As the fight over gay marriage continues in Massachusetts, we find out that the proponents are bypassing the legislature and the people and going to the courts to get their way.
One of the things that helped keep gay people from all over the country flocking to Massachusetts to get married, and putting the “full faith and credit” clause to the Constitution to the test, was a previously-little-known 1913 Massachusetts law that said that a marriage conducted in Massachusetts that was illegal in the home state of one of the participants would not be valid. It was put in place as a stand against inter-racial marriages, but the law was never repealed.
So when a couple from Hart’s Location, NH drove down to Massachusetts to tie the knot, they were informed that since New Hampshire wouldn’t let Les and Ed conjoin, neither would the Bay State.
Yes, the courts do have the ability to strike down laws. But there are other ways — ways that depend on the will of the people. And if gay marriage is in any way going to succeed, it has to have the support — or at least the grudging tolerance — of a majority of the people.
Under our system of government, the three branches provide checks and balances on each other. When one branch is perceived as going too far, the others can act to stop them.
In Massachusetts, the governor can appoint successors to the judges making the unpopular rulings. The legislature can impeach and remove them from office. And in a further step, the people themselves can simply change the Constitution and re-write it to suit their beliefs, not those of the judges.
Such a move is underway right now. People are getting petitions signed to ban gay marriage, in backlash to the high-handed moves of the court and the outright obstructionism of the legislature. And, naturally, those two bodies are doing everything they can to hamper the petition effort.
It’s a tough call for me. On the one hand, I’ve long been a supporter of gay marriage. But I’m an even stronger supporter of democracy and the rule of law, and the side I support has abused that, while their opponents are acting in the truest sense of democracy.
I don’t think this will end up in a civl war or revolution in Massachusetts, but damn, it’s fine entertainment.
Jay said:
“It’s a tough call for me. On the one hand, I’ve long been a supporter of gay marriage. But I’m an even stronger supporter of democracy and the rule of law, and the side I support has abused that, while their opponents are acting in the truest sense of democracy.”
I think this is one of many areas that should not be put to a popular vote. Democracy does not always mean the majority rules. Just ask the pre-emancipation slaves.
One major difference between slavery and gay marriage, is that the resistance to emancipation had a stake in the fight–they stood to lose something real and valuable.
What I don’t understand is, where is the stake in the anti-gay marriage movement? How in the hell does any citizen have an interest in the distribution of property upon the death of a stranger? Or the ability to obtain insurance for a loved one? Or any of the other legal presumptions, rights and administrative advantages that define “marriage” in the eyes of the state?
The state’s recognition of “marriage” does not mean God or whatever is sanctioning the union. It merely means a person can confer rights and legal presumptions and other advantages upon the person they love. What rational interest does the state or the populace have in interfering with that?
It was put in place as a stand against inter-racial marriages…
…and is now being used as a stand against gay marriages.
That tells us alot about the current debate. Issues involving civil rights should never be subject to popular approval.
If something is constitutional on a federal or state level, like equal protection, free speech, or the ability to wed, it is constituional regardless of what the popular vote may be.
Those against gay marriage understand their only hope is to muster enough intolerance and bigotry to amend state, and ultimately federal, constitutions.
Younger people are more supportive of gay marriage than older folk by a wide margin. As these old bigots die, popular support for this civil right will grow. But we shouldn’t have to wait for such a demographic change. The geezers know this, hence the dramatic push for constitutional amendments.
Heh, I’ll go a step further after this caveat*
* I have never read any cases or statutes or briefs or even arguments in favor of gay marriage, so I don’t know what tacts have been taken, or what the arguments have been. Although I am essentially a lay person on the topic, I’ll stick my neck out here and argue that gay marriage is a civil rights issue and will eventually be recognized as a constitutional right.
Simply put, gays are being deprived of equal protection of the law based on their sexual orientation. This is prohibited by the 14th Amendment of the Constitution.
Now, states are allowed to discriminate against different classes or groups, but there must be a reason. There are different tiers of tests that are used to determine whether the state’s interest is sufficiently strong to justifiy the harms caused by the discrimination.
Generally, the stonger interests in protecting a certain class, the more stringent of tests is applied to the State’s interest. The weaker the class interests, the weaker the test of the State. For example, to discriminate based on immutable characteristics like sex or race, the State must have a pretty damn compelling reason to do so. On the other hand, sexual orientation is not generally recognized as a protected class, so the State need only prove a weaker interest in what is essentially a cost/benefit analysis.
I have a hard time believing any state can articulate a rational interest in confering rights only to members of different sex relationships, while denying same sex relationships. At least, I can’t imagine that putative interest being sufficiently compelling to tilt the analysis in its favor.
Arguments similar to mine have probably been made, and they were undoubtedly stronger and more compelling. I don’t know how they were received. I’m just winging it here.
However, I am confident that our children will live in a world where gay civil unions are a constitutional right.
Thank god I’m straight.
The answer, I believe is quite simple. The state always has interferred in the business of its citizens. It’s apart of the contract between citizens and the state. The state sees fit in regulating every other aspect of our lives there is no reason to NOT expect it to regulate this aspect. And as people have grown more dependent upon government (NEW ORLEANS etc) we have been shown just how dependent some people are on the actions and interferences of government.
