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The Reign in Spain

Following the example of Belgium and the Netherlands, Spain has legalized same-sex marriage, according to the Associated Press (via the Washington Post. And Spain did so in the "right" way-- through a bill introduced into the parliament, debated upon, and approved by a majority of the members of parliament.

Which is how representative democracies generally work.

Which brings me to same-sex marriage in this country, where the pitched battle is extremely strong, and same-sex marriage advocates have pressed the issues in legislatures and in the courts. Why in the courts? Because, eventually, that is where almost all questions are settled in the American system. A law is passed, a law is challenged as unjust, and a jurist must decide if it's unconstitutional.

The system has merit; many issues are considered closed once the highest court in the land has spoken. But that doesn't mean that a court is the first, best place in which to enact such sweeping reforms as same-sex marriage.

The legal argument in favor of same-sex marriage, simplified, is along these lines:
1. Heterosexuals have the right to marry those whom they choose without restriction;
2. Marriage, including the right to marry the person of one's choosing, is considered a fundamental right; and,
3. The Constitution guarantees equal protection and due process for all, which includes fundamental rights.
4. Therefore, under the Constitution, gays should have the right to marry people of their choosing (i.e. individuals of the same sex.)

I happen to find the above argument persuasive, and a number of judges would find it so persuasive that they would enact same-sex marriage from the bench. Some judges have either done so already, or else indicated their willingness to do so through dissenting opinions.

But that doesn't mean that the courts are the proper venue in which to enact this social change.

Why do I say this? Abortion and civil rights.

In Roe v. Wade, the Supreme Court decision guaranteed a woman the right to obtain an abortion, subject to government regulation later in the pregnancy. Since the court decided this in the 1970s, the issue has become an irritating boil in the body politic as protesters show up at clinics with their signs, their chants, and their prayers. Meanwhile, legislatures push through regulation after regulation, only to have many of those regulations struck down in court.

In short, there is no real consensus on abortion beyond what the Supreme Court and other judicial bodies have handed down. The issue is frozen in amber, essentially undecideable beyond the trimester rules set in Roe.

Contrast this, with the civil-rights cases of the mid-twentieth century. Brown v. Board of Education (school segregation) and Sweatt v. Painter (law school segregation) reversed the "separate but equal" doctrine of Plessy v. Ferguson only after the NAACP assaulted the "but equal" aspect of "separate but equal," according to Wikipedia:

The NAACP's legal department, headed by Charles Hamilton Houston and Thurgood Marshall, undertook a campaign spanning several decades to bring about the reversal of the "separate but equal" doctrine announced by the Supreme Court's decision in Plessy v. Ferguson. The NAACP's first cases did not challenge the principle directly, but sought instead to show that the state's segregated facilities were not, in fact, equal. [Emphasis added]

By the time of Heart of Atlanta Motel, Inc. v. U.S., the issue was no longer "do blacks have the right to this public accommodation," but "can Congress enact this law." Note the distinction -- by the time of Heart of Atlanta, the general consensus -- expressed through the legislature -- was that blacks and whites should have equal access to facilities. Even the Constitution-based Loving v. Virginia was decided in part on the general consensus that blacks and whites should be able to engage in "generally accepted conduct" should they choose to marry across race lines.

Which brings us back to the question of same-sex marriage. While one might argue that a consensus has built up around gay rights, the success of anti-same sex marriage measures indicates that there is no general consensus in favor of the expansion of marriage rights to gays. It's not just, it's not right ... but it is. The consensus in favor of same-sex marriage just isn't there.

In fact, the consensus against same-sex marriage is so strong that many states have successfully adopted constitutional amendments that bar such unions. Those amendments, unfortunately, are the trump cards in the legal debate over same-sex marriage.

No matter how strong the legal argument, if the general populace is opposed to a measure, then the general populace will make its will known.

I do not argue that gays should abandon the fight for marriage equality. However, the courts are certainly the wrong battleground at this stage. Like the Roe decision, any court ruling that mandates same-sex marriage will meet likely meet resentment and resistance from the population at large. Ungalvanized, that resistance has already translated into state-level anti-gay measures and a strong push for a Federal Marriage Amendment. Galvanized, that resistance could be even stronger.

Before the courts are employed, that resistance must be overcome if the right to same-sex marriage is to be truly secured. This means that the public must be convinced in debates that same-sex marriage does not threaten the institution of opposite-sex marriage. This means that legislatures must be pressed to amend statutes. If the legislatures cannot be pressed, this means that campaigns must be mounted to replace the legislators themselves.

