Via a diary by Daniel at Tacitus
RedState has endorsed South Carolina Senate candidate Republican Jim DeMint. In fact, RedState said he represents "a dying breed."
All I can say to that is I certainly hope so.
Gays and lesbians should not be allowed to teach in public schools, Republican Jim DeMint said Sunday in a U.S. Senate debate.The remark came late in the first debate between DeMint and Democrat Inez Tenenbaum — a testy and acrimonious hour that broke little new ground on their positions on most issues.
DeMint, a Greenville congressman, said the government should not endorse homosexuality and “folks teaching in school need to represent our values.”
Tenenbaum, the state education superintendent, called DeMint’s position “un-American.”
DeMint said after the debate that he would not require teachers to admit to being gay, but if they were “openly gay, I do not think that they should be teaching at public schools.”
What a peach of a guy....he' won't require teachers to admit to being gay; he'll let the ones who hide in their closets keep their jobs. Hell, forget the formalities, let's make him Emperor right now.
Surely the GOP can do better than this.
Sebastian writes:
"Judges changing the law in that way was not part of the flexibility the founders built in to the system."
But my understanding is that judges are supposed to interpret the law in the context of new developments and changes in society. Perhaps this hinges on some discussion of precisely what was at issue in the MA case that I am not aware of (and I was much less interested in the MA case than in the SF case as an example of civil disobedience) I agree that one can interpret somthing in a way that completely changes it, but is there something specific in the MA case that had the judges changing the law?
Posted by: liberal japonicus | October 05, 2004 at 07:33 PM
Moe -- you've got mail :)
Sebastian: it's the predictable argument. The MA Constitution says things like:
The point of such passages is (and is read by the Justices as being) to say that there are certain "essential" rights which it is the purpose of government to secure, and which it cannot infringe arbitrarily. (It can imprison me after it convicts me, but not arbitrarily.) Moreover, that people have them equally (though they can forfeit them.) The rights listed are "among" these essential rights; thus, the essential rights are not limited to those enumerated. Which unenumerated rights belong on the list? If any right other than those enumerated is 'essential' to a person's liberty, the right to marry the person of one's choice would seem to be; and this view has various other decisions (e.g., Loving v. Virginia) behind it.
The Justices argue (pdf) that the state could infringe this right only if it meets some standard. They do not decide whether that standard should be strict scrutiny or rational basis, since they think it doesn't meet the rational basis test. QED.
About the fact that the people who wrote and voted in the MA Constitution didn't think that it would allow gay marriage: here I suspect that you and I are going to come down to a difference in views on interpretation. According to me, what we need to preserve in interpretation is the meaning of the terms, not their extension (this set of things they apply to.) Thus, if we are interpreting 'carcinogen', to get it right we need to interpret it as 'cancer-causing substance', or something; we do not need to agree with the people who drafted a law using that term about what things are, in fact, carcinogens.
In the case of gay marriage, if I had to guess, I'd suspect that I do not differ with the framers of the MA constitution that the right to marry the person of one's choice is a basic right. (If I did, the disagreement would probably concern whether I or e.g. my parents should get to decide; not whether or not the state should get to pick my spouse. I imagine that would have been just as horrifying to John Adams as it is to me.)
I suspect that the disagreement would have concerned the question, is there a rational basis for forbidding gay marriage? I suspect that to anyone in the late 18th century, the answer would have been 'obviously, yes', while to me it is, no. Here I think it's quite possible to say: we have learned things since then, things that are relevant to this question.
The basic point is just: I think I get there through straightforward interpretation of the MA Constitution. You may think I'm wrong, and/or that the Justices are; but while they and I might be misguided, I don't think we're obviously misguided.
Posted by: hilzoy | October 05, 2004 at 07:51 PM
"For one thing, the will of the indifferent majority can often be hijacked by a vociferous minority..."
I'm kind of annoyed that you would even bring such an excuse up in this context, as it clearly is not the case in this instance. If anything the argument is far more likely to run in quite the opposite direction.