Honestly, I believe it should be put up to a vote. That is the most direct way to determine these issues. Let the people decide!
Marriage in not now nor has it ever been a right. It’s a privelege. Rights don’t require a license, rights aren’t conditional in the sense of having to qualify for them. Even straight couples have to meet requirements to marry. You’d think a lawyer would undertsand that. You’d be wrong in Mark’s case.
Mark on the flip side, to be devil’s advocate, two straight men or women cannot marry and receive the tax benefits as well. There was a story in Canada or the UK where two straight men married precisely for the tax benefits. Its more than just a civil rights issue.
Respectfully,
Robert
Robert and Bullwinkle,
I guess I wasn’t clear.
The right at issue is to be treated equally under the law. That is one of our most basic rights guaranteed by the 14th amendment.
States can treat us unequally based on certain criteria, but ONLY if they have an interest in doing so. The interest in treating people unequally must be articulated. What is it in this case?
Bullwinkle, it is probably debatable whether marriage is a privilege or a right. But that misses the point of the 14th Amendment’s equal protection clause. Without compelling reasons, people must be treated equally.
Three of you have disagreed with me, but none has articulated a rational state interest in the disparate treatment. Any further thoughts?
Gotta add one thing:
Bullwinkle. By your reasoning, it would be constitutional for a state to confer marriages only on white people. Do you believe for a second that your “marriage is a privilege” response would justify that type of discrimination? I hope not, because you would be very wrong.
Granted, the state’s test is much more stingent in the race case; in fact, its insurmountable. In the gay case, the required justification is more relaxed. BUT, WHAT IS IT???
They have equal protection, they have the opportunity to apply for a license to marry, and just like any other couple they must meet the requirements of the license or they don’t get one. Just like a marriage, hunting, fishing, barber’s or even a dog license. I couldn’t care less if they marry or not, I just care about the way they go about getting the privilege and the dishonest way they are going about it now is never going to help their cause. Other than that, you’re right, it is debatable, try debating your way out of a driver’s license supsension with a judge by claiming driving is a right and he’ll likely threaten you with disbarrment on the grounds of gross stupidity.
Bullwinkle, you’re absolutely right in the drivers licence scenario. Until you suggest that the state can impose a requirement that drivers may only be white. Or male. Or Christian. Or straight. Or have a third nipple. The state is REQUIRED BY THE CONSTITUTION to articulate rational reasons with varying degrees of urgency for each of those types of discrimination. What is it for gay marriage?
You are missing a huge, well-established point. Are you just not capable of grasping it? Don’t worry about it, just keep calling me stupid.
People have been getting married and divorced for tax purposes since the adoption of the US tax code. Nothing new there.
If marriage is a privilege, then gays have the constitutional right to be treated equally and be allowed the same privileges as straights.
What is required to get a marriage license? Answer: A pulse and proof you are over a certain age, parental consent if you’re underage. You don’t have to be able to read, breed, drive or have a job. Hell, you can be in jail on death row and you can still get married. You can be in Vegas, get a marriage for the weekend and divorce on Monday. It’s done all the time. So spare me the ridiculous notion that marriage is a privilege.
The only privilege connected to marriage is the privilege that comes with being straight.
Raise your hand if your marriage is somehow diminished now that we’ve had gay marriages for a year in Mass.
Those who say it’s not a civil right to be treated equally have no business being able to vote. Our democracy depends on a modicum of intelligence from our voting populace, so let’s require all voters pass an intelligence exam before voting.
Only then will I agree to address civil rights grievances by popular vote.
By your loose interpertation of rights nobody can be denied a license for anything. Can’t pass a driving test? No problem, we can’t infringe on your right to drive. Wanna marry your sister? Go right ahead. Haven’t passed the bar? We can’t block your right to practice law. I bet that one hit home. Several times in your case I’m sure. You’d be laughed out of any court in Texas if you used your “it’s a right” argument. Most of the judges I know would order you to refund the fee to your client to make sure you’d remember the difference between rights and privileges, just as soon as they quit laughing at you.
The problem with democracy is that “the people” as a whole are all too often ignorant, prejudiced, and other nasty things… but if we ignore the will of the majority, isn’t that tyranny, even if we’re SURE what we want to enforce upon them is right?
The will of the people can’t be held sacred when they agree with us, and in contempt when they don’t; you have to pick one viewpoint and stay with it, and be clear about which camp you’re in.
I’m all for gay marriage, always have been… but I’m NOT for acting against the will of the majority, and that means that I wouldn’t support any attempt to end-run around the people to get laws passed.
There are many specific issues that face gay couples that CAN be dealt with now, for example laws could be passed to allow people to designate ANY beneficiary for their life insurance, ANY guardian for their kids, ANY joint owner for their assets, ANY person to be allowed to visit them in intensive care, and so forth… these things would most likely be enactable right now, and once people are used to gays having steadily more “marital rights,” they’ll fight less against them actually marrying, and THEN we can legalize gay marriage with the support of a (tiny, probably) majority.
