chipper to be kind of down about something that simply makes a lot of people happy. But to simply go, "Eh, people are happy and this doesn't affect me" is an easy, and cowardly, stance. I'd rather see a much more open and vigorous public debate about the many different aspects of this issue before blindly blundering into something because it makes me feel good. This is like McCain and his showboat antics over torture. Did the country have a tough but honest search over our views, or did we get cheap, sanctimonious demagoguery that if anything has made the issue more murky? That's what I don't like about this judicial fiat stuff, it's short-term feel good-ery without any concern for airing long-term outcomes.
The Federal government will still not apply the rules for Social Security and other federal programs to the same-sex marriages so that will be their next hurdle.
Good luck to all these people.
Two related thoughts.
First, in Massachusetts, voters began the process of passing a constutional amendment to overturn Goodridge. As the process unfolded, two SJC judges, via dicta in a related case, opined that such a constitutional amendment would itself be unconstitutional. That belief was shared by the Mass. Attorney General. Although the constitutional amendment died in the legislature, judges and attorneys general opining that the people of Massachusetts are not sovereign sends shivers up my spine. When decisions such as this are so thoroughly unmoored from the actual constitution, is it a suprise when even judges are free to say that the people cannot amend the constutition?
Second, one interestng difference between Mass and CA is appointed (MA) vs elected (CA) judges. This should be an interesting electoral cycle for them.
Back to Eugene's initial point: yes, now gay and lesbian couples can marry in a few states, and those individuals are justifiably happy. But there are constutional amendments in many more forbidding such marriages as a direct result of Goodridge. The door to gay marriage is closed right now for more people than it is open for because of such activism.
So you're saying that when they wrote "equal" they didn't really mean "equal"; they meant "something like equal, some similar-to-but-not-quite-equal state that can be referred to and marketed as "equal" but not require that anything ever actually change". Got it.
Did it die during Loving? Did it die during Brown? A court affirmed that people have rights. That doesn't kill democracy. It gives it life.
It must be wonderful to be in a position of privilege where no one is going to suggest a referendum on your rights.
The legislature has voted for full marriage equality twice already.
The court has not "created" a right to marriage for gay couples. It has argued that if the state has conceded that domestic partners should have, under state law, all the benefits and responsibilities of married couples, the designation of a separate and distinct category must be suspect, under strict scrutiny, to the inference that the designation is based on a desire to deny gay couples equal dignity and recognition. WHICH IS AGAINST THE CALIFORNIA CONSTITUTION.
The courts simply interpreted current California law, which is what courts do. Only when it's something you don't agree with is it "legislation from the bench." Don't be pathetic.
If you really are against same sex marriage for whatever reasons, then stop whining like a pathetic victim and go sign a ballot initiate to amend the constitution.
In 50 years it won't matter anyway. Kids today don't care at all. When they are the adults men will marry men and women will marry women all over the country, and there's not a damn thing you can do about it.
You write: "Whatever one might think of the social or legal consequences of this sort of decision, it pretty clearly makes them happy, and happy for the right reason." Therefore, I guess, whether we agree or disagree with this decision or its "consequences", we should at least be happy for those people whose lives have been made happier.
I'm not really sure what to make of that. It's hard to decipher the real argument on the other side of this debate, but as best I can tell, opponents of gay marriage think it's a morally corrosive idea. That it will break down important traditional bonds, weaken the institution of the family or perhaps our cultural identity, and cause a kind of net loss in social utility and happiness.
I honestly have no idea whether they're right, and I don't think anyone knows for sure. But let's assume they are for a minute, and let's assume you agreed with them. Had the court ruled the other way would you have written:
I'm happy to congratulate same-sex couples in California on their new-found freedom to wed. But I worry that it's doing what you're doing--just focusing on the people we can see--that obscures the hard questions raised by the debate.
It reminds me of Justice Brennan's dissent in CFTC v. Schor, where he complains that the majority has purported to "balance" the interest in something concrete (efficiency) against something as abstract as cultural identity (judicial independence). He explains the error:
“In doing so, the Court pits an interest the benefits of which are immediate, concrete, and easily understood against one, the benefits of which are almost entirely prophylactic, and thus often seem remote and not worth the cost in any single case. Thus, while this balancing creates the illusion of objectivity and ineluctability, in fact the result was foreordained, because the balance is weighted against judicial independence. The danger of the Court's balancing approach is, of course, that as individual cases accumulate in which the Court finds that the short-term benefits of efficiency outweigh the long-term benefits of judicial independence, the protections of Article III will be eviscerated.” 478 U.S. 833, 863-64.