An "excuse"? "Annoyed"? Oh dear. I was floating a general idea about some drawbacks of a purely legislative approach, so for me, that was the context. I actually realized after I posted that I should have begun the second paragraph with "regarding the second point" or some such thing. So sorry to have offended you, I'll try to be more careful in future.
I strongly suspect that people realize changing the Constitution in response to awful judicial decisions is incredibly difficult.
On this point neither of us have enough evidence, so I guess we should agree to let it lie. In any event, the feared reaction has not taken place in Massachusetts.
And if it forces a constitutional change denying gays the ability to marry (as it has done in other states)...
It's entirely true that I wasn't thinking of the effect that the decision had in other states.
Posted by: kenB | October 05, 2004 at 08:25 PM
And a straightforward understanding of the term marriage obviously includes all potential gender pairings? Only because you want to define marriage that way.
Posted by: Sebastian Holsclaw | October 05, 2004 at 10:14 PM
As for the meanings of words as enacted, I think it is a very clear sign that a particular interpretation is wrong if it can be shown to have been explicitly considered and dismissed by those who passed the law. Take away something that explicit and frankly you aren't left with much.
Posted by: Sebastian Holsclaw | October 05, 2004 at 10:48 PM
Sebastian: "I think it is a very clear sign that a particular interpretation is wrong if it can be shown to have been explicitly considered and dismissed by those who passed the law."
I disagree. First, we're talking about the extension, not the meaning, of the concept. There are lots of cases in which people think a term applies to X and then we learn something which makes us conclude that it doesn't, or vice versa. What's crucial is to be able to say what that something is in a way that makes the claim that we have learned something new, as opposed to changing our meanings, plausible. That's why I used the simple case of 'carcinogen': it's easy to explain why, despite the fact (pretend it is one) that the drafters of a law banning carcinogens from something didn't think their law applied to a given substance, but we do, without invoking any change of meaning at all.
In the case of gay marriage, as I said, I suspect that the difference between me and the framers of the MA constitution comes down to the question whether or not there is a rational basis for mandating that marriage be between a man and a woman. Here I think two things have changed. First, it seemed obvious then that gay marriage was ludicrous, and it seems a lot less obvious now. Likewise, it might have seemed (for all I know) just obvious that people from different races should not marry, back in 1780, but it doesn't now. This means that we need to consider arguments one way or the other, whereas they might not have thought they had to. Second, we now know various things that they don't. For instance, we have evidence about the effects on children of having two parents of the same sex; they did not. This means that whereas they might have assumed that those effects would be bad, we do not have to make assumptions; we can consider the evidence. Etc.
Bottom line: there's a story, which I find plausible, about why this disagreement exists that has nothing to do with changes in meaning, and everything to do with the combination of our not being tempted to see an answer to the question 'does the state have the right to deny same-sex couples the right to marry?' as too obvious to need a serious answer, and the fact that we know a lot more about some of the facts that are relevant to answering that question than they did.
Posted by: hilzoy | October 05, 2004 at 11:02 PM
Sebastian is an "original intent" originalist, which even Antonin Scalia claims not to be (though Scalia sometimes makes "original intent" arguments as well as "original meaning" ones in practice).
Also, Goodridge places less reliance on the ERA than he suggests.
Posted by: Katherine | October 06, 2004 at 12:22 AM
Katherine -- Once upon a time, in a land far far away called Princeton, there was a dinner for Antonin Scalia, and whoever did the seating had the perverse idea of seating me next to him. (I mean: you can't chalk that up to anything other than someone's truly twisted sense of fun.) He had just made an argument very much like Sebastian's, to the effect that the only alternative to original intent in constitutional interpretation was judicial activism, since without appeals to original intent there was nothing whatsoever to guide interpretation, and thus no alternative to judges' making stuff up. So somehow we started talking about this over dinner, and I made basically the argument I made above, and he said, basically, that moral terms were different from terms like 'carcinogen' (or whatever example I was using), and when pressed he ended up saying that this difference consisted in the fact that there is no way of telling how to apply moral terms correctly, at all. Argument ensued. And I remember this moment when I looked at him and said, "So, Justice Scalia, would it be right to say that the difference between you and Ronald Dworkin is that you are a moral nihilist and he is not?", and he said, "yes." I love this moment. -- Of course, it was over dinner and so forth, so it should not be taken as, um, his considered opinion. But it was classic.