Yes, building consensus through the legislatures is much harder and less dramatic than the convincing a judge to apply his pen. But ultimately, it is the best way to achieve marriage equality without the divisiveness that arose in the wake of Roe.

Pennywit is the chief cook and bottlewasher at Pennywit.com.


Comments (22)

1. Heterosexuals have th... (Below threshold)

1. Heterosexuals have the right to marry those whom they choose without restriction;
2. Marriage, including the right to marry the person of one's choosing, is considered a fundamental right; and,
3. The Constitution guarantees equal protection and due process for all, which includes fundamental rights.
4. Therefore, under the Constitution, gays should have the right to marry people of their choosing (i.e. individuals of the same sex.)

Under that line of "reasoning," people could demand the right to marry minors or multiple people. NAMBLA and bigamists/polygamists would salute you.

Your initial premise, found... (Below threshold)

Your initial premise, found in point 1, is mistated. Heterosexuals have the right to marry a person of the opposite sex of their choosing. Not just anyone or anything that tickles their fancy at the moment. There are other restrictions on hetero marriage, as well, such as the prohibition (in most states) that first cousins cannot marry, even though medical evidence has shown that the birth defect rate to such unions is only marginally higher than that of the general population. A thirty year old woman may not legally marry a fourteen year old boy, although some hetero women (Mary Kay Lat., anyone?) wanted to do so.

The right to marriage for heteros is not completely unrestricted. So, as your point 1 is poorly formed, the conclusions drawn from it are voided.

Now don't run off, Penny, because I'm about to agree with you in effect (sort of), if not in the road you've taken to get there.

My take on this is that the State (i.e. the govt in general) has too much power in this regard. Legally, "marriage" is shorthand for a standard set of contracts. That's all the State should care about. IMHO, the State should not be in the business of sanctioning "marriage", as it were. They ought to be handing out package contract deals, for the convenience of their citizens. Call it a "State Union". Whether they give that out to two men, or a man and a woman, or fifteen ladies and one guy, who cares? If they are legally willing parties, capable of entering into the contract, then the State should have no say in the "who" question. This also eliminates the arguments (already expressed in this thread, and a direct consequence of your poorly formed points) that it would lead to people marrying their dogs, and pedophilia, etc. Children and dogs cannot legally enter into a contract.

Afterward, the interested parties can go to the church of their choice, and be married in the sight of God, if they so choose. Or, if they can't find a church that'll sanction it, they can just start referring to themselves as "married". Or start their own church. Or whatever. But it should be no concern of the State.

What the gay community ought to be arguing for is a removal of the "sanctity" of marriage from a legal standpoint. I wasn't aware that the State was in the business of recognizing religious sanctity (unless, of course, it Q'ran's!) To the state, it should be a set of enforcable contracts. Let God sanctify the actual spiritual union as He sees fit.

The argument you outline is... (Below threshold)

The argument you outline is a classic example of what is often referred to as "bootstrapping" - the argument only supports the conclusion if the conclusion is already accepted as true. Only if "marriage" legally includes homosexual unions is there any fundamental Constitutional right involved. And in some 2,000+ years of recorded western legal tradition, "marriage" never included homosexual unions. Until some judge decided, by judicial fiat, that 2,000 years of precedent was both wrong and not binding upon him/her. That is the very definition of an "activist" judge. If the law is to be changed, it should be changed by the legislature, not legislated by judges who make it up from wholecloth.

If I might ...I fi... (Below threshold)

If I might ...

I find it interesting that my brief, ultra-simplified argument in support of same-sex marriage has garnered so much attention, while the rest of my post -- which contains my real point -- has not.

--|PW|--

I find the argument express... (Below threshold)
Sabba Hillel:

I find the argument expressed by Roland of interest. As a religious person, marriage is a religious sacrament undertaken as part of a set of vows under the rules of a religion.

The financial and contractual rights and obligations should be treated as similar to the unlimited power of attorney that a person can grant. As such, the state should carefully define and separate the two.

Note that under the current set of rulings being set forth now, the polygamous (dissident sect of)Mormons of Utah should be able to sue to void the polygamy statutesas a restriction of their freedom of religion.