I want to hasten to add that I've never been able to decide who's right about same-sex marriage. But I think the social question isn't as easy as the proponents of change want to make it seem. And hard social choices should be made by legislative process (including, I should add, the cautionary protections of a governor's veto). I'm not so sure we should be happy for those whose happiness may come at our collective expense.
Here's an analogy: you may congratulate someone who's won the lottery, but (keep your seats, libertarians) lotteries are socially bad. They impose more social cost than the benefits they create. And so when a state decides to, say, fund its public education system through a lottery, do we say "Congratulations to all those future winners out there!" or do we say "In little ways, this will hurt us all. Especially poor people and school children, no one of which will be made as sad as the winner will be happy."?
I don't know if gay marriage will hurt us all. But that's the question. And I suspect that by focusing on our attention on the happiness of a few without regard to the "social consequences," you mean to suggest the answer.
"So you're saying that when they wrote "equal" they didn't really mean "equal"; they meant "something like equal, some similar-to-but-not-quite-equal state that can be referred to and marketed as "equal" but not require that anything ever actually change". Got it."
All i am saying is that those who wrote and enacted the "equal protection clause" clearly did not define gay marriage rights as falling within the protection of that clause. They would have laughed incredulously if anyone at the time had asked "does this mean gays now have the right to get married"?
Can anyone doubt that?
Well, no one is blindly blundering into SSM. Usually, it requires getting to know the person first. But if we take your objections at face value, then when does the debate begin? If there are ANY effects of SSM, we simply won't know them unless we implement SSM. So your argument is really, we don't know anything about SSM, so we shouldn't even try. With that logic, you are forever closing the door.
Foolsmate: "Congratulations are in order, if one's objective is to devalue the institution of marriage"
Ah, my favorite objection to SSM! Okay, Foolsmate, how far has YOUR marriage been devalued? Love your wife less now? Maybe you've kicked the kids to the streets. Or if you aren't married, then I suppose you have totally given up on marriage at all?
I guess it's very hard to feel superior to gay people when they now are on an equal footing to you. Don't worry, you can still kick around muslims, from what I hear. I'm sure you are very morally superior to them, at least.
I'm feeling the odd urge to cheat on my wife, just because of this California opinion -- and I live in Mississippi, so lord only knows how badly marriage has been devalued further west!
I blame judicial activism.
No, but I'm willing to bet that they were smart enough to understand that such bold language would eventually lead to changes that none of them could foresee, and perhaps to changes that, if enacted immediately upon passage of the constitution, would have made them uncomfortable.
Those who wrote "All men are created equal" into the Declaration of Independence would likely have been appalled to have that language appropriated during the fight to have voting rights extended beyond wealthy landowners to all white men, then again to all men of any color, and once more to women. But they staked out the principle and left it for succeeding generations to work out the details.
When they wrote the "equal protection" clause into the California constitutions, they surely didn't mean for it to codify the existing balance of equalities and inequalities at the time the phrase was enacted, but to stand as a principle of equality toward which the law should always be striving, so that when some group (i.e, same-sex couples wishing to be married) stands up and says "Hey, we don't seem to be receiving equal protection under the marriage laws here" thr court will turn to that principle.
I'm willing to bet that there are any number of changes, both trivial and significant, flowing from that language that its architects could not have foreseen and would have been discofitted by. Same-sex marriage is surely not the first or the last such.
People who support same sex marriage seem to start from the assumption that homosexuality is a normal condition and that society should not discriminate against people who are born that way. But just because someone is born with a condition does not make it normal. People are born blind and crippled and with all kinds of defects. Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose. Whether homosexuality is caused by a gene or a mother’s hormonal changes, the condition is not normal.