Posted by: hilzoy | October 06, 2004 at 12:32 AM
I hope that comment came with the dessert course...
Posted by: liberal japonicus | October 06, 2004 at 12:53 AM
No I'm an original meaning constructionist, and a consensus among those who pass a law that its meaning does not include gay marriage is very strong evidence that the meaning doesn't include gay marriage. Original intent would involve trying to speculate on the MA ratifier's intention. That is completely unnecessary as the issue was explicitly raised and explicitly dismissed while the issue was being debated.
There is a huge problem with the 'carcinogen' analogy. It isn't the generally accepted understanding of the term marriage to include same sex partners. Evidence for that fact is the need to mention 'same-sex' marriage. If scientific evidence shows that something causes cancer, it becomes a carcinogen under legal definitions because carcinogen means 'cancer causing'. There is no similar analogy for a social concept. Science cannot discover that word marriage has meant all possible permutations of relationships because it has in fact never meant that. There are a huge number of intimate relationships that it does not cover. If we would like certain permutations to be covered by the term, people are welcome to use the democratic process to change them. Putting judges in the social change role is an abuse of jurisprudence and a horrible abuse of the Constitutional process. If you want people to respect Constitutions you can't whine to judges everytime you think something is unjust. You are supposed to whine to legislators or go through the Constitutional process. You can't appeal to a new 'understanding of rights' either, because if the community really had a new understanding you wouldn't be having trouble with the legislative process. One possible exception would be a Miranda type ruling, where the Court recognizes that well-established rights are not being vindicated by the current process. The key there is 'well-established'.
If the meaning of a word or phrase is explicitly examined by those who pass a law, and a certain interpretation is clearly out of bounds at the time, that meaning cannot be later added by judges without making a mockery of the whole process. Why bother passing laws in words if judges can transform them into something completely different? Why not just say:
Marriage Statute:
Marriage is blah blah blah blah blah blah blah blah, blah blah blah blah blah blah blah blah, blah blah blah blah blah blah blah, blah blah blah blah.
The rights conferred by being married are blah blah blah blah blah blah blah blah.
Marriage does not include blah blah blah blah.
My statute now limits marriage under your theory of jurisprudence exactly as much as:
Marriage is between a man and a woman, or
Marriage is between any gender, or
Marriage is any loving relationship, or
Marriage is a cat.
There have been zero new discoveries about the term marriage since the MA Constitutional amendment was enacted. The only thing that has changed is that gays are more vocal about their desire to codify their relationships under a marriage rubric which does not currently include the possiblity of two people of the same sex. This is not a discovery like 'X causes cancer'. This is a political desire which ought to be fulfilled or not fulfilled in the normal legislative channels.
Posted by: Sebastian Holsclaw | October 06, 2004 at 02:52 AM
"So, Justice Scalia, would it be right to say that the difference between you and Ronald Dworkin is that you are a moral nihilist and he is not?"
The correct answer is: legislators are empowered to make novel moral judgments in the course of their profession. A judge is not.
Do we let policemen decide what is against the law? No, that is not their function.
Do we let fireman decide military strategy? No, that is not their function
Do we let amusement park ride operators set SEC policy? No, that is not their function.
Ought we let judges make substantive changes to laws? No, that is not their function.
Ought we let legislators make substantive changes to laws? Yes, that is their function.
Posted by: Sebastian Holsclaw | October 06, 2004 at 02:56 AM
SebastianAnd a straightforward understanding of the term marriage obviously includes all potential gender pairings? Only because you want to define marriage that way.
