When they came for me...

Andrew Sullivan (who doesn't have a comments function on his blog) has been posting letters from folks alarmed by the President's announcement about the FMA. This one from a Republican Lawyer suggests there's a much larger objective than stopping gay marriage behind it.

Pertinent paragraphs:

Under the Constitution of the United States there is no express right to privacy, rather this right to be free from excessive government interference in our personal lives has arisen from Supreme Court precedent that cites the lack of regulation of intimate relationships and the protections of the bill of rights as the basis for an inference of the right to privacy. The right to privacy, according the Supreme Court is found in the penumbras and emanations of these two factors. A shadow of a right, very delicate and now threatened.

By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed. As a result, decisions like Roe v. Wade, (Abortion), Griswold v. Connecticut (Birth Control), Lawrence v. Texas (Private Sexual Acts), will all be fair game for re-analysis under this new jurisprudential regime as the Constitutional foundation for those decisions will have been altered. A brilliant strategy really, with one amendment the religious right could wipe out access to birth control, abortion, and even non-procreative sex (as Senator Santorum so eagerly wants to do).

This debate isn’t only about federalism, it’s about the reversal of two hundred years of liberal democracy that respects individuals.

So you legal minds out there, I ask you: Is this Republican Lawyer loosing sleep over nothing, or is this a real threat to all Americans?

Comments

[Timmy the Wonder Dog]

Edward, it sounds to me that you don't believe that same sex Marriage is an issue to be handled either by the states or the Congress but a matter that belongs squarley in the Federal Courts. (The Al Sharpton position from last night's debates.)

Now, if you disagree with that position, what alternatives does one have?

[fabius]

Andrew Sullivan can be so shrill, sometimes. His fears, and those of the reputedly Republican attorney (if he were a Dem he'd be a lawyer), could only be realized if there were activist conservative justices. We don't have any of those, do we?

[praktike]

Ah, "loose sleep." Maybe that's the real problem.

[Edward]

Timmy,

I've said I believe a state-by-state legislative process is the best way to debate this, not the courts, and not civil disobedience, but I think the pre-emptive DOMA laws need to be challenged as well, because I (not a lawyer admittedly) believe they violate gay Americans' civil rights (at least the spirit of America's belief in civil rights, if not the letter of the law at this point in time).

I know they are cruel and inhuman.

Folks who say, "I'm sorry, the people have spoken, DOMA passwed, you gays just go back to your closets and stop flaunting your lifestyles in our faces" are also cruel and inhuman to my mind.

But, I'm asking a different question in this post...does the FMA present a larger threat to all Americans????

[fabius]

Edward, it sounds to me that you don't believe that same sex Marriage is an issue to be handled either by the states or the Congress but a matter that belongs squarley in the Federal Courts.

Timmy, this sentance don't maka no sense (I'm not saying that any of mine do). Are you claiming that courts should have no power of judicial review? That states and Congress need not pass laws consistent with the constitution? If states and Congress are restricted by the Constitution would would be the, er, judge if not the Federal Courts?

I have no right to make this following comment in that my correctly spelled to incorrectly spelled words ratio breaks some kinda record for futility but that's a squirrelly way to spell squarely.

[Timmy the Wonder Dog]

Fabius, hidden meanings in my spelling or am I just being cynical or is it just the dog is a poor speller. I will let you decide.

On judicial reveiw as compared to legislation by the bench (you write new laws because your secret decoder ring found new rights in the constitution or a new responsibility for SOTUS) a very thin thread; the latest example of legislation by the bench was Gore v Bush both at the state and federal levels. Now if you don't find that abwhorent, because your guy won well there is no point in going on.

Are you claiming that courts should have no power of judicial review?

fabius, absolutely not, the court always have the ability to review any law or previous decision. There are absolutely no constraints on the power of judicial review. But, is it disingenuous to be talking about state rights on a subject, when it is really your intention to walk it through the courts all along. Kerry's current position is DOMA is unconstitutional but states should decide the status of marriage. There is a disconnect in that position IMO.

Edwards is opposed to FMA because it precludes judicial review. I'm opposed to FMA because I believe in Federalism.

But I am not opposed to a Constitutional Amendment to keep the decision on marriage out of the Federal Courts or more precisely I'm not opposed to an Amendment which constrains the courts, simply reflects my position on legislation by the bench and gives all the black robes an issue to ponder.

[bob mcmanus]

To your larger question, Edward, I read the e-mail carefully and believe the writer has a point: the "penumbra" would lose a little ectoplasm, would become less substantial.

But Scalia doesn't believe it exists at all, and I am not sure to what extent justices are compelled to their decisions by the text and to what extent they use the text to justify their positions.

I would like Volokh to discuss, but doubt he would have a definitive answer, or one that would satisfy you. It is always more politics than legal theorey, anyway.

[Harley]

If Edward and I take Scalia duck hunting can we change his mind? Works for everybody else.

[Edward]

If Edward and I take Scalia duck hunting can we change his mind?