So the question is, should we as a society support or encourage this deviant behavior. In Western societies the birth rate is lower than replacement level, so encouraging homosexuality would be detrimental to society. If as gender studies advocates say, there are not two genders but a range that is flexible, then we should do what we can to discourage flexible members of society from deviating away from being child productive. In societies like China where overpopulation is a problem, perhaps homosexuality should be encouraged and, especially for men since female babies are being aborted at a higher rate and there is a surplus of men.
When people are born, say, without feet, we don’t say “Be crippled and proud” and let them crawl on the ground. We give them artificial limbs to help them be normal. Why is it we encourage gays to be deviant and proud instead of finding ways to help them be normal?
Nor did they think that women were equal to men. Your point is?
In Western societies the birth rate is lower than replacement level, so encouraging homosexuality would be detrimental to society.
Oh, brother. Sure, if you assume that the present level of population must not decrease.
But we're not talking about encouraging homosexuality -- who, exactly, is going to develop a taste for sodomy as a result of this decision?
One could argue as well -- nah, better -- that by promoting the marriage relationship, the law encourages homosexual couples to reproduce (you will recall that this is possible?) and thus will *add* to the birth rate.
If this is true, it scares me too. This would mean that the courts are the true source of the law and that we are all mere subjects of our masters in the black robes.
And I really get ticked off when a spouse in a gay marriage is referred to as "his husband." Why not just "spouse" or "partner"?
Okay, this does not look as outrageous as the comment above led me to believe. I think the amendment process in MASS is hopelessly difficult....but if that's the way they want it, that's the way they get it.
Oh, if only we rubes could see the world through your enlightened eyes. The only morally superior attitude on display here is your own apparent disdain for what in your eyes are ignorant, low-brow proponents of the actually quite reasonable proposition that the institution of marriage is between a man and woman. That is what marriage is understood to be by the overwhelming plurality of voters in California and the U.S. Marriage is also commonly recognized as a cornerstone of successful societies, and yes, I do believe that arbitrary tweaking its definition by judicial fiat, in opposition to the vast majority view, undermines the institution of marriage. Plenty of others hold this view. It is not about lording it over gays and only your own ignorance and intolerance for opposing viewpoints would lead you to say so.
Well...as Bill Maher put it, why don't you call what you're doing a civil union?
This decision was a foregone conclusion once they decided to apply strict scrutiny...interestingly, they dismissed the immutability argument pretty quickly (it was always a piss poor argument, good to see that these Republican judges could see through it).
The same-sex marriage debate is almost always about attacking homosexuals. Sometimes it is about the proper role of the judiciary, that is true, but it is never about marriage. If this was about marriage, we would never have seen the right to contraceptives develop. If homosexuality is so perverse and abnormal, why do we encourage heterosexuals to mimic homosexuality by having non-reproductive sex? Oh right, because we've accepted the ethical principle of individual self-determination in these matters...as long as it involves a penis and a vagina or a couple that do not share the same or similar genitalia. That is what social conservatives have been reduced to arguing about: attack homosexuals, cover it in language about judicial overreach or the sanctity of a version of marriage that doesn't exist now, if it ever truly did, and maybe you can bash the gays just a little bit longer.
Trying to infer a moral lesson from the assumed details of somebody else's personal life has more downside than up for your argument.
Indeed, it did. Teh gayz are taking over -- them and the Muslims and the Amerikkka-hating, black Christian preachers are conspiring to turn us all into Gay-Married, Sharia-practicing, Amerikkka-hating Communists who preach that we need to pick ourselves up by our bootstraps rather than rely on the racist gov'mint.
Interestingly, the patchwork of domestic partnership ordinances, statutes, administrative regulations, etc. may make marriage more problematic for the couples who seek it. Opponents of same-sex marriage, by forcing proponents to compromise in the form of domestic partnerships and civil unions, may have inadvertantly opened the floodgates for those options to be open to opposite-sex couples as well, now that the courts are involved. Prepare yourself for headaches brought on by the litigation that will follow...particularly if an anti-gay amendment is successful in November. By then thousands of couples will have been married and we'll be faced with the question of retroactivity...
Giving gay couples marriage rights in the beginning would have been a much, much simpler and just option.
What rights of "all" Californians is this decision at the expense of? The "rights" to through the majoritarian process make laws preventing gay people from marrying other gay people? If that is what you mean, I am not sure why this is a profound harm, or a harm at all, to those affected.