To be fair, Sebastian, Merriam-Webster's online edition now defines marriage just that way. (Which means that M-W11, whenever it comes out, will define marriage that way in print.) And M-W isn't the only dictionary to recognise that the definition of marriage has, of necessity, changed. In the Netherlands, a gay couple can get married: in several states in the US and in several other countries in Western Europe, a gay couple can enter a civil partnership that is equivalent to marriage. Therefore, unless you wish to exclude certain geographic areas from your linguistic universe, the dictionary definition of marriage must be written to include same-gender pairings - simply because both the concept of marriage, and therefore the language used dealing with it, have changed. Neither language nor social structures are eternal and unchanging.
Posted by: Jesurgislac | October 06, 2004 at 03:41 AM
" Neither language nor social structures are eternal and unchanging."
Of course not, and the proper venue for changes in the law based in changes in social concepts is the legislature. That is what they are for.
Posted by: Sebastian Holsclaw | October 06, 2004 at 03:43 AM
Once upon a time, in a land far far away called Princeton...
Oh good grief, that's why your name sounded so familiar; must've seen it in the PAW or something. Class of '98 here.
Posted by: Anarch | October 06, 2004 at 04:37 AM
Of course not, and the proper venue for changes in the law based in changes in social concepts is the legislature. That is what they are for.
See de Tocquville on why the US legislature is geared to make such changes far more difficult than they reasonably should be, thus effectively putting changes into the realm of the judiciary. Seriously. It was an illuminating read.
In any case, my point was in response to your assertion "Only because you want to define marriage that way." Not so - as M-W's change to the dictionary definition of marriage attests.
Posted by: Jesurgislac | October 06, 2004 at 05:16 AM
Sebastian: we're still arguing about whether or not the meaning of a term includes facts about its extension. And, my discussions with Scalia notwithstanding, on gay marriage my contention is not that the view of rights changed, but that it had seemed too obvious then that gay marriage was wrong for there to (seem to) be a need for a serious explanation of why the state had a rational basis to forbid it, and also that we know more (factual) things about e.g. the effects on children of being raised by a gay couple, effects which in 1780 had to be imagined.
This is not about whining to a court every time I want a change; it's about making (what seems to me to be) a serious argument that forbidding gay marriage is in fact unconstitutional (under the MA constitution).
Anarch: I was only there for that one year, on a fellowship, and also as an undergrad long before you. Great philosophy department.
Posted by: hilzoy | October 06, 2004 at 08:42 AM
"See de Tocquville on why the US legislature is geared to make such changes far more difficult than they reasonably should be, thus effectively putting changes into the realm of the judiciary. Seriously. It was an illuminating read."
Show me the 'thus' I don't remember that.
Hilzoy, you keep mentioning 1780. What does 1780 have to do with the discussion? The Equal Right Amendment in question to the Massachusetts Constitution was adopted in 1976. This isn't an artifact from a bygone era--full of confusing terminology that we have to work unusually hard to understand. This was a debate in modern English taking place in our lifetimes.
Posted by: Sebastian Holsclaw | October 06, 2004 at 11:41 AM
Jesurgislac your appeal to the modern M-W has nothing to do with it. Please note the difference in how this works:
Hilzoy's carcinogen example: the meaning of carcinogen remains unchanged. A quick and dirty definition of it both in historical context and in the modern context is: 'thing which causes cancer'. The change is in our understanding of which things cause cancer. Term meaning-unchanged. List of things included in the term, changed by scientific research.
Marriage: The meaning of marriage historically does not include same sex partners. If it currently does (which I doubt because of the absolute necessity of including 'same-sex' as a prefix), that represents a change in term meaning from lawmakers past. A change in common usage does not change the law. If it did, slang meanings could easily swamp changes into the law which are both undesireable and completely unnecessary. A change in the term meaning is to be enacted by a legislature.
Do you see how in hilzoy's example, the meaning of the word has not changed?