LOL

I think Snipe Hunting is probably more appropriate for Scalia though.

[Fredrik Nyman]

I, too, would have preferred to have this debated in the state legislatures.

But we don't have that choice anymore.

Four justices in Boston have ruled, and mandated gay marriages not just for Massachusetts, but for the entire nation*.

I agree with that outcome - I'm support gay marriages - but not with the process. It strikes me as deeply wrong to let four state justices dictate policy for the whole nation.

What am I to do?

* I assume that subsequent court decisions will 1) rule that the Full Faith and Credit clause applies, and 2) strike down the DOMA.

[Edward]

Four justices in Boston have ruled, and mandated gay marriages not just for Massachusetts, but for the entire nation*.

Those judges are getting a prett bad rap, if you ask me. As I understand it, all they did was say the couple challenging the state's refusal to grant them a license was right. That under current Massachusetts law, that denial is illegal.

How that makes them "activists" is really beyond me. They didn't ask the couple to challenge the law. Suggesting they should have taken any action other than what they did is to suggest they should have purposely lied.

[rilkefan]

Fredrik, the MA licenses explicitly say, Not valid in states that don't recognize gay marriage.
And there is a large body of precedence that FFC doesn't apply in this area.

Anyway, I really don't understand your argument. How about the common "What about miscegenation laws" response?

[Paul Cella]

This debate isn’t only about federalism, it’s about the reversal of two hundred years of liberal democracy that respects individuals.

Two hundred years? The cases he adduces date from the 1960s.

Edwards is opposed to FMA because it precludes judicial review. I'm opposed to FMA because I believe in Federalism.

I support the FMA because I am a (small r) republican, and I believe that the "deliberate sense of the community," as the Federalist has it, should govern this country; or, as Lincoln had it, that government by the people "shall not perish from this earth." This is not the same as simple crude majoritarianism. Nay, the "deliberate sense" is a far higher bar for action, and it is embodied most authoritatively and most solemnly in the Constitutional amendment process, which requires and insures that a commanding consensus of We the People sign onto this, and that even this consensus is able to carry along in acquiescence the "waverers" who have their doubts.

But I will insist, to my dying breath, that a question so huge and important, which drives at the very definition of ourselves as one people, must be debated, argued, weighed, and finally adjudicated through the representatives of We the People.

No matter how dear to the sentiment and intellect of some of us this question of marriage "rights" really is; no matter how much we reach to claim the sacred mantle of Civil Rights; no matter how deep our suspicions about our oppoents -- no matter all these things, this question cannot be answered by a court if we still fancy ourselves a Republic.

What we have before us again is the American Question: is self-government possible? To allow five judges somewhere to decide this for is to answer the question in the negative.

[bob mcmanus]

In line with Paul's comment, as I understand it, I would ask if 'Brown' has "decided" the question of school integration. Certainly de jure segregation is settled, but the practical consequences of court intervention remain with us fifty years later. I have no confidence legislatures would have any more satisfying.

For that matter, the 14th and 15th for me, lack full legitimacy, being enacted under less than free circumstances.

[rilkefan]

Mr. Cella, if I understand you, you want us to carefully mull over the question of whether gays deserve the right to marry, while at the same time you want us to write into our basic law their second-class citizenship? I don't see how your view is supportable when considering its consequence re Loving.

And your "five judges" point is just wrong - see above.

Anyway, the sense of the community, expressed by our Senate, is that the FMA shouldn't be passed, so the question's moot.

[Paul Cella]

The 1964 Civil Rights Act, whatever its flaws, was an immeasurably superior achievement of statesmanship and political philosophy than was the Brown decision, the latter of which, in contrast to the former, inflamed and polarized opinion, and embittered opponents profoundly, and nearly rent the country asunder. The Civil Rights Acts was a grand and inspiring example of republican self-government.

[Navy Davy]

Per the ">http://www.boston.com/news/politics/president/articles/2004/02/26/kerry_backs_state_ban_on_gay_marriage/"> Boston Globe , Kerry supports a State Constitutional Amendment to ban gay marriage in Mass.

For weeks now, we have heard nothing but hysterical invective againt President Bush, and folks who think men marrying men might not be a great idea for society as whole, and that the laws are getting steamrolled in the process.

Yet, we hear nothing directed at Kerry. Silence.

Ain't this hypocrisy of the highest order by the pro-gay marriage crowd?

Why does Kerry support a gay ban in his state?

[rilkefan]

bob, I hope you reject all the amendments before the 14th/15th on those grounds, and anything before the 19th, and anything before 1965 for that matter.

[Sebastian Holsclaw]

"I assume that subsequent court decisions will 1) rule that the Full Faith and Credit clause applies, and 2) strike down the DOMA."

The only case where full faith and credit clause re: marriage was applied was for mixed race marriages. With respect to cousin marriages or age of consent marriages, a state has always been able to ignore the rules of other states on this issue.