... er, it's precisely because when federal constitutional amendment 14 was passed, they didn't think that women were equal to men, that ANOTHER amendment had to be passed to give women the right to vote.
Any federal judge who had relied on the 14th amendment's equal protection clause to give women the right to vote would have been guilty of making stuff up about the constitution, just as the california justices did today.
That's rude and uncalled for.
It doesn't matter what they intended, it matters what they wrote. And "due process" means that process which is actually due, regardless of what the person who wrote the words "due process" thinks is due.
The words "equal protection" mean protection that is actually equal. If we are guaranteed equal protection, and can argue that equal protection requires X, then we are guaranteed X.
Chimaxx wrote:
No, but I'm willing to bet that they were smart enough to understand that such bold language would eventually lead to changes that none of them could foresee, and perhaps to changes that, if enacted immediately upon passage of the constitution, would have made them uncomfortable.
Absolutely, which is why they included an amendment process so that future generations could change their handiwork. But judges arbitrarily changing the meaning of what they wrote? How could they ever have thought that acceptable?
Those who wrote "All men are created equal" into the Declaration of Independence would likely have been appalled to have that language appropriated during the fight to have voting rights extended beyond wealthy landowners to all white men, then again to all men of any color, and once more to women. But they staked out the principle and left it for succeeding generations to work out the details.
... and how were federal voting rights extended to african-americans and to women? By judges deliberately (or through ignorance) changing the meaning of the constitution, or by legistlatures and the people passing constitutional amendments? The latter, of course. Which is how the process is supposed to work.
When they wrote the "equal protection" clause into the California constitutions, they surely didn't mean for it to codify the existing balance of equalities and inequalities at the time the phrase was enacted, but to stand as a principle of equality toward which the law should always be striving, so that when some group (i.e, same-sex couples wishing to be married) stands up and says "Hey, we don't seem to be receiving equal protection under the marriage laws here" the court will turn to that principle.
For what you are saying to make sense, we have to imagine that if, say in 1890 (i don't know when the Cali EP clause was adopted, but let's just say 1890), gays had "stood up" and demanded to have their marriages recognized under this clause, those enactors would have agreed that the courts should "turn to that principle" and uphold that right.
Of course, this beggars belief. Those enactors didn't construe their clause to NOT protect gay marriage because gays weren't demanding that right, they construed it that way because they didn't conceive their concept of "equal protection" to cover gay marriage, whether gays liked it or not, protested it or not.
Since we know the enactors would have rejected the idea that a court could legitimately construe their words to mean that gay marriage rights are protected, they would have rejected your contention.
That's bad-faith sophistry in the extreme. It's not hidden homosexual basing to point out that bringing about social change by way of elite opinion, special interest advocacy, and judicial fiat is essentially a troubling 'ends justify the means' solution. That issue is bigger than just gay marriage, it says that using that framework to any end is a legitimate source of social change, and that's good for no one in the long-run.
You argument also arrogantly implies whatever you feel about marriage is self-evidently true, and that no great, democratic public input to massive social change is necessary. I'm open to gay marriage, but I, like many others, view marriage primarily as a difficult-at-times social arrangement that is in the long term interest of society, hence why the state provides benefits for it. To accept same-sex marriage is to accept that marriage has simply become a situation of two people that love each other. Maybe that's true, but let the ballot box speak to that.
Humorously, I see you've also hypocritically tried to head a logical outcome of marriage-as-purely-love off at the pass. By logic, if marriage is now simply an official sounding title to two people living together in love, the state has no compelling interest to offer benefits for this arraignment. People in love is nice, but it's not something in the pressing financial/social benefit of the state. But here's what you say about cutting state benefits from all marriages, straight or gay:
What great fun, suddenly when the goody wagon is threatened you become stuffy Mr. Tradition. Suddenly your same-sex marriage stance seems less progressive understanding of the current state of marriage, and more a whiny grievance narrative directed towards jumping on the good ol' fiscal gravy train. What noble times we live in.