Posted by: Sebastian Holsclaw | October 06, 2004 at 11:50 AM
A quick and dirty definition of marriage is: "Two or more people living together in a customary union recognised by their society." That meaning has not changed - and is far more universal than the meticulous definition of "one man one woman" which excludes so manay marriages, historically and worldwide.
A change in common usage does not change the law
No, indeed. But it does change the definition of marriage, which is the (trivial) point I was making.
From The American Heritage dictionary (just to ring the changes):
Marriage means:
1.
a. The legal union of a man and woman as husband and wife.
b. The state of being married; wedlock.
c. A common-law marriage.
d. A union between two persons having the customary but usually not the legal force of marriage: a same-sex marriage.
2. A wedding.
3. A close union: “the most successful marriage of beauty and blood in mainstream comics” (Lloyd Rose).
Meaning 1a requires both participants to be of opposite genders. You could argue that 1b and 1c derive from 1a and therefore the implied meaning is hetero marriage only. 1d, however, plainly states that "marriage" can include same-sex couples.
Meanings 2 and 3 do not demand both participants to be of opposite genders.
which I doubt because of the absolute necessity of including 'same-sex' as a prefix
It's no more an "absolute necessity" than it's an "absolute necessity" to refer to "interracial marriage".
Posted by: Jesurgislac | October 06, 2004 at 12:02 PM
Sebastian: I was talking about 1780 because significant chunks of my reading turned on the assertion that government should not infringe our 'essential rights', which is from then.
You write: "The meaning of marriage historically does not include same sex partners." But this is the point I keep coming back to: that's a claim about who can be married, not about what "marriage" means. Obviously, there are some beings who we couldn't imagine being married absent some serious change in the meaning: tin cans, for instance. But why assume that gay couples are among them?
Besides, as I said before, my argument does not turn on the meaning of 'marriage', which (iirc, I am not going to go back and check this now) is not a word that appears in the MA Constitution.
Posted by: hilzoy | October 06, 2004 at 12:05 PM
Jesurgislac, when a dictionary has a definition like: The legal union of a man and woman as husband and wife, that indicates that there is a legal issue to be resolved past the dictionary.
Hilzoy, you write: "Besides, as I said before, my argument does not turn on the meaning of 'marriage', which (iirc, I am not going to go back and check this now) is not a word that appears in the MA Constitution."
Correct. It turns on the meaning of the 1976 amendment which reads in total:
One of the arguments against the Massachusetts ERA in 1976 was that many conservatives were worried it could legalize gay marriage. They were roundly condemned as scare-mongers, indicating that such an interpretation was not considered plausible by proponents of the Massachusetts ERA.
The potential interpretation was specifically raised at the time of ratification, and specifically denied as implausible and not indicated by the amendment by proponents of the amendment.
And that is strongly dispostive in interpreting the amendment--especially because it is centered around a debate that occurred within our lifetimes.
Posted by: Sebastian Holsclaw | October 06, 2004 at 12:30 PM
Sebastian Holsclaw: It isn't the generally accepted understanding of the term marriage to include same sex partners. Evidence for that fact is the need to mention 'same-sex' marriage.
Much like "Women's Suffrage", "Same-Sex Marriage" is a term made necessary by the discriminations of law not because the notion of people of the same sex getting married is culturally meaningless (the inclusion of women in the vote certainly didn't destroy or erode the meaning of the original word). I very much doubt the term will find widespread usage outside a policy context, as couples will simply get "married" and nobody will misunderstand just what that means. "Gay Marriage" won't be printed on many wedding invitations, folks won't go on "same-sex honeymoons". The ones whose marriages fail won't get "same-sex divorces", though I do admit there is a longstanding precedent for "Gay Divorcees".
Posted by: Gromit | October 06, 2004 at 01:13 PM
And exactly like Women's Suffrage, change requires legislative or constitutional change. Thanks for making my point.
Posted by: Sebastian Holsclaw | October 06, 2004 at 01:21 PM
Sebastian Holsclaw: And exactly like Women's Suffrage, change requires legislative or constitutional change. Thanks for making my point.