That said, the defense of the MA court is wrong. It pretty clearly made up a new right by deliberately misreading the ERA.

[Timmy the Wonder Dog]

I would ask if 'Brown' has "decided" the question of school integration.

No, but it put to rest the concept of "separate but equal", bob. That is, it accomplished what it was set out to achieve.

[Edward]

Yet, we hear nothing directed at Kerry. Silence.

You conveniently left out that Kerry insists the MA "amendment must provide for civil unions," Navy.

That's the difference. Bush's approach is to leave gays with no legal recourse. Kerry at least acknowledges that gays too are Americans with families and insists they must have rights before he'd support a ban on "marriages."

Nice try though.

[Edward]

It pretty clearly made up a new right by deliberately misreading the ERA.

Deliberately? Care to back that up?

[bob mcmanus]

"bob, I hope you reject all the amendments before the 14th/15th on those grounds, and anything before the 19th, and anything before 1965 for that matter."

No, of course not. But the post-civil war amendments were enacted under particular circumstances in which I do not believe the Southern states had fair representation. Like occupation. It is really not important anymore, and I accept the amendments.

[rilkefan]

oops, "reject" is the wrong word.

ND, please inform yourself a bit about the facts before accusing people of hypocrisy - I'm doing my best not to ask if you and others on the other side are homophobes and bigots of the highest order. Plenty of Dems are angry at Kerry. Take a look at Kos's website - grep on "the Hate Amendment". (Others [fairly, in my view] note that Kerry said he'd go along with an amendment that would give equal civil rights to gays and lesbians by means of civil unions. You're distorting where Kerry stands.) Atrios calls the position of the Herseth campaign "offensive and legal gibberish" though she favors a federal solution.

I'm not thrilled with Kerry, but Bush makes him look like the next Lincoln.

[Navy Davy]

Edward,

Utter and absolute baloney of the highest order. You've already admitted jumping the gun yesterday, and now you've done it again today.

In California, and in San Francisco, civil unions are the law. Period. I have heard precious little criticism of civil unions across the country. Obviously, that is the wave of the future, as long as people (not judges)enact them into law.

More so, the Mass Supreme Court REJECTED the notion of civil unions, thus, forcing the folks in Mass to entertain the amendment process.

The Kerry caveat --"no gay marriage, yes civil union" is probably the position of 75% of the Congress and country. That is exactly what the FMA provides -- no gay marriage, states free to have civil unions or not.

So, to hate the FMA, but support Kerry's position is intellectual dishonesty writ large.

[bob mcmanus]

I don't really understand a problem with local control, state or municipal, of the gay marriage issue.

Unless it is legally untenable,

or unless the idea of Federal Benefits (which would be inevitable) going to gay marriages in California, based on California law, would be utterly unacceptable to citizens of Alabama. It would be their tax dollars.

[Navy Davy]

Rikefan,

I know the facts.

Now try answering the question,

Is Kerry an ogre for opposing gay marriage or not?

I'm not thrilled with Kerry, but Bush makes him look like the next Lincoln.

This is foolish. Kerry is an unprincipled waffler on nearly every important issue of the day, including gay marriage.

[Edward]

Arggh. You can expect me to keep it to myself from this point on if I realize I'm wrong on a subject, Navy, if it's only going to lead you to try and use it silence me when I'm actually right.

Equating Kerry's position with Bush's is "intellectual dishonesty writ large" and I suspect you know it.

Kerry's position differs in its chronology. Civil Unions in Mass. MUST BE PART OF THE COMPROMISE BEFORE he'll support a ban on gay marriage. It's a very important distinction from Bush's stance which boils down to "if gay marriage proponents can over come the DOMA acts in their home states, so be it."

Of course, that's only the most optimistic inference one can conclude from his comments. He won't come right out and say he supports Civil Unions, and many believe his supposedly approved Amendment choice would make them illegal anyway.

Bush is ambivalent at best about gay rights. Kerry is clearly supportive, if not 100% in sync with those who feel as I do.

[bob mcmanus]

"That is exactly what the FMA provides -- no gay marriage, states free to have civil unions or not."

This is matter for vigorous dispute. I trust Gene Volokh on this, and he says FMA essentially destroys civil unions. Or more accurately, the most common public version of the FMA, as it exists now.

[Fredrik Nyman]

Edward and riike,

I am saving the debate about the merits of the Mass. judges' decision for another day.

What bothers me is that the Mass. judges' decision is going to become the law of the whole nation. This is a bad precedent; a state court should not be able to make law for the entire nation.

Yet, this is where we are heading now, and I see no reason to think it will stop with gay marriage. Surely you too can think of bad laws that state supreme courts could impose on the whole nation through the FF&C clause.

[Edward]

Surely you too can think of bad laws that state supreme courts could impose on the whole nation through the FF&C clause.

Legislation that permits gay marriage would not be a "bad" law, Fredrik. It would be a very good law.