Mark,
I can understand why you don’t want this issue put to a vote since you’ve adopted the extreme position of equating prohibition of same sex marriages and slavery. I’m pro-gay marriage myself, but your argument is fallacious and using that standard the PETA chicken/holocaust meme is quite apt and perfectly valid. If gays can’t
And BTW, democracy actually does mean the majority rules. Democracy is in fact little more than formalized mob-rule. That’s one of the reasons the founding fathers created a republic, they didn’t trust the democratic element on a large scale.
Also, there are those who are against same sex marriage who feel they do have a stake in the outcome. My parents and brother are people who oppose it, my wife and I support it. We’ve had numerous disagreement about it but they remain convinced that allowing same sex marriage damages the institution of marriage and weakens the social fabric. I’ve argued that the same can be said for no-fault divorce, but they have a valid argument and it’s not based on homophobia, if it was they wouldn’t have my cousin and his partner over for the holidays every year.
John,
The thing is, before the DOMA, there’s never been any federal involvement in regulating the institution of marriage, that’s always fallen to the states. It’s not a constitutionally enumerated right, it should be a state issue. You say that,
“Those against gay marriage understand their only hope is to muster enough intolerance and bigotry to amend state, and ultimately federal, constitutions. When in fact it has been the activists in our own camp, the pro-gay marriage camp if you will, who’ve repeatedly attempted to subvert the will of the majority by using the courts to mandate what the voters (60% to 70% in every state so far) don’t want.
I agree that younger people are more supportive of gay marriage than older folks are, therein lies our advantage. If we’re smart and we continue to fight within the system, in another ten years it will be a settled issue and gays will be able to marry just like straights. But if our side continues to piss on the will of the majority, we’re not going to win converts and we’re going to start alienating more and more people.
Also, with regard to the 14th amendment and the equal protection clause, I don’t think it’s the silver bullet all y’all think it is.
No state shall deny to any person within its jurisdiction the equal protection of the laws.
Sounds like it should apply, but until the SCOTUS decides to extend suspect class status to gays and lesbians it probably won’t work for the gay-marriage argument. Case in point, in Lawrence v. Texas the SCOTUS struck down a Texas statute prohibiting homosexual sodomy on due process grounds, not the Equal Protection Clause because the justices found it did not meet the standard for rational-basis review.
Mark, also in reference to the question you posit Bullwinkle, a state attempting to confer marriages privileges to whites only would find all attempts to do so thwarted by the SCOTUS, because racial minorities are a suspect class granted protection by the 14th amendment.
Good thinking John.
Those who say it’s not a civil right to be treated equally have no business being able to vote.
Isn’t it an inarguable right to exercise freedom of speech? I do believe that one is included in the Bill of Rights. You’d scream like a little girl if someone said you were going to lose your right to vote if you spoke out in favor of gun control. You’d cry like a baby if you lost your right to vote because you falsely claimed marriage was a right. And if you had to take a test on rights you’d undoubtedly fail, so quit voting.
Perhaps bullwinkle is onto something here:
priv·i·lege (priv??-lij, priv?lij) noun
1 a. A special advantage, immunity, permission, right, or benefit granted to or enjoyed by an individual, a class, or a caste. See synonyms at right. b. Such an advantage, an immunity, or a right held as a prerogative of status or rank, and exercised to the exclusion or detriment of others.
You know, I think bullwinkle is right about this one thing. Marriage, as currently defined and administered in every state except Mass, is a benefit granted to a class of individuals to the detriment of others. In other words, a privilege.
And it is clearly unconstitutional to grant that privilege to individuals based solely on their sexual orientation.
So far, nobody in this thread has given a sound defense for banning gay marriage. They are hiding behind the patently absurd notion that it should be voted on. Come on, people, show your true colors! Why shouldn’t they be able to wed?
Bullwinkle, this one is for you:
“By your loose interpertation of rights nobody can be denied a license for anything. Can’t pass a driving test? No problem, we can’t infringe on your right to drive. Wanna marry your sister?”
These are perfect illlustrations of how the 14th Amendment works:
The 14th Amendment permits states to discriminate based on age in the contexts of drivers licenses ONLY because they have articulated that:
(1) Age (maturity) is rationally related to promoting,
(2) the state’s (important) (strong) (compelling) interest in protecting the health and safety of its citizens on the highway.
Get it? Same goes for cognitive ability (pass the test), health/disability (visual acquity).
Get it? States can discriminate only if the discrimination is rationally related to a valid state interest.
Marriage licenses are the same. The state has an interest in recording the relationship to prevent fraud, to confer benefits, etc. They have an interest in prohibiting siblings marrying because that is rationally related to the government’s interest in preventing the birth defects believed to be caused by inbreeding. Etc.
Now getting back to my question,
Can you think of a reason to prohibit gays from driving that is rationally related to a vaslid governmental interest? I thought not.
Now, answer the same question related to marriage.