Yeah, just like "Interracial Marriage" or "Integrated Schools" neither of which was decided in the courts, right? It's a good thing you don't need to cherry-pick examples to support your argument.
Of course the amendment process is a perfectly valid method for social change, it just isn't the only valid method. If you want to convince folks otherwise, you'll have to do better than to simply point to examples of changes that you support that were made by Amendment, and address why you don't support changes made through the courts, as the Brown and Loving decisions were.
And are you unwilling to address my actual point, that "Same-Sex" is a policy distinction, not semantic proof that marriage between same-sex partners is inconceivable under our current cultural understanding of the institution?
Posted by: Gromit | October 06, 2004 at 02:19 PM
Actually the inter-racial marriage and integrated schools things came from the civil war amendments. Which explicitly have to do with race therefore you are making my point yet a third time.
Thanks for being on my side. I don't pay well though.
"And are you unwilling to address my actual point, that "Same-Sex" is a policy distinction, not semantic proof that marriage between same-sex partners is inconceivable under our current cultural understanding of the institution?"
Yup, it is a policy decision. Policy decision making authority is given to the legislature and some of it to the administration. Policy decision making is not a power given to the court.
So you agree with me again.
And what is this 'inconceivable' thing? I didn't say it was inconceivable. I am in fact discussing it, which suggests I can conceive of it. In fact I support same sex marriages. I also support the Constitutional order of our country. Which means I support legislatures making the decision.
I have never argued that the Courts have NO role. I have never argued that Courts are not empowered to vindicate Constitutional rights. I argue that they do not have the right to make changes which are in direct contradiction with the meaning of the clauses in question. In fact they are not empowered to make any changes except those which are in direct conformance with the clauses in question.
Posted by: Sebastian Holsclaw | October 06, 2004 at 04:46 PM
BTW, I suspect that accusing me of 'cherry-picking' examples when I merely use the ones that you bring forward is a slight misinterpretation of the phrase.
Posted by: Sebastian Holsclaw | October 06, 2004 at 04:48 PM
Sebastian Holsclaw: Actually the inter-racial marriage and integrated schools things came from the civil war amendments. Which explicitly have to do with race therefore you are making my point yet a third time.
...
I have never argued that the Courts have NO role. I have never argued that Courts are not empowered to vindicate Constitutional rights. I argue that they do not have the right to make changes which are in direct contradiction with the meaning of the clauses in question. In fact they are not empowered to make any changes except those which are in direct conformance with the clauses in question.
First, please stop pretending I'm making your points for you in order to avoid directly addressing my original argument. I think you are better than that.
Now, lets look at the things you have actually said:
You appear to have difficulty saying the C word in anything but a negative context. The way you tell it, these cases were decided by the amendment process, and no action on the part of the courts was needed to correct the failures of the legislature! That must be some consolation to the millions of victims of Jim Crow. It is one thing to argue that the decisions the courts make are wrong, which you do seem to be engaging elsewhere, but this argument that the courts are not a proper venue for these cases seeks to undermine the very structure of our government.
Yup, it is a policy decision. Policy decision making authority is given to the legislature and some of it to the administration. Policy decision making is not a power given to the court.
You are still ignoring the semantic discussion exclusively in favor of complaining about venue (which I never mentioned in my original comment, it is worth noting). Why don't you feel like answering my point? Can you?
BTW, I suspect that accusing me of 'cherry-picking' examples when I merely use the ones that you bring forward is a slight misinterpretation of the phrase.
You are cherry-picking because while I freely acknowledge that both the courts and the legislatures have a role (as does the executive branch), you habitually turn a blind eye to the role of the courts in bringing about social change. You pounce on "Women's Suffrage" as if it argues against some point you imagine I have made, when all it argues against is your assertion that the need for the phrase "Same-Sex Marriage" proves that marriage is for heterosexual couples only.
Posted by: Gromit | October 07, 2004 at 10:55 AM