[fabius]

I suppose we were all waiting on you, Navy Davy, to take up the cudgel against Kerry. Plenty of other blogs have criticized Kerry's position but I have defended it. He has said he would support an ammendment against gay marriage if it allowed for civil unions. I think he's drawing a semantical difference that won't make any difference in practice. I'm willing to pretend along with him in an effort to get civil unions formally recognized. Yet this trying to have it both ways is one of the things Kerry gets slammed for. Doesn't bother me. But I'm not of your moral universe.

[Edward]

Make that "if gay civil union proponents can over come the DOMA acts in their home states, so be it." Don't want to suggest Bush supports gay marriage.

[Navy Davy]

Kerry's position differs in its chronology. Civil Unions in Mass. MUST BE PART OF THE COMPROMISE BEFORE he'll support a ban on gay marriage. It's a very important distinction....

That was already the law in California, when, Mayor Gavin Newsome, your hero, repeatedly violated it much to your delight. Remember that --the Rosa Parks of the west coast! Heh.

We're at an impasse here, so I'll pipe down.

But, Eddie, please save this post. If Bush wins in 2004, it will be because of the type of total disregard for legal process and intellectual discernment exhibited by folks you support.

McManus,

I don't think the FMA should and will ban civil unions in the states. That's clearly for the states to decide. If Volokh says it will, then it should be changed.

[Timmy the Wonder Dog]

On Kerry and same sex marriage, is he opposed to it because of the 5,000 year tradition of marriage or does he oppose because it is political inconvenient today.

[Timmy the Wonder Dog]

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any State shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Navy Volokh's language for an amendment.

[rilkefan]

ND, if you know the facts (and hence your "silence" quip was something on the order of a lie), then you know that there is a broad spectrum on the left from "the state should get out of the marriage business entirely and issue civil unions to paired adults" to "marriage comes from God but gays should have the right to civil unions" to "let the locals fight over this" to "denying gays the right to marry is homophobia" to "I'm against gay marriage but gays should have the right to marry on equal protection grounds" to "it's clear what's right and time will bring it to us", and disagreement about what parts of the above are inconsistent (I hold most of the non-religious ones, mostly). I don't think Kerry's an ogre because he opposes gay marriage (in America today) - I think he's a Catholic.

For comparison, I do think pro-death-penalty xians are ogres, and that Bush is more likely to end up in Hell on those grounds than these.

[Navy Davy]

Timmy,

Oh, I dunno, I've nevvvvvvvvvvvver heard him succumb to political incovenience:)

Fabius,

I'm willing to pretend along with him in an effort to get civil unions formally recognized

I don't understand what you are pretending. Some states like Vermont and California have civil unions, some don't. Some like NY may enact such, some like Georgia won't.

Kerry does not support gay marriage.
Bush does not support gay marriage.

Any explanation to the "assymetrical" outrage, is much appreciated. :)

[rilkefan]

Timmy, that's Musgrave's amendment. I thought Volokh showed this amendment would forbid civil unions. Actually I've read it would forbid all marriages.

[carpeicthus]

Thank God it won't get passed. I'm really interested in how new findings can be interpreted retroactively, such as whether the limitations on the commerce clause in the Supreme Court's VAWA case could retroactively weaken civil rights legislation. In the end, it's probably all up to the political inclination of the judge. It's interesting, though, that it would seem to be the Scalia end of the court that's most likely to take a dim view of the right to privacy, even though you'd have to be a strict legal positivist to not acknowledge it, and his broader ideological underpinnings give strong weight to natural law.

[Navy Davy]

Thanks, Timmy:

Marriage in the United States shall consist only of the union of a man and a woman.

Shorter: No bigamy, no gay marriage in America.

Neither this Constitution nor the constitution of any State shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups

Shorter: States are not REQUIRED to enact civil unions by 14th Amend or anything in their respective state Constitutions.

My read: Civil unions permitted; not required or banned. (Any ambiguity on this matter could easily be fixed.)

But, Volokh is smarter than me -- on certain issues:) So, what he says normally goes.

Rikefan,

You're all over the map.

[Edward]

Navy,

California does not have a Civil Unions law, it has a Domestic Partnership law. As you know, I'm sure, AB 1338 died in assembly.

And even the Domestic Partnership law (while a step in the right direction) re-inforces inequalities that straight Californians don't have to deal with. Among other disparities, it does nothing to help gay couples in which one is not a US citizen.

If Bush wins in 2004, it will be because of the type of total disregard for legal process and intellectual discernment exhibited by folks you support.

Knock off the hyperbole, will ya. "Total" disregard? Puh-leaze. The mayor of SF believes he has a case. If it turns out he doesn't he'll comply with what's decided. But his example will reverberate the same way Ms. Parks' did. When it comes to human rights, the more courageous the better, IMO.

[Navy Davy]

Eddie,

Ok -- you got the last word. Till we duel again:)

[rilkefan]

"You're all over the map."

There's what's right, there's what's moral (for the religious out there), there's what's legal, there's what's practical, there's what's politcally useful.

