The Rule of Law? Eh.

This is a post about process.  Boring, I know.  You'd rather be talking about conclusions.  You'd rather be arguing right and wrong.  You'd rather be debating ends, not means.  (God knows I would.) 

But this is a post about process.  Because process -- boring,  banal, bureaucratic process -- is what's really important.  If you want to do this you must do it that way.  No, you may not jump to the head of the line.  Yes, you must fill out the form in triplicate.  Civilization is life measured in coffee spoons; and this is, on the whole, a good thing.

(But it's also why, if you're wondering, civilization makes the artist in us despair.)

I've written on this subject before.  In posts that annoyed nearly everyone, I argued for gay marriage but against finding a "right" to gay marriage in the Constitution.  It is annoying, I agree.  Much better would be for me to simply decree that gays should be allowed to marry and be done with it.  But that's not process; that's not playing by the rules or tradition.  That's making it up as you go along and, when the next guy comes along, who's to say he doesn't make it worse?  So the means matter.  They matter as much as -- and sometimes more than -- the ends.

But I don't come here to fight old fights.  Or to talk about the process being done (or not done) to poor Ms. Schiavo.  I'm here to discuss another abuse of process that is right now happening.  I want to stop the cheering (for there undoubtably will be some) before it begins.

The North Carolina congressman who represents Camp Lejeune introduced legislation that would dismiss all charges against 2nd Lt. Ilario G. Pantano, the Marine who allegedly wrongfully shot two Iraqis while deployed to Iraq a year ago.

House Resolution 167, introduced by Rep. Walter B. Jones, R, states that Pantano, 33, was “defending the cause of freedom, democracy and liberty” in his actions on April 15 that resulted in the deaths of two Iraqis.

....

Pantano is charged with premeditated murder and other violations of the Uniform Code of Military Justice. He has been transferred to the 6th Marine Regiment as he awaits an Article 32 hearing on the charges in April.

I understand the motives behind this Congressman's actions.  Undoubtably, they include both the noble and the cynical.  There is also grave danger in applying post hoc standards to the imminence of combat and criminalizing the ordinary work of soldiers.

But for Pete's sake:  If this story is accurate, Representative Jones is a freaking idiot.  Courts, not Congress, decide guilt and innocence.  For Congress to continue to intrude in the functioning of the Courts to save their pet cases is the grossest abuse of power, the ugliest expression of overreach. 

It shouldn't be a hard thing to understand.  It's time for the wise fools in Congress to stand up, and end this nonsense.

Comments

[Katherine]

I deeply resent your characterization my view that sexual orientation ought to be considered a suspect class under the fourteenth amendment--which I have explained the basis for repeatedly and at great length even though you may disagree with it and which you have not been able to convincingly refute without rejecting the entire line of Supreme Court decisions about gender as a suspect classification--as comparable to either of these two other examples. This is why I accuse you of doing a knee jerk "pox on both your houses" thing: if you're going to criticize two sets of Republicans, well, better criticize some liberals too.

It's not like there aren't liberal examples you could've picked.

[rilkefan]

Too lazy/busy to google - were American soldiers tried for war crimes committed in WWII?

[Chuchundra]

Correct me if I'm wrong here, but isn't there already a process for this sort of thing. If Rep. Jones feels that Patano should be given a pass for his actions in Iraq, why not simply ask the President to grant a pardon? I mean, Bush has to sign this farkakta bill, why not just pardon him.

This seems to me to be even less about outcomes over process and more about legislative grandstanding. We've seen that in spades over the past two weeks.

[rilkefan]

Presumably Rep. Jones feels the stain on the honor of the American military resulting from a conviction would not be washed away by a pardon.

[Jay C.]

Von, some more background on this (the article you linked to doesn't say)? Has Lt. Pantano been charged (with anything) in connection with the incident? Has he been tried under UCMJ? Is a trial pending?
In any case, Rep. Jones' apparent attempt to circumvent the whole system of military justice in favor of (one supposes) his constituent is shameful enough: it would be edifying, though, to know what stage of the process he is trying to derail.

[Jay C.]

Accck! Bad, Jay, Bad!
Part of the answer already given......
Sorry.

[praktike]

presidential pardon?

[Nell Lancaster]

Aren't Rep. Jones' bill and the Schiavo "legislation" both bills of attainder? If not, why not?

[Doh]

Nell,

Neither bill would generally be considered to be punitive. They are "private bills," that is legislation for the relief of one (or two) individuals, but private bills are not necessarily unconstitutional.

(pedantic aside, this is why most legislation passed by Congress is given a designation like Public Law (P.L.) 103-30-- it is the 30th public (not private) law passed by the 103rd Congress).

[M. Scott Eiland]

I'm with Chuchundra here--the appropriate avenue for dealing with this is the man in the Oval Office, either to grant Lt. Pantano a pardon or to simply order the military authorities to dismiss all charges. The buck should stop with Mr. Bush.