That's bad-faith sophistry in the extreme. It's not hidden homosexual basing to point out that bringing about social change by way of elite opinion, special interest advocacy, and judicial fiat is essentially a troubling 'ends justify the means' solution. That issue is bigger than just gay marriage, it says that using that framework to any end is a legitimate source of social change, and that's good for no one in the long-run.
You argument also arrogantly implies whatever you feel about marriage is self-evidently true, and that no great, democratic public input to massive social change is necessary. I'm open to gay marriage, but I, like many others, view marriage primarily as a difficult-at-times social arrangement that is in the long term interest of society, hence why the state provides benefits for it. To accept same-sex marriage is to accept that marriage has simply become a situation of two people that love each other. Maybe that's true, but let the ballot box speak to that.
Humorously, I see you've also hypocritically tried to head a logical outcome of marriage-as-purely-love off at the pass. By logic, if marriage is now simply an official sounding title to two people living together in love, the state has no compelling interest to offer benefits for this arraignment. People in love is nice, but it's not something in the pressing financial/social benefit of the state. But here's what you say about cutting state benefits from all marriages, straight or gay:
What great fun, suddenly when the goody wagon is threatened you become stuffy Mr. Tradition. Suddenly your same-sex marriage stance seems less progressive understanding of the current state of marriage, and more a whiny grievance narrative directed towards jumping on the good ol' fiscal gravy train. What noble times we live in.
David Schwartz wrote:
Surely when the bill of rights was written, nobody intended freedom of speech to apply to the Internet. Surely when "due process" clauses were written, nobody intended them to apply to DNA testing.
Don't confuse an absence of intent for a different intent. The enactors had no intentions re DNA and the internet because they literally didn't know of their existence.
So since they had no intent, one way or the other, about how those new inventions should be treated, then of course present-day judges have no choice but rely on something other than that (absent) intent when making decisions about them.
In contrast, the enactors of the equal protection clause were aware of homosexuals. And there's no doubt that had someone suggested at the time of enactment that they were enacting a provision that protects and mandates gay marriage, they would have laughed incredulously at it. In this case, there is no absence-of-intent. The enactor's intent would have been clear: No, the EPC does not, and should not be construed to, protect gay marriage.
It doesn't matter what they intended, it matters what they wrote. And "due process" means that process which is actually due, regardless of what the person who wrote the words "due process" thinks is due.
The words "equal protection" mean protection that is actually equal. If we are guaranteed equal protection, and can argue that equal protection requires X, then we are guaranteed X.
Words are nothing but weird symbols scratched on paper sans their meaning. The meaning the enactors intended those words to convey is everything; the words merely vessels to convey that intention.
Since there's no doubt that the enactors would
I was hurrying out of the office when I posted and didn't have time to get links to the Mass. SJC and AG on the potential unconstitutionality of a constitutional amendment.
From the story in the Boston Globe:
"Attorney General Martha Coakley on Friday warned that a proposed state constitutional referendum seeking to ban gay marriage may be unconstitutional and may trigger protracted litigation if voters endorse the change in the nation's oldest state constitution....Coakley said that even though the Supreme Judicial Court ruled last July that the proposed amendment could be placed on the ballot if approved by the Legislature, at least two justices also questioned whether the amendment is constitutional. She quoted a joint court opinion by Justices John Greaney and Roderick Ireland saying the 2003 SJC decision that legalized same-sex marriage "may be irreversible because of its holding that no rational basis exist, or can be advanced, to support the definition of marriage" as only between a man and a woman."
So by going for legalized gay marriage through judicial fiat over the ballot box supporters have also codified that judges are now secular God's-made-flesh who can decide the very rationality of existence. Everybody's cool with that, right?
I agree with this, but I think Alec's point is that many people ("social conservatives") who make this argument are primarily motivated by antipathy towards gays and use this because it is the best argument available. Maybe not so much on a law blog, but in general Alec is correct. Principled opposition to process does not constitute the bulk of the objection. That doesn't mean all the objection comes from "God hates fags" style bigots, either, but it seems to me that the supposedly reasonable fear of change doesn't match up with the social reality on the ground where homosexuality is already tolerated.