My core position is that the govt should (nay, is required to) treat gay couples like straight couples. I think it would be nice if the state dropped the word "marriage", with its religious overtones, but I know that would upset my (nonreligious) girlfriend. I certainly don't want this non-emergency wedge issue to distract voters from Bush's uniquely awful record.

The demonstration that Volokh's right and you're wrong is simple: people proposed unambiguous versions of the amendment and they were shot down.

[Fredrik Nyman]

Edward,

I've already stipulated that gay marriage is a good thing.

I am, however, disputing that it is a good thing to have to let four justices in the Mass. Supreme Court make law for the entire nation.

I am also suggesting that if we allow that, then it's only a matter of time before other state supreme courts will similarly legislate for the entire nation, and it may well be legislation you and a majority strongly opposes.

[Edward]

I am also suggesting that if we allow that, then it's only a matter of time before other state supreme courts will similarly legislate for the entire nation, and it may well be legislation you and a majority strongly opposes.

I kind of figured that's what you meant after I posted the comment Fredrik, and meant to follow up and say so. Excuse the misinterpretation please.

I'm still not convinced of the "four justices in the Mass. Supreme Court make law for the entire nation" line or reasoning, however. It implies that those justices, despite believing Mass law must be interpreted the way they did, should have ruled otherwise because of flaws (or perceived flaws, I'd argue) in the federal laws.

It suggests they should have lied.

Their hands were tied, I believe. The fact that some disagree with the outcome of their decision doesn't mean they did anything that even approximates trying to legislate for other states. The "activist" label is rightwing b.s., and if I were one of those judges I'd consider suing Bush for slander.

[rilkefan]

A nice overview of the issues from Slate.

Fredrik, could you address my dispute (at 12:35 above) with your premise?

[Timmy the Wonder Dog]

The "activist" label is rightwing b.s., and if I were one of those judges I'd consider suing Bush for slander.

Apparently, you didn't read the minority opinion.

[Paul Cella]

Edward:

As one blogger summarizes it:

-The Court repeats its belief that "no rational reason" exists to support the traditional definition of marriage alone, and that laws in favor of limiting marriage to its traditional definition are rooted in "prejudice."

-The Court says, not once but twice, that traditional marriage is "invidious discrimination."

-Civil unions are an unacceptable answer for the Court, because they "assign... second class status," short of full marriage.

-When it comes to traditional marriage laws, the Court claims that "no amount of tinkering with language will eradicate that stain."

-The Court opines that "If ... the Legislature were to jettison the term "marriage" altogether, it might well be rational and permissible."

-The Court heavily implies that "personal residual prejudice against same-sex couples" is the only possible reasoning behind traditional marriage laws, that "enshrine in law an invidious discrimination."

-The Court acknowledges that yes, they have heard of DOMA: "We are well aware that current Federal law prohibits recognition by the Federal government of the validity of same-sex marriages legally entered into in any State, and that it permits other States to refuse to recognize the validity of such marriages." But no matter, because "Courts define what is constitutionally permissible."

The label "activist" is quite mild. "Despot" or "tyrant" is closer.

[Fredrik Nyman]

I'll stipulate that the Mass. SC's majority's hands were indeed tied. Again, we don't really need to debate that decision.

What I'm trying to get to is that it is a bad thing when a state SC's interpretation of the state constitution results in the state SC setting nationwide policy through the FF&C, since it 1) is an end run against the legislative process, 2) violates the concept of "consent of the governed", and 3) invites all kinds of future mischief by the state judiciaries.

I'd rather not walk down that path.

[Edward]

It's only "activist" if you happen to believe they're wrong Paul. In each of those items I see only obvious reason, not activism. I do see a bit of activism in the assertion that "The Court heavily implies...." however.

Got a link for the minority opinion Timmy?

[Edward]

Fredrik, you should exchange ideas with Timmy the Wonder Dog...I think you're both on the same page here, and possibly you could find a way short of chiseling discrimination into the Constitution to prevent what one state says is an honest interpretation of its laws from affecting all other states.

Personally, I think this is a human rights issue and is exactly what they had in mind when they came up with FF&C, so I support it in this particular case.

[Skip Perry]

I am, however, disputing that it is a good thing to have to let four justices in the Mass. Supreme Court make law for the entire nation.

That's just not what's going to happen...Massachusetts' constitution expressly holds that marriages performed in MA aren't transferrable to other states.

[Fredrik Nyman]

rilkefan -- I'm not disputing your dispute. :-)

My argument rests on the assumption that the courts will strike down any attempts to limit the ruling to Massachusetts. If I'm wrong, then the rest of my argument is moot.

(Incidentally, I think this is the correct way for the courts to rule. I just don't see how any court could come up with a way to say that you're legally married in Mass., but once you leave the state, your marriage becomes null and void?!)
If this assumption is wrong, then

[Timmy the Wonder Dog]

Got a link for the minority opinion Timmy?