John,because they suffer from a mental illness
Marriage is still a privilege in Massachussetts also. You still can’t marry your sister or get married at age 9 or marry a goat, at least I hope you can’t. Your reasoning that if it’s ok for one it’s ok for all is nearly as ridiculous as thinking I’m only right about one thing. LMAO
Robert Modean,
Thanks for being the first (and only) person who attempted to answer the question regarding the state’s interest.
However, I did not equate gay marriage to slavery–at least I didn’t mean to. I offered the latter only as another example of why civil rights issues should not be left to majority vote.
Robert Modean,
“Suspect Classes” are not the only classes protected by the 14th. Whether something is a suspect class determines the scrutiny applied to the state’s proffered justification. But everybody is protected regardless of their membership in some class. The only thing that changes is the degree of scrutiny.
That’s what I mean earlier when I said racial discrimination is held to much higher scrutiny and discrimination based on sexual preferences is a much lower standard. But either way, the state MUST show a rational relationship between the discrimination and the promotion of some state interest, whether it be a ho hum interest or a compelling one.
Robert:
How is acknowledging that state supreme courts are correct in their interpretation that gay marriage is constitutional not “within the system?”
Nothing is being hijacked, nobody is being pissed on (that we know about, privacy and Lawrence v. Texas notwithstanding) and nobody is thwarting democracy. This is how the founding fathers wanted civil rights issues to be decided. Look to the constitution.
Besides, if you are correct and the supreme court cannot find that being gay is a suspect class enough to invoke the 14th amendment, than what are you all worrying about? Let’s just continue to demonize gays and treat them as second-class citizens until the bigots and homophobes die, then take a vote and we’ll all be happy?
The problem with that thinking, and I the problem I have with Jay’s conundrum of having a pro-gay-marriage-but-not-really-until-we-all-agree-on-it position is that it’s disingenuous.
If you are for gay marriage, then you do what you can within the “system” to make it so. Whether it’s spewing in forums such as this, writing your congressman, walking in a protest march, supporting high-school gay & lesbian awareness clubs, teaching your children that you should not discriminate against homosexuals, or taking on a case pro-bono to the supreme court of Mass, you do something.
Sitting around and waiting for people’s stance to evolve to something human doesn’t cut it.
Bullwinkle, your arguments are absurd to anyone with any familiarity with the equal protection clause of the 14th Amendment. Your analogies are severely flawed, and your conclusions defy logic. You’re flat out wrong on the law.
Aren’t you one of those who thought constitutional law is so easy everyone should be able to roll their own?
You really ARE a dim-witted moose, aren’t you?
Mark, can you think of a compelling reason for a state not to allow lawyers to marry goats? I never once said a thing about not allowing gays to drive or get married, all I said was claiming it’s a right is dishonest and counterproductive, much like your pitiful attempt at argument. Get it?
Just to be clear, is our government a democracy or a republic?
I think that bears on this discussion, particularly with respect to those who argue that the will of the people must prevail (even if those people represent 51% of the population).
Our government imposes certain provisions to protect the rights of minorities, a policy which should be acknowledged in this and any other debate in which the majority seeks to affect the rights and privileges of a minority.
Bullwinkle,
For constitutional purposes, both driving and marriage are considered protect-able by the 14th Amendment. It is immaterial whether you think they are rights or privileges. For our purposes, the Constitution treats them the same. Like it or not, I’m not making this up.
Furthermore, discrimination in the conxtext of driving or marriage is put to the same test. Whether you’re prohibiting blacks or gays or martians from driving or marriage, the intellectual process is identical. The Supreme Court would apply the same rules and tests, and go through the same process.
The only difference would be degree of scrutiny applied to the government’s interest. Established protected classes like race require a stronger state interest, while classes like sexual orientation require a less compelling state interest.
My question is, and always has been, what in the hell is that state interest? Robert Modean offered a couple he personally disagrees with. Are you, or anyone else, ready to take a stab at it?
Before you return with more nonsense babble, I suggest you re-read what I just said. Your comprehension is consistent with your screen name, so I want to make sure you at least try to understand what I’m saying.
AndrewSpencer,
You just hit a very important nail on the head. I alluded to what you said, but you said it! I agree completely. Thanks.
14th. Amendment
to the U.S. Constitution
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Actually you are making it up, until the U.S. Supreme Court strikes down the laws of any of the 11 states banning gay marriage by law(Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon or Utah.) as unconstitutional nobody is being denied due process. They have passed their bans through due process. Are you sure you aren’t a something other than a lawyer? Maybe a dentist or a hair dresser or something? Maybe you need to read a few things carefully, like the things you are claiming to know so much about. You make me laugh, you backed off of the “marriage is a right” line and now are going with “whether you believe it’s a right or a privilege”.
No, I’m not a lawyer, but I DID stay at a Holiday Inn Express last night.
Therefore I have at least as much common sense as bullwanker to note that the due process clause has to do with not depriving anybody of life, liberty or property. Unless you are arguing “Yes, we’re depriving gays liberty but, hey, we did through due process by passing a law.”
I think what those of us who are sentient are referring to is the last clause which states you cannot deny any persons (I think that includes gays, but check me on that one) equal protection.
Seems straightforward to me.