Under the contractual idea, the particular set of financial and legal rules that we now call marriage can be limited to a single person. The reason is that we can define the reciprocal responsibilities (such as inheritence) in such a way that polygamy and polyandry would cause a selfcontradicition within the contracts.

Also note that this completely separates the contractual details from sex. Thus, two heterosexual men (or women) or two relatives, can make such a contrct as well.

In response to the basic id... (Below threshold)
Sabba Hillel:

In response to the basic idea (legislation not court) the contractual method would seem to insist on that metho. The contractual details could not be set forth by the courts as there would be no method to determine what is or is not applicable.

Ever since the same-sex mar... (Below threshold)
Steve L.:

Ever since the same-sex marraige issue blew up recently, I have said that the gay community has gone about this all wrong. Pennywit has hit upon the same idea.

The more the pro-gay-marraige (PGM) forces push and use an "in-your-face" type of approach, the stronger the resistance of the anti-gay-marraige (AGM) forces. The best strategy would be to work on changing the perception that the AGM have of the PGM. For many years, the gay community has tried to emphasize that they are people just the same as heterosexuals. I would suggest they spend more time demonstrating in everyday life how this is true and spend less time holding gay pride parades and filing lawsuits. All that does is point out the differences in the two groups.

Sure, you will never change everyone's mind, but, over time, you can change enough minds to at least make gay marraige a possibility. This method means that it won't happen tomorrow, it may take years, but it will eventually happen. Unfortunately, the leaders of the movement just don't have the patience and foresight to do that.

"I find it interesting that... (Below threshold)
Toby928:

"I find it interesting that my brief, ultra-simplified argument in support of same-sex marriage has garnered so much attention"

Pennywit, I think that it has because the rest of your piece is something that we all agree with: That 'The People' should decide these matters through their elect representatives. I think that if you had not inserted the "ultra-simplified argument" then you would have had no comments at all other that the "First!" variety.

Tob
Tob

Name one fundamental right ... (Below threshold)
bullwinkle:

Name one fundamental right that requires a license to be exercised and I might be willing to believe a penny isn't overpricing your wit. Fishing, marriage, hair dressing, and driving are not fundamental rights. Being allowed to apply for the licenses to do any of them is, and providing that you meet the requirements as defined by law you then are granted the right to engage in them. I'm neutral on gay marriage, no skin off my nose, but claiming a right that does not exist really pisses me off. Using the equal protection clause to enforce a right that has never existed is so asinine that even lefties should avoid it. Even people on your side might notice how ridiculous that is. I doubt it, but it could happen.

Homosexuals have always had... (Below threshold)
Brad:

Homosexuals have always had the same right to marry as hetrosexuals, within the same constraints of the meaning of the word "marriage." That is, they can marry someone of the opposite sex who is (among other things) not a golden receiver nor an inanimate object.

What is in play here is not the "rights" of some downtroden sect of our society but the redefining of the tenets of our civilization to enact a "Brave New Society." Our Constitution describes a republic not a democracy. If some group wants to reform the foundations of our republic let THEM get a Constitutional Amendement passed.

If we have to mount a defense of the word marriage now what will we have to defend next, the definition of "free press," "freedom of religion?"

I think most can agree that... (Below threshold)

I think most can agree that if the people as a whole want this, then it will eventually pass, though I also think it will be likely to the detriment of the marriage and society.

I do have an problem with your description of marriage as a fundamental right. It is historically a traditional religion-based construct that binds a family together, with the family, again traditionally, being mother, father, and offspring produced by that union, and not a fundamental governmental right.

One reason gay marriage is a topic now is because of the artificial (i.e., non-biologic) ways in which offspring may be obtained - artificial insemination, surrogate motherhood, and adoption. But these are not in the natural course of events.

By your reasoning that nati... (Below threshold)
bullwinkle:

By your reasoning that nations that have passed laws allowing gay marriage shows how representative democracy works are the 11 states that passed laws against gay marriage not a fine example of representative democracy at work also?
Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio Oregon,and Utah all passed laws banning gay marriage by popular vote, it's likely that most other states will eventually pass similar laws. If popular vote isn't the true measure of an effective representative democracy what is? Do you only recognize a system that takes your side as right and choose to ignore the others? Your rapier wit and knowledge of facts and politics seem to be more than a little selective and subjective.

A note about marriage as a ... (Below threshold)

A note about marriage as a "fundamental right." I pull that language directly from Loving v. Virginia.