Sorry, Edward I read a hard copy when I was in Boston a couple of weeks ago. Sorry.

[Edward]

Thanks anyway, Timmy...I've been searching for half an hour now...Do you know the name of the case at least? None of the main news reports I've round have it.

[Fredrik Nyman]

The Goodridge decision is here.

[Edward]

many thanks, Fredrik...

[crionna]

but once you leave the state, your marriage becomes null and void?!)

Maybe to the states, but not to my wife, my God and I. And that's all that matters..to me, until I need to visit her in a hospital, apply for a loan or collect SS.

Fredrik's got a point though. Shouldn't FF&C allow me to sue California to allow me to drive my 49-state auto there without paying to have it smogged to meet CA emmisions???

[Josh]

Shouldn't FF&C allow me to sue California to allow me to drive my 49-state auto there without paying to have it smogged to meet CA emmisions???

In fact, this is precisely the case. You never had to have your 49-state car upgraded with CA-compliant emissions equipment, but CA used to impose a $300 smog impact fee on people registering 49-state cars in CA. That was struck down a few years ago, and now anyone who had to pay the smog impact fee can apply for a refund.

[Edward]

Timmy,

The dissenting opinion is built around the assertion that there's no inequality because gay people in Massachusetts are free to marry someone of the opposite sex. (Which lands them squarely in my anti-sanctity construct...which, yes, we know Paul, you think is rubbish)...

But this is where the conservative argument really begins to piss me off. It's an evil argument because it tries to have it both ways at a minority's expense.

this is best explained in dramatization...

I see one of these dissenting judges at their daughter's wedding reception. The music is playing. All around them their loved ones in tuxedos and elegant gowns are dancing, and laughing, and truly celebrating the joyous event, their joy stemming from the belief that these two young people are entering a lasting union of loving and supporting each other, it's really quite emotional and beautiful. And their whole extended family is there to support them...and they'll be there as time passes. And not just their extended family...the whole State and Nation will be forced to recognize what they've done here this day....The judge watches his daughter dance with her groom, and his heart swells to nearly bursting with happiness and pride...

.... and then SCREEECH...the DJ drags the needle across the album. The crowd turns in unison, silent.

The judge is asked his opinion on gay love. Real love, not just sex...two women, who've been together for years, committing to each other, legally, for life, in order to support each other until death do them part...

...and this judge responds, "There's nothing stopping them from marrying someone of the opposite sex."

The music resumes, the party continues, the hypocrisy hopefully chokes that judge where he stands...

It's grotesque...and that judge needs to know it.

[Fredrik Nyman]

Note: this is something of an aside.

Right now, the baseline argument seems to be that there exists an implicit right for consenting adults to marry, and that this right should apply regardless of the parties' gender and sexual orientation, just as it applies regardless to their skin color.

Assuming that we frame the discussion in these terms of civil rights, how do we bound these right? Is there any meaningful way to do so? Do we want to?

Could, for example, bans on incestuous marriages and polygamy survive if we've created a de facto civil right for consenting adults to marry?

And who gets to decide that? The Arkansas and Utah state Supreme Courts?

[Timmy the Wonder Dog]

The dissenting opinion is built around the assertion that there's no inequality because gay people in Massachusetts are free to marry someone of the opposite sex.

Well Eddie, the statement is true. And the other four juges are activists which you appear to disagree with and wanted to sue the President. The issue is about moral equivalence, not anti-sanctity.

Simply put, I say let the people decide.

[Timmy the Wonder Dog]

Could, for example, bans on incestuous marriages and polygamy survive if we've created a de facto civil right for consenting adults to marry?

I don't see why not. But the better arguement (the libertarian arguement) is why have the institution at all. Why should government play any role between or amongst consenting adults?

Now, if you can answer that question, we have the start of a real debate.

[Fredrik Nyman]

Assertion 1:
Families are the fundamental building block for society.

Assertion 2:
The rule of law is a necessity for a modern society to function.

From these assertions, I would argue that it follows that family law is very important to society; since it embodies central rights and obligations that just about everyone in society has to one extent or other.

We could certainly get the government out of the family business and go all libertarian, but this is problematic. For one thing, you'd have to draw up detailed contracts between the parties just to handle joint property rights (in the case of divorce, death, or the addition of additional adults to the family unit). This would greatly increase the transaction cost. Next, you'd have to solve the problem of children who can't enter contracts, but who are affected by them. (Who decides what rights a child has towards whom in a 4-way marriage in a world with no family law, only contracts?)

I'm rather skeptical that libertarians have the best answer here.

[rilkefan]

My (non-lawyerly) interpretation of the legal opinion I've seen says the slippery slope argument (originally raised in this area by people who read the Bible to indicate that whites and blacks getting married was sinful) does not extend to polygamy - it's seen as a different kind of contract. And in any case, the courts would want to see a body of evidence that there are stable fruitful polygamous relationships - lots of them.