I just saw your second post above--you'll note I didn't have time to get a link, either :). You have the right decison, and you are correct as to the holding (unanimous) on the key point regarding the constitutional convention. But it was the dicta from Greaney and Ireland, followed by the AG's speech a year or so later, that concerns me. I have no way of knowing if the opinion could have gotten 4 votes if the specific question were at issue, but that any judge could have possibly advanced the theory is scary.
Here is the case, Schulman v. Riley, and here is some short commentary from the Mass Trial Court Law Library
I would have agreed if there was any way to limit this line of argument in an intellectually honest way, but there isn't. That argument would foreclose Brown v. Board, Roe, etc. No one wants to argue that, however, not even Bork's disciples in the Federalist Society.
Moreover, I can make an argument that this decision is not about "social change" at all, since gay couples have been living openly in California for some time. It doesn't really even result in legal change, since they cannot touch federal rights attached to a marriage license and domestic partnerships were providing the functional equivalent of marriage for the last few years. That change was brought about by the legislature, not by the courts.
Additionally, I noted that some commentators have legitimate questions about the role of the judiciary, but most of those who discuss it are really just interested in gay bashing. The Family Research Council wants to arrest homosexuals for having consensual sex in the privacy of their own homes. Those people are bigots, and any argument about judicial overreach, coming from them, is so ruthlessly self-serving that they can be dismissed out of hand. It has become quite clear that there is no principle of judicial restraint that actually guides them.
You argument also arrogantly implies whatever you feel about marriage is self-evidently true, and that no great, democratic public input to massive social change is necessary. I'm open to gay marriage, but I, like many others, view marriage primarily as a difficult-at-times social arrangement that is in the long term interest of society, hence why the state provides benefits for it.
To accept same-sex marriage is to accept that marriage has simply become a situation of two people that love each other. Maybe that's true, but let the ballot box speak to that.
Well first, it is probably going to the ballot box, whether I like it or not, the California Supreme Court likes it or not, or any gay couples like it or not. Second, I didn't create the environment that made gay marriage obvious, reformers over the past century did.
The recognition of same-sex marriage isn't really about "people in love," as you say. Partly about that, because our society has that view of marriage, at least as reflected in the law. I think gay couples with children fall in the category that you speak of (i.e., they're raising the next generation, so we provide for them), but that isn't the situation you describe, is it? Because there is more at stake in not providing them benefits, isn't there?
Third, you're really opposed to the application of strict scrutiny, not in the outcome of this decision. They're not applying strict scrutiny in most cases, but this court did. A debate over the appropriate level of scrutiny will require delving into the nature of human sexuality and sexual orientation. That's the debate the social conservatives are really having, but they're cloaking it in abstraction after abstraction.
What great fun, suddenly when the goody wagon is threatened you become stuffy Mr. Tradition. Suddenly your same-sex marriage stance seems less progressive understanding of the current state of marriage, and more a whiny grievance narrative directed towards jumping on the good ol' fiscal gravy train. What noble times we live in.
You misunderstand what I am talking about. The government is entangled in marriage to such a degree that attempts to force it out of the institution are, well, pipe dreams for the Libertarian Party to debate at its next convention.
No, not really. Did the enactors of the clause understand that homosexual orientation is not a choice? Did they appreciate the difference between heterosexuals choosing gay sex because it was better than nothing (prison, boarding school) and gay people falling in love and wanting companionship? Being aware of same sex sodomy and actually understanding the cruelty of being raised by society to hate yourself are entirely different things.
When Robert Mugabe nullifies an election in Zimbabwe, we cry out in pious indignation. But when it happens here, our tyrants are toasted as enlightened liberators. If the people didn't want this to happen, they shouldn't have voted "wrong".
In a sane world, judges such as these would be immediately removed from office for gross incompetence and corruption. Their abuse of power would be regarded as disgraceful; the stuff of dictatorships. Instead, creeping tyranny is celebrated as a normal part of the political process. The voters don't run the show; the voters are merely an obstacle.
You act as though judicial review of statutes, whether passed by the legislature or by the electorate through the initiative process, is new.
This debate is really tiresome. I respect true advocates of judicial restraint, but they are such a small minority of the population (even if I included those without juris doctorates), that I find it difficult to even have a civil debate with the pretenders.
Does anybody think that we should repeal Loving v. Virginia* and restore the anti-miscegenation laws struck down at the state level by state courts because that change in the definition of marriage didn't happen through a popular referendum?