--|PW|--

Marriage is one of the "... (Below threshold)
bullwinkle:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I was hoping you would do that, that rapier is pretty dull isn't it? Unless homosexuality is a race or becomes one it doesn't apply. It also specifically states that the right to marry may be taken away under due process of law. If you truly respected representative democracy you would respect the voters that have said no to same-sex marriages. Unless and until the voters themselves decide that the rig

ht exists. A few activist j... (Below threshold)
bullwinkle:

ht exists. A few activist judges shouldn't ever have the power to override the people. Sorry for the break, hit the wrong button.

PW, I don’t t... (Below threshold)
jmaster:

PW,

I don’t think you should be too surprised by the content of most comments your post inspired. The vast majority of those who agree with the main point of your post (or at least what I consider to be the main point) aren’t likely to take the time to say “ditto”.

But those who disagree strongly with your initial statement are much more likely to go into debate mode, and home in on the one particular area with which they disagree.

Don't know if that is a good or a bad thing, but I think it is reality.

Bullwinkle:Sorry t... (Below threshold)

Bullwinkle:

Sorry to debate in comments like this, but would you mind following up your previous remark in light of this?

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. [Citations omitted]

The quoted material is from Brown v. Board of Education.

--|PW|--

I can if you explain how ed... (Below threshold)
bullwinkle:

I can if you explain how education is somehow tied to gay marriage. Maybe in the inner workings of the liberal mind it is, but I fail to see it. I also fail to see how you can ignore the voters in 11 states and somehow think that a few European countries (damn few) and Canada trump those voters. You proved Anne Coulter right , she said:

Democrats couldn't care less if people in Indiana hate them. But if Europeans curl their lips, liberals can't look at themselves in the mirror.


Sure looks like to me she was on to something.

Name one fundamental rig... (Below threshold)
Jesse:

Name one fundamental right that requires a license to be exercised...

Uh...the right to bear arms? Last I checked you needed a permit to own a gun. And if you're saying that's not a fundamental right, you've just pissed a lot of people off...

Not all states require perm... (Below threshold)
bullwinkle:

Not all states require permits to own guns, the states that do are incrementally taking away the right. It is a right that the same people that claim same sex marriage is some kind of right are usually the same ones that would like to see taken away.

What bullwinkle said ^^, a ... (Below threshold)
fatman:

What bullwinkle said ^^, a helluva a lot better than I could.

pennywit said, Heterosex... (Below threshold)

pennywit said, Heterosexuals have the right to marry those whom they choose without restriction

Not true. Must be consenting age as set by the state and not family related as set by the state. Also must marry someone of the opposite sex.

Marriage, including the right to marry the person of one's choosing, is considered a fundamental right; and,

Not true. State recognized marriage is a privilege in which certain conditions must be met.

Therefore, under the Constitution, gays should have the right to marry people of their choosing (i.e. individuals of the same sex.)

This makes no sense. Even if we buy the argument that marriage is a "fundamental right", no rights have been violated by denying "gay marriage". The marriage rules apply equally to all.

I do not argue that gays should abandon the fight for marriage equality.

They have marriage equality now. To deny that fact is to deny reality.

roland said, That's all the State should care about. IMHO, the State should not be in the business of sanctioning "marriage", as it were. They ought to be handing out package contract deals, for the convenience of their citizens. Call it a "State Union". Whether they give that out to two men, or a man and a woman, or fifteen ladies and one guy, who cares?

Society cares! Society recognizes marriage as beneficial and consequently affords some privileges towards the union in order to endorse it.

If they are legally willing parties, capable of entering into the contract, then the State should have no say in the "who" question.

Wrong-O. You're talking about marriage as if it is a contract without privileges granted by society.

But it should be no concern of the State.

You keep on saying this, but you offer no argument as to why "the State", or more accurately - society, should have no concern.

What the gay community ought to be arguing for is a removal of the "sanctity" of marriage from a legal standpoint.

This makes no sense.

I wasn't aware that the State was in the business of recognizing religious sanctity (unless, of course, it Q'ran's!) To the state, it should be a set of enforcable contracts.

Why are you bringing religion into this?

Sabba Hillel said, Also note that this completely separates the contractual details from sex. Thus, two heterosexual men (or women) or two relatives, can make such a contrct as well.

Society doesn't want that and isn't willing to grant the privileges of marriage to just anybody. Certain conditions must first be met in order for this contract to be granted.




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