As to incest, I suspect the real harms to possible issue of marriages will make it difficult for the vast numbers of incestuous couples ever to get hitched. Plus at the moment the mainstream view among scientists is that the aversion to incest (among children raised together) is natural and that the inclination is not healthy. If that should change, I'll start supporting incestuous marriages.

Though for Timmy's sake consider the following question: there are people who know they are carriers of hereditary defects guaranteed to result in horrible death to any children with two copies of the gene. Should these people be allowed to intermarry? The harms in this case are worse than in the incest case.

And once again, the FFC thing is a red herring. It would be like me arguing the danger that gays will secretly take over the courts and legislatures and decide that _only_ gay marriage is allowed, hence we should write equal rights into our basic law. There's no reason to fool with the constitution now, esp. not over some 2000-year-old superstition.

[Timmy the Wonder Dog]

Frederik, are you saying marriage is all about the children?

[Timmy the Wonder Dog]

rilkedud, we are talking about adults here. Are there laws on the books on either situation regarding sex between consenting adults?

[Fredrik Nyman]

Timmy --

No, I am arguing that child-related issues currently covered by family law are very difficult to handle in a libertarian universe, especially if a unforeseen, not-contracted event occurs.

Consider a 4-way marriage resulting in an unexpected pregnancy. Absent ridiculously detailed contracts signed in advance, what obligations would the four partners have towards the resulting offspring? Would they, for example, all have to provide for the offspring regardless of who impregnated whom, and regardless of the non-baby-producing parties insistence that they entered the marriage not to have children? How do you handle custody and visitation rights?

If you like, we can leave children aside; I'm sure I can think of common, adult family-related issues that is covered by family law now, but which would be very difficult to handle in a libertarian world with contract but without family law.

[rilkefan]

"rilkedud"?

I believe adult incest is a crime in most or all states, but the law is rarely enforced and laxly punished. The laws concerning child abuse - that is, interfamily incest - and incest generally are a bit messily intertwined sometimes.

Historically the state has tried to prevent "mental defectives" from bearing children or intermarrying. I think everybody finds such laws repugnant - I think they went out with the bad name the eugenics movement got from the Nazis et al. Quite why I don't find laws against incestuous marriage repugnant escapes me at the moment.

I haven't heard of any rules on the books infringing the rights of people with Huntington's Chorea (an awful disease caused by a dominant allele) to have children, or laws against people with other genetic maladies.

[crionna]

I haven't heard of any rules on the books infringing the rights of people with Huntington's Chorea (an awful disease caused by a dominant allele) to have children, or laws against people with other genetic maladies.

At least not until universal healthcare comes around...

[sidereal]

I suspect Andrew of manufacturing letters (or people feeding him by manufacturing letters for him) frequently, and I'm not going to stop just because it's an issue I agree with him on.

[EdSez]

Whatever the legalities, politically there is no real threat that abortion will be outlawed.
If a Republican court does so, there will be so many Democrats elected that not only will abortion be legalized by Congress, but also the Republican Party in its current form could cease to exist.

[Jesurgislac]

TtWD: Simply put, I say let the people decide.

Simply put, Timmy, I think the people affected have made their decision clear: they're lining up in San Francisco to get married.

Paul Cella: But I will insist, to my dying breath, that a question so huge and important, which drives at the very definition of ourselves as one people, must be debated, argued, weighed, and finally adjudicated through the representatives of We the People.

You're against protecting minority rights, then, and for the "tyranny of the majority"?

[Timmy the Wonder Dog]

Simply put, Timmy, I think the people affected have made their decision clear: they're lining up in San Francisco to get married.

Just the begining of the debate.

[Katherine]

Good post, good question. A new amendment can't help but affect how the old amendments are interpreted, I think, but the right to privacy was so controversial in any case....

Here's my prediction:
Roe v. Wade will probably be overturned if Bush is re-elected. As far as constitutional interpretation goes, this is perfectly reasonable & it is not what scares me about the likelihood of Chief Justice Scalia. I think Griswold survives, because I think Kennedy would uphold Griswold and not Roe--even post marriage amendment--I think there would be a backlash after Roe is overturned to prevent the appointment of another really conservative justice.

But it's possible that the marriage amendment could be the straw that breaks Griswold's back.

I think some states would outlaw abortion. One thing to bear in mind: in states where abortion is likely to be outlawed, it can be almost impossible to get an abortion now anyway, even though it is legal. An astonishing % of doctors who perform abortions are over 60--they remember before Roe and see the question as "will she have a legal or illegal abortion" whereas younger doctors see it as "will I perform an abortion or not". And abortion clinics are heavily concentrated in areas where abortion would not be outlawed. It might make less difference on the ground than you think.

(Of course I'm leaving aside RU-486....but you could have a similar dynamic there as far as which pharmacies, hospitals and doctors offices would stock the drug.)

I think you'll see some states outlaw the morning after pill. No idea how my hypothetical future court would come down on that one.