It seems likely to me that anti-gay marriage laws will suffer the same fate of a mix of judicial and statutory change, probably starting with the former (as was the case for anti-miscegenation laws, also struck down early on by the CSC), and in 40 years hardly anybody will regret the result.
* Loving v. Virginia has to be one of the best double-meaning court case names ever.
Good. This pushes towards the separation of marriage &state which is the way it ought to be. Separation of EVERYTHING and state and PRO-CHOICE on EVERYTHING.
Separation of Church &State
"" School &State
"" Marriage &State
"" etc.
For those who bemoan the "lack" of rights for homosexuals to marry, they have always had the right to marry, just like anyone else has. They have the right to marry someone of the opposite sex. That IS what marriage is, despite what the California Supreme Court pulled out of its posterior.
Heh. You wish you could afford to live in those neighborhoods where same-sex marriage is the norm.
It's because the CA Supreme Court made this decision as part and parcel of a system of republican government that permits the judicial branch, thank God, to "check" the worst of democracy/mobocracy, such as ballot measures that take away inalienable rights from social groups and individuals.
The Mugabe analogy is stupid to say the least. The Court has absolutely no "sword" power to enforce its decision, which is entirely how Mugabe gets his way.
They had to write a 170 page decision precisely because it has no power of the sword. If the decision is so bad as Mugabe's decisions are, nothing in the power of the court prevents the other branches of government from turning against it. Oh wait. They are on the court's side. The legislature in fact passed same sex marriage and the pro-gay marriage Republican governor said he doesn't support efforts to overturn the Court's decision by state constitutional amendment.
Your stated rationale for opposition to SSM boils down to these parts of your posting:
"...just because someone is born with a condition does not make it normal. People are born blind and crippled and with all kinds of defects. Biologically speaking, the purpose of sex and love is to propagate the species so homosexual sex and love is deviant behavior that goes against that purpose. Whether homosexuality is caused by a gene or a mother’s hormonal changes, the condition is not normal...why is it we encourage gays to be deviant and proud instead of finding ways to help them be normal?"
I'd like to comment on your point of view, but first I have a question or three which will help me to understand it more clearly:
1)Am I right in concluding from your posting that you'd consider sex between an infertile heterosexual man and a fertile heterosexual woman to be deviant behavior, and that you'd be opposed to their marriage being sanctioned by law?
2) Ditto for a heterosexual couple who have decided not to have kids for a) any of a variety of medical reasons, b) unstated reasons of their own?
I think you can see where this is going. I'm trying to tease out whether your opposition truly centers around species propogation, or whether it is based on some as yet unstated beliefs that you may have concerning homosexual behavior per se.
If no one even claimed the existence of such rights prior to 1970 or so, they can hardly be inalienable.
Besides, we've never been a democracy. In fact the Framers wisely saw the danger of too much democracy and explicitly adopted a system that limited the direct power of the people. Now we can talk about the legitimacy of the government and whether that arises from the consent of the government but that then comes down to the question of what role both the public currently and the political class at the time of adoption (as trusted representatives of the people) expect from judicial institutions. But whether conservative or liberal one thing that is depressingly common is that most of the public expects the court to implement what they see as the morally just solution not passive deference to the other branches of the legislature. Given this fact it seems ludicrous to suppose that somehow the courts have usurped power that wasn't legitimately granted them by the people. The truth is most people expect the courts to exercise less restraint than they do now...just in the way they agree with.
Like it or not we have a long tradition of courts as a co-equal branch of government that from time to time gets its hands dirty with the details of policy. Often these actions are widely acclaimed in retrospect (brown) so if you really want a limited judiciary you are the one demanding a change from the model of government legitimized by public acclaim (whatever they think of particular decisions).
Oh wait, I changed my mind. I want to marry my donkey and my sister. Is that a different line?
You bring up an interesting analogy between anti-gun laws and anti-homosexual "marriage" laws. The problem is that it's not a very good analogy.
There is a very clear part of the US Constitution that addresses the issue of gun ownership and gun wielding. There is no part of the US or California Constitutions that address the issue of people of the same sex being recognized as being "married." You see, that really is the point of the objection. These judges have just pulled this supposed "right" out of thin air.