No, bullwinkle, I never said marriage is a right. I didn’t need to, because that’s immaterial. I’m willing to go with your idea that it’s a “privilege.” The result is the same.
And no, I’m not talking about due process. I’m talking about equal protection. Your comments prove you understand neither.
You amaze me. First you analogize marriage with driving, and then claim my use of your analogy is unfair. Yet for purposes of constitutional analysis, it was perfect.
Although you are flat-out wrong at every level, I’d like to remind you about the caveat I posted at the beginning. I have done no research on the gay marriage front, I’m only basing my opinions on my familiarity with constitutional law. In the context of gay marriage, I could be wrong about some specific details that haven’t arisen here. But the basic constitutional analysis of the 14th amendment is well established, and that’s what is flying high over your head.
Although I’m sure most people reading this thread understand what I’m talking about, you happen to be proof positive of the need for attorneys and judges to interpret the constitution. You have no fucking idea what you’re talking about, and there are probably hundreds of people laughing at your idiocy from this very thread alone. Seriously, you are so far out of your element it embarrasses even me. If only you had a clue as to how much you don’t know–the depths of your ignorance are beyond comprehension.
Bullwinkle, I’m done responding to you. I will continue to respond to thinking, rational people, and there are several here who are likely to disagree with me for valid or debatable reasons. You are not one of them.
Now, if anyone wants to articulate a valid reason for the state to discriminate on the basis of sexual orientation, I’m still listening. If someone doesn’t speak up soon, my gavel will drop and I’ll declare it unconstitutional for the reasons I’ve repeated ad nauseum for the benefit of the dim moose.
I don’t think it falls under equal protection because gay and straight people are treated the same, neither can marry someone of the same sex.
The reason for the problem is marriage is traditionally to protect the children and family, to swear in front of the community to be loyal to your family and have the community accept your oath. No one allowed for the legalities of insurance, benefits, etc. until recently. Traditionalists have a hard time getting their mind around the issue because gays can’t have children or religious issues, and just because old traditions die hard.
I think gays have been shooting themselves in the foot by balking at civil union type compromises, I understand their wanting to fit in and be accepted, but you is it right to try to force the community to bless you if they are truly opposed to the idea?
And personally I have no problem with it whatsoever, back in my wilder days I got ordained from a vending machine and married a couple of my gay friends before my preachers liscense expired.
B Moe, your first point is one I anticipated, and it is valid in my opinion. However, I’m pretty confident the class could be defined other than “sexual orientation” and it would be workable. Although you are quite correct, I think your point would be considered specious. I don’t mean that as a slam against you, I just mean a court might view you as hypertechnically trying to define around the true issue.
Protecting children and family are definitely important state interests. But how does one distinguish between a same-sex marriage and an infertile marriage? My mother was infertile, so I was adopted at birth. Gay couples are incapable of conceiving, but they are allowed to adopt–or they can conceive through someone other than their spouse. Shouldn’t those children, or those families, also be protected? I think you would say yes.
You might be right about gays shooting themselves in the foot. Then again, doesn’t the “civil union” versus “marriage” semantic smack of the “seperate but equal” doctrine of Plessy v. Ferguson? Just sayin’,
It’s nice to read a rational reply. Thanks.
That’s exactly why you aren’t a judge even in a munincipal court, and never will be. I understand both completely, you are the one who doesn’t have the foggiest idea. Please do ignore me though, I do the same with you. I knew when I made the crack about not passing the bar it would piss you off. LMAO How many times did it take? Or how many more?
Yikes, I don’t understand why yall are even continuing this thread. Minds appear to be made up on all sides. Most of the arguments have been made before in this and other venues. Its starting to get a bit personal and even a bit ridiculus. No argument is likely to change minds when its based on calling your opponents idiots.
Let it go says I, yarr. Lots of other things to worry about, like those damn Yankees. How can they be allowed to keep buying their way into the post-season?
Tob
And we the people should have the right to remove irresponible judges who have abused their power we should have the right to remove these idiots from the bench and the judges should have their powers halted when they have abused their power
Hey, the Angels will handle the Yanks. Not to worry.
Yeah, the topic has been covered before, but I’ve never participated. One thing I have yet to hear is what legitimate interest does the State have in prohibiting same sex marriages? –and how is that interest rationally served by the prohibition? I am genuinely curious, and a couple people actually offered some ideas. But there must be more.
Unfortunately, the more vociferous opponents here seem to rely on the “will of the majority” bit rather than honestly addressing the issue. Ironically, these are people who claim to be in favor of gay marriage.
One thing I have yet to hear is what legitimate interest does the State have in prohibiting same sex marriages?
Upholding the law. It’s every bit as valid as any other law that has not been ruled unconstitutional by the SCOTUS. Don’t read that! What legitimate interest would the state serve by ignoring the will of the majority? Don’t read that either! In your dreamworld lawyers, even second rate ones like you get to dictate what is and isn’t valid law.