Would outlawing birth control be politically feasible in any state? That, I don't know. I tend to doubt it, but I am totally and completely out of touch with "red" America.

Congress could get into the act by enacting laws under the commerce power making it illegal to cross state lines for abortions, the morning after pill, birth control, etc.

The law would be the first constitutional indication that there's a Federal power to regulate families, but there's no express delegation of power to Congress, so it might not be interpreted to apply except to gay marriage.

I wonder if it might be interpreted to partially amend, or narrow the scope of, the equal protection clause as far as both sexual orientation and gender. That's actually what worries me most about it.

I am taking Constitutional Law this semester, but we haven't gotten to these subjects yet--don't take any of the above as informed legal opinion. I'm just guessing.

[Paul Cella]

Jesurgislac:

I thought I made clear that I am not "for" tyranny of the majority when I rejected the idea of simple majoritarianism. I am a republican, however, and therefore believe that we Americans decide large issues by ultimate recourse to the deliberate sense of the people. Indeed, it is the people who gave judges the authority to interpret law in the first place, and it is the people who retain the power to take that authority (such action might be possible with simple Congressional majorities under Article III, Section 2 of the Constitution). All political authority derives from the people in a republic. Or have we begun to deny this principle?

[Fredrik Nyman]

Katherine,

Why would Roe be overturned? Granted, it is bad law, but SCOTUS is 1) big on stare decisis, and 2) generally supportive of abortion rights.

[Katherine]

Because two of the justices who support Roe are likely to be replaced with justices in the mold of Scalia and Thomas. O'Connor has considered retiring for a while. Stevens is 84 years old. Ginsburg has had health problems.

If two out of three of these retire, Roe will be overturned.

BTW, I was wrong about Kennedy--he voted to uphold Roe in Planned Parenthood v. Casey. But they talked a lot about "stare decisis", and that's a less compelling argument when you're not construing the same Constitution.

After reading this paragraph from the majority in Planned Parenthood v. Casey--I think Sullivan's letter writer may well be right.

"The Court's decisions have afforded constitutional protection to personal decisions relating to marriage, see, e.g., Loving v. Virginia, 388 U.S. 1, procreation, Skinner v. Oklahoma, 316 U.S. 535, family relationships, Prince v. Massachusetts, 321 U.S. 158, child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, and contraception, see, e.g., Griswold v. Connecticut, 381 U.S. 479, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child, Eisenstadt v. Baird, 405 U.S. 438, 453. Roe's central holding properly invoked the reasoning and tradition of these precedents. Pp. 846-853.

(c) Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed."

[Jesurgislac]

All political authority derives from the people in a republic. Or have we begun to deny this principle?

You certainly seem to be doing so, yes. Would you care to explain why you're doing so, since you appear to be claiming that you think this is a bad thing?

[Timmy the Wonder Dog]

You certainly seem to be doing so, yes

The answer is actually no.

[Fredrik Nyman]

Katherine --

I don't think it's reasonable to argue that "when justices X and Y retire, Bush will nominate replacements, and then the SC will overturn Roe".

We don't know who will retire the coming four years. We don't know who Bush would nominate. We don't know if they would survive the inevitable borking. And, most important of all, we don't know how any eventual nominee would rule, nor how the court would align itself.

By the way, do you think Roe is good law (=correctly ruled from a strictly legal perspective)?

[Andrew J. Lazarus]

In fact, this is precisely the case. You never had to have your 49-state car upgraded with CA-compliant emissions equipment, but CA used to impose a $300 smog impact fee on people registering 49-state cars in CA. That was struck down a few years ago, and now anyone who had to pay the smog impact fee can apply for a refund.

Ah, no, Josh, you can't register a car in California if it doesn't meet the stiffer pollution requirements (or is so old it is exempted). The $300 fee was charged to owners of compliant cars bringing them in from another state. It was a revenue generator, not a pollution control, no matter how it was labeled.

However, the impact for the gay marriage discussion is nil, because the Federal air pollution laws specifically allow states to enact and enforce their own stricter regulations.

[Katherine]

"By the way, do you think Roe is good law (=correctly ruled from a strictly legal perspective)?"

Probably not, but I don't know if it's incorrect enough to warrant reversal.

(Less weaselly answer--ask me in a few weeks.)

I will say: if you consider the "right to privacy" in any form completely absurd:
1. Would China's family planning policy, including forced sterilization and/or abortion, be constitutional in the United States?
2. If not, what clause of the constitution prevents Congress from passing such a law?

[Katherine]

Whoops. Should be "a state legislature", not Congress, since Congress doesn't have a general police power.

[Jesurgislac]

Timmy: The answer is actually no.

I wasn't actually asking you, Timmy, but it's nice to know you support gay marriage. ;-) What I'm interested in knowing is why Paul Cella claims to support "we the People" with regard to gay marriage, yet wants to override the clear will of the US people who want gay marriage - as evidenced by the number who travelled hundreds of miles to get to San Francisco to be able to get married.