But it's nothing new. Judges have been doing this for quite some time. It still doesn't make it right, though.
Neither is legal in Tijuana, where I last saw your donkey and your sister.
For better or for worse, California during the Progressive era incorporated significant elements of direct democracy precisely in order to limit the power of the people's representatives, including the judiciary, which, in defiance of the people, has just minted a shiny new fundamental right based largely on the acts of the state legislature.
And you're not seriously suggesting that same-sex marriage falls under the category of an unalienable right derived from the Laws of Nature and of Nature's God?
"We hold these truths to be self-evident:
That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men...."
Yep, sounds to me like it is.
They go on and on about how marriage is now devalued, but never ever come up with an explanation of just how that is going to happen. Some are so bitter, they want to come up with a new institution (sorry, but new fashions always start with gay men, not heteros). Then when you call them on it, they say, oh no - nothing against gays! I'm just against judicial fiat and changing an institution.
So terrific. What do you non-gay bashers suggest for two gay men who can't get married but have adopted children? Don't those children deserve married parents? If marriage is the strong instutition that has survived lo these many centuries, how is it that it will crumble with a handful of gay people getting married? We really are that powerful?
Come now. The changes will be insignificant. And if it really bothers you, then don't bring a gift when your gay couple next door invite you to their wedding. Just ignore it. Then everyone is happy, okay?
Clear to you and a new, post-NRA conservative judicial movement. What would probably be clear to most honest textualists is the presence of qualifying language: "A well-regulated militia." Moreover, what is an "arm" that is covered by the amendment? Those available when it was ratified? That is a question beyond the scope of the text, with clear policy ramifications.
For years, the fourteenth amendment was construed to permit separate but equal race relations...in public education, government employment, marriage, etc. Did the clear meaning of the text change to prohibit bans on interracial marriage at the time of the Loving decision? Why was it expanded to invalidate gender distinctions?
It isn't as easy as you have been persuaded to believe by others with an agenda that is, in fact, not the promotion of majoritarianism.
Care to elaborate? I'd really like to see a serious teleological natural law/right argument for SSM. Quoting the self-evident (half-)truth of human equality doesn't strike me as sufficient.
Randy, your smarmy screeds which feature no real argument beyond 'I like the outcome and don't care how it got there' are a good stand-in for most of the same-sex boosting posts on here. Lot's of gloating with no real intellectual defensible position. For all the cries of secret homophobes behind every keyboard, head over to pajamasmedia and you'll find a gay blogger making the exact same 'worried at precedent' case.
The sad thing is so many same-sex marriage boosters immediately adopt this 'Hah, in YOUR FACE' attitude, which sort of runs counter to the 'small, humble numbers of gay couples just waiting for their chance to be married quietly' meme. In fact, it seems more a case of an ideologically hardened group using a limited sector of state power to get their way, then lording it over everyone else. That's exactly what turned public opinion so sour after the MA decision, not gay marriage, but the loud gloating of the same-sex boosting crowd. And if same-sex boosters adopt the same needlessly smarmy jabs that are displayed in this thread this time around, they'll snatch defeat from the jaws of victory just as they have before.
You bring up the arguable, but incorrect, notion of the right to bear arms being limited to militia membership. Fine. But it's still an arguable point, not concocted out of thin air.
"Separate but equal" is again an arguable notion, though surely wrong because it is not possible to be equal and separate in the real world.
Anti-miscegination laws are clearly wrong because it's none of the government's business who is married to whom.
The point is that marriage is between a man and a woman. The only purposes the government has in recognizing marriage are to more easily denote parentage of children, and to encourage procreation as public policy. Neither of these have anything to do with homosexuality, unless you want to say that public policy should discourage such behavior. Somehow I don't think that would be very popular these days.
There really is no purpose in declaring homosexuals as being "married" except to further a political agenda. I'm not even sure of the aim of this agenda except to convince others to think such behavior is normal. It appears to be succeeding. Anyone watching television or movies in the past few years would conclude that the majority of American men are homosexual, and most of the rest are whimps.
Help you with your bag, sir?
Noted without comment.
Really, for a law blog, this place has a lot of snarkiness and refusal to use argument.