Mark,
My apology, having heard other proponents of same-sex marriage make the gay marriage/slavery link I responded on the premises that you were doing the same. Also, I agree that suspect classes are not the only classes protected by the 14th amendment, however I was commenting specifically about the use of the equal protection clause to overturn state laws or state constitutional amendments. As you point out SCOTUS generally looks at whether the state law in question grants a particular class of individuals (a classification) rights that it denies other individuals – those other individuals are the suspect class. Since there is no defined methodology for determining when a classification is unconstitutional SCOTUS applies a stringent analysis and uses the strict scrutiny standard when it embodies a suspect class.
The Supreme Court has dictated the application of different tests depending on the type of classification and its effect on fundamental rights. At this time no law or amendment has come before SCOTUS where they consider the population of Gays and Lesbians to be members of a suspect class. In fact if not for the fact that the law in Lawrence v Texas was only struck down because it outlawed homosexual sodomy. Had it outlawed all forms of sodomy, both gay and straight, it would have been upheld. The SCOTUS will accept a state classification as constitutional if it has a rational basis and a legitimate state purpose. For some reason they seem to think that the states have a rational basis and a legitimate state interest in what two consenting adults do behind closed doors. I can’t for the life of me wonder why, but they do.
Bullwinkle, it appears you actually tried to take a stab at this, so I’ll respond:
Your first idea totally begs the question. It is circular. Do you recognize that? It’s a non-answer.
The second idea is completely irrelevant. The constitution does not care how popular it is. Majority rule does not trump constitutional protections.
Got any other ideas? Show me you really understand as much as you claim. So far, you’ve added nothing except ad hominem attacks based soley on your own ignorance. Perhaps you should look up that word.
Modean!
Hey, somebody who makes sense! Are you a lawyer?
Yeah, the rational basis and legitimate state purpose are what I’ve been trying to elicit from these people. It hasn’t been forthcoming.
Like I said earlier, I haven’t read any cases concerning this issue, so I don’t know how the courts have specifically treated the class status here. Has the SCOTUS even addressed gay/lesbians in the context of marriage yet?
Are you now asserting that a law passed by the voters does not meet the due process qualifier? If so are you asserting that the role of the courts is not to uphold laws that meet the due process criteria? Is a standing law not valid just because someone doesn’t like it?
Circular reasoning? Inorance? Ad hominem attacks? Please explain those to me me, I see perfect examples in what you’re doing, but you seem to have some kind of reverse dictionary there.
Then maybe you can explain why none of the gay marriage bans have been struck down by the courts. Maybe those judges have a little better understanding of the law than you, I know it’s a stretch, but it could be possible…
Bullwinkle, I’m not sure what you think you’re trying to say in that first paragraph because its incomprehensible. However, if you are suggesting a law passed by popular vote automatically passes constitutional muster, you’re sorely mistaken. Very wrong.
Also, you forgot to read my caveat at the top of this thread regarding my lack of familiarity with cases directly on point. I certainly have not attacked any court decisions, and I don’t even know the grounds on which those laws were attacked. However, I know you’re wrong about the your claim that courts have not upheld gay marriages. At least one has.
Now, if you would like to rely on one or two of those cases and attack my reasoning, have at it. If you’ll notice, Robert Modean corroborated what I said about the constitutional test these marriage requirements, or gay marriage bans, would be subjected to. Within that frame work, I’ll listen to your comments. Otherwise, I’m done with you.
Now, with regard to your circular logic, let me explain. When a court is confronted with the constitutionality of a state law, it adds absolutely nothing to say that the state has an interest in upholding its law, which may or may not be unconstitutional. It is circular. It begs the question. It’s a non-response. Are you familiar with syllogisms?
John,
Maybe you should re-read my post – I’m pro same-sex marriage. You’re hostility to me is misdirected, but it is also a perfect example of exactly what has helped set back same-sex marriage initiatives. Since I don’t agree with your assessment that Issues involving civil rights should never be subject to popular approval I’m the enemy? Keep it up John, that kind of arrogance plays so well with our opponents on this issue, why not just start insulting everyone who doesn’t kiss your feet and tell you how right you are, oh wait – you’re already in attack mode:
Those against gay marriage understand their only hope is to muster enough intolerance and bigotry to amend state, and ultimately federal, constitutions.
Therefore I have at least as much common sense as bullwanker…
I think what those of us who are sentient…
Yep, if people don’t agree with you accuse them of bigotry, call them names and insult their intelligence – tell the truth, you work for Howard Dean, right? Right?
BTW, you might want to look at a copy of the constitution yourself. The founding fathers never foresaw the SCOTUS deciding civil rights issues, that’s unsupportable on it’s face since the basis of SCOTUS power is derived from Marburry v Madison in 1803, some 16 years after the constitution had been adopted.
Also, I’m not demonizing gays, but I’m not made about using judicial activism to enact laws the people don’t support. That’s the kind of thinking that leads to popular backlash against the judiciary, of course you probably don’t care what the masses of the great unwashed think, and that’s your problem. See, I’m a strict constitutionalist libertarian, and while I don’t like the fact that nearly 70% of the people in my state (Missouri) voted for a marriage amendment that bans same-sex marriage, the thought of using the MSSC or SCOTUS to overturn the amendment is repugnant to me. The correct method is to get the people to agree to repeal the amendment, go your way and you’ll lose people like me – and it’s not like your making converts by being an arrogant ass.
Mark,
You made the comment, “Now, if anyone wants to articulate a valid reason for the state to discriminate on the basis of sexual orientation, I’m still listening.” and IMO it is a perfect example of where this all went wrong in the first place.
Marriage is a private institution, the federal government should have nothing to do with it and DOMA should be declared unconstitutional. The states, however, have a vested interest in the regulation of marriage, but aside from guaranteeing that people aren’t blood relatives, and that both parties are of the age of consent, I don’t see what other restrictions they should emplace. The correct way to handle this IMO is for states to allow same-sex marriages at the justice of the peace, and let religious institutions handle marriages as they see fit.
They are questions, q-u-e-s-t-i-o-n-s. If you are incapable of anwering each one individually just say so.
1.Are you now asserting that a law passed by the voters does not meet the due process qualifier?
2. If so are you asserting that the role of the courts is not to uphold laws that meet the due process criteria?
3. Is a standing law not valid just because someone doesn’t like it?
And I’ll add one I was holding for your answers to the first three.
4. In the case of the states these were all constitutional amendments*, doesn’t that make them constitutional?
*These are not state codes or statutes, these are amendments to the constitution.
You don’t have to answer, my point has always been claiming it’s a right or that a ban is unconstitutional only results in the backlash that Jay mentioned. If you want to dispute that then read this.
The proposed amendments in Mississippi, Montana and Oregon referred only to marriage, specifying that it should be limited to unions of one man and one woman. The measures in Arkansas, Georgia, Kentucky, Michigan, North Dakota, Ohio, Oklahoma and Utah called for a ban on civil unions as well.
In most cases, those additional provisions generated extra controversy. Some prominent Republican politicians and GOP-leaning newspapers, while stressing that they opposed same-sex marriage, spoke out against the amendments on grounds that the measures might prevent the extension of even very limited partnership rights to unmarried gay and straight couples.
Claiming it’s a right or unconstitutional pissed a lot of people off. If they keep trying to shove it down our throats by circumventing the legislative branch they’ll only keep hurting their cause.
Robert Modean,
With regard to your second paragraph, I agree wholeheartedly with everything after the first sentence. I agree that the federal government should have nothing to do with it, except to the extent the SCOTUS may need to be involved in constitutional challenges against state laws. I can’t comment on DOMA.
I do take issue with some of the things you said to John, particularly about the validity of majority rule on this issue. It was for these reasons I brought up slavery earlier on. This IS a republican form of government, and there ARE safeguards to protect the minority. Hence, the Constitution. If gay marriage is to be viewed as a civil rights issue, which I do, then it should be decided by the courts rather than waiting for the masses to lighten up. I’m not advocating judicial activism.
I am curious though: What is your criticism of my one line that you feel made “all this” go wrong in the first place? You seem to agree with me on that point. Beyond blood and age, what is the state’s legitimate interest regulating other aspects of marriage?
Is This Gay Behavior Sick?
Henry Makow, Ph.D.
November 21, 2001
Imagine that an organism is sick. Imagine that the sick cells convince the organism that they were healthy, and in fact, the healthy cells are sick. The gullible organism would just get sicker and sicker.
This is the relationship between society and homosexuals today. Gays argue that same-sex behavior is no different than being left-handed. On the other hand, they say heterosexual behavior is not natural, but socially conditioned and “oppressive.” Heterosexual society and family are being ravaged. Our stupid, opportunistic and craven leaders have betrayed us. We don’t even know we are at war.
Let’s decide whom, in fact, is sick.
Let’s look at gay behavior as defined by two gays, Marshall Kirk and Hunter Madsen Ph.D., authors of After the Ball: How America will Conquer its Fear and Hatred of Gays in the 90’s(1989).
In Chapter Six, they outline “ten categories of misbehavior,” drawn from their own experiences, wide reading and thousands of hours of conversation with hundreds of other gays. Their contention is that the gay lifestyle, not gay sexuality mind you, “is the pits.” They want gays to improve their image by addressing “what is wrong with a lot of gays.” (276)
What follows are some highlights. As you read this, ask yourself if there is another human community, including the Mafia that could make these generalizations about itself. Ask yourself if we haven’t caught this disease, or at least the sniffles.
• The authors say “a surprisingly high percentage” of pathological liars and con men are gay. This results from a natural habit of self-concealment, and leads to a stubborn self-deception about one’s own gayness and its implications.
• They say gays tend to reject all forms of morality and value judgments. Gay morality boils down to “If it feels good, I’ll do it!” If a gay feels like seducing a trusted friend’s lover, he’ll do it, justifying it as an act of “sexual freedom” and the friend be damned.
• They say gays suffer from a “narcissistic” personality disorder and they give this clinical description: “pathological self absorption, a need for constant attention and admiration, lack of empathy or concern for others, quickly bored, shallow, interested in fads, seductive, overemphasis on appearance, superficially charming, promiscuous, exploitative, preoccupied with remaining youthful, relationships alternate between over idealization and devaluation.”
• As an example of this narcissism, the authors say “a very sizable proportion of gay men” who have been diagnosed HIV positive continue to have unprotected sex.
• They say the majority of gays are extremely promiscuous and self-indulgent. They must continuously up the ante to achieve arousal. This begins with alcohol and drugs and includes such “forbidden” aspects of sex as wallowing in filth (fetishism and coprophilia) and sadomasochism, which involves violence.
• They say many gays indulge in sex in public bathrooms and think it is antigay harassment when it is stopped. Many think they have a right to importune straight males, including children.
• Many gays are “single minded sexual predators” fixated on youth and physical beauty alone. When it comes to the old or ugly, gays are “the real queerbashers.” Disillusioned themselves, they are cynical about love.
• “Relationships between gay men don’t usually last very long.” They quickly tire of their partners and fall victim to temptation. The “cheating ratio of ‘married’ gay males, given enough time, approaches 100%.”
• Even friendships are based on the sexual test and hard to sustain. Unattractive gay men find it nearly impossible to find a friend, let alone a lover.
• The authors say gays tend to deny reality in various ways: wishful thinking, paranoia, illogic, emotionalism and embracing crackpot ideas.
Is there any doubt that this behavior is sick? I feel no malice toward gays. I feel the same way about people who have the flu. I want them to get better and I don’t want it to spread.
Unfortunately, even the authors of this book are deceiving themselves. They claim that it is the gay lifestyle and NOT gay sexuality that is “the pits.” Who are they kidding? The two are inseparable.
The authors of this book are public relations experts who believe that “our problem is fundamentally one of bad image with straights.” The book details “a comprehensive public-relations campaign that should go a long way towards sanitizing our very unsanitary image:”
“Desensitization”: flooding straight America with advertising presenting gays in the “least offensive manner possible.”
“Jamming”: Advertising that equates fear of gays with hatred of Jews, Blacks and women.
“Conversion”: Presenting images of gays that look like regular folks. “The image must be the icon of normality.”
They say “it makes no difference that the ads are lies” because “we are using them to…counter negative stereotypes that are every bit as much lies.”
This book was written in 1989 and obviously a campaign similar to this has taken effect. Read what the authors say about it:
“By Conversion, we mean something far more profoundly threatening to the American Way of Life [than subversion] …We mean conversion of the average American’s emotions, mind, and will, through a planned psychological attack, in the form of propaganda fed to the nation via the media. We mean…to turn their hatred into warm regard whether they like it or not.” (153)
Thus gays want Americans to learn that something they naturally and justifiably regard as sick, is in fact healthy. Thus Americans will be defenseless to resist their importunities whether in parks, barracks, bathrooms or classrooms.
It is a measure of the authors’ cynicism and self-deception that THEY quote psychologist M. Scott Peck, who in People of the Lie characterizes people who suffer from “malignant” narcissism simply as “evil.”
Evil people, Peck says, have “an unshakable will to be right and will not consider the possibility that they are wrong…Their main weapon, interestingly enough is the lie with which they distort reality to look good to themselves, and to confuse others.” (297)
Gays can continue to fool themselves. But let us not. Some of these people are evil. Their behavior is sick. And it’s contagious.
Toogood Reports contributor Henry Makow Ph.D. is a student of gender. He is the inventor of the board game Scruples and the author of A Long Way to Go for A Date.
Visit his website or send him e-mail at scruples@escape.ca .
Copyright © 1999, 2000 by Toogood Reports. All rights reserved.
bullwanker:
You are so afraid to state your opinion. You try to dance around the issue and then, finally, after all your disingenous crap-slinging, we get a little closer to your true feelings in the matter of Gays v. Monkeys:
If they keep trying to shove it down our throats by circumventing the legislative branch they’ll only keep hurting their cause.
So please, expand on this. I would like to see some honesty about why gay marriage should or should not exist. Some things are right and true, regardless if they’re laid out as so on a piece of paper or in a book to tell us they are right and true.
Tell us why gays should not wed, not why it’s not legal. Tell us why public opinion is against it, which prompts inane discussions like the one we’re having.
Is it the icky factor? Is it the pedophila factor? What is your problem with gays being in a relationship on par with yours?
Bullwinkle:
I’ll try to answer your questions:
1. I don’t know what you mean by the “due process qualifier.” However, if you are suggesting that laws passed by popular vote comply with some requirement of due process, you may or may not be right. There are other factors, as well. However, for purposes of this exchange, I will assume we are talking about a validly passed law via public vote. Now the question is whether it is constitutional. The answer could be yes, or it could be no. That analysis is independant of how the law was passed. If the public followed all the proper procedures to enact a law that required black people to sit at the back of the bus, I’m sure you can see why that would be unconstitutional.
2. The courts can strike down laws improperly enacted, or properly enacted laws that are unconstitutional.
3. No. I’m accounting for your double negatives. To be clearer, just because someone does not like a law, that does not make it invalid. Much more is required.
4. No. State constitutional amendments are probably constitutional in that state (can’t think of a reason why they wouldn’t). However, no state is permitted to have a constitution that violates the US constitution. Therefore, a state constitutional amendment may very well be unconstitutional in the federal sense.