[sidereal]

Actually, HR167 is the opposite of a Bill of Attainder, as it's seeking to legislatively exonerate someone, not convict (or attain their goods, as it originally went). It sounds kind of ex post facto, which is also unconstitutional, but that also usually applies to retroactive criminalization, not retroactive decriminalization.

[Katherine]

I think it's simpler than that: this law does not fall within the enumerated powers of Congress. The power to define and punish offenses against the law of nations and to write the rules governing the armed forces does not imply a power to write individual exceptions to those laws. The power to pardon is given to the President and the President alone.

BTW: interesting how we often have some sort of "constitutional intuition"--we feel like this is exactly the sort of thing the Constitution was intended to prevent, even if we can't immediately cite which clause of the Constitution forbids it. Such intuitions are often wrong--witness the conviction of Santorum & friends that their must be some federal constitutional issue in the Schiavo case, but I find it interesting how often they turn out, when you learn more about the legalities, not to be wrong.

[Macallan]

No offense von, but I think you're wasting pixels worrying about this. As far as I recall this sort of nonsense happens all the time. Congressdudes introduce legislation to address something that has their district's panties in a knot so they look like they're doing something. That something is nothing because these bills hit some committee's waste bin without consideration.

[von]

Katherine --

No offense intended, but we have a simple disagreement as to how the Constitution should be read. I try to read it according to the specific time and place where it was written and heard; you try to divine its better values, and draw larger conclusions that are capable of changing in application with the age. In some ways, your view is closer to the common law. Closer to the Anglo-Saxon tradition. And it's better, I'll readily admit, in many ways. But, on balance, I think that reading the document as a document gives its specific provisions more power; reduces the opportunity for mischief and evil; and, most importantly, places the values and conclusions that you divine from the text in the hands of the people. Where, ultimately, they should be -- for, in this grand experiment, the people have the final say. Might does make right; afterwards, the learned people can always find the words to explain why.

Better to have a few specific "shall nots" than an endless flurry of tests and variables and discretions. But don't think that I don't respect your view. I do. But it isn't mine and I don't think, ultimately, that it's the right way to go.

Macallan --

I hope you're right; I think you're right. But on the off chance you're not, I'll consider these pixels well wasted. (What were they going to be used for, anyway?)

[Francis]

"Civilization is life measured in coffee spoons"

what a great line! what does it mean and where did it come from?

i'm a big believer in process. After Schiavo, the medicare bill and your most recent cite, can I convince you to vote D?

[dmbeaster]

Here is some background about what may be behind the dispute -- the key discussion is in the comments (see nos. 11, 13, 18, 24, 27 and others -- 24 is a lengthy excerpt from a NY Daily News article and 27 links to this blog which has excerpts from witness statements. There are also cites posted by his mother and friends.

It seems the marines believe Patano wasted some prisoners and tries to pass it off as a legitimate shooting. Patano's own statements are troubling. The prosecution is based on testimony from marines who were present and also think it was murder. Only a trial will resolve this.

[ral]

LET us go then, you and I,
When the evening is spread out against the sky
Like a patient etherised upon a table;

...

For I have known them all already, known them all:--
Have known the evenings, mornings, afternoons,
I have measured out my life with coffee spoons;

The Love Song of J. Alfred Prufrock, by T. S. Eliot

One of my favorite poems.

[Nell Lancaster]

Von, thank you very much for this post. I think there is some reason for concern.

Earlier tonight I was at a 'town meeting' held by my Congressman, in which he answered seven questions in an hour. One of them was the enraged mother of a Marine in boot camp at Lejeune, wanting to know his position on this very bill. She didn't know squat about the particulars of Lt. Pantano's case, was just reflexively defensive of all soldiers in Iraq. (Just to give you a sense of her contact with reality, when someone asked about where the WMD were, she shouted out 'in Syria', and in introducing her question said she thought the real disgrace at Abu Ghraib was "the media shoving it in our face". )

My point is that word about this bill is making its way through email networks and many more military families may be getting worked up. I hope your post will prove pointless, but I'm afraid it won't -- and that your argument will need to be made more forcefully by those with a louder megaphone soon.

[Katherine]

von--totally wrong. We had like, two giant threads on this last week. I read it as a document; it's just a purposive rather than literal reading, which is how John Marshall read it & how most constitutional courts in the world read their constitutions. And I can tell the difference between original meaning and original application, and while I think the original meaning is binding the original application is not. Reading the f**king combined penal codes of the colonies into the Constiitution is not "reading it as a document." They're not in the f***ing text. Nor are the words "race only" or "not gays!" or "not ladies!" anywhere in the 14th amendment. Those are arguably the original intent behind the document, but it is the words of the laws we pass that bind us, not every wish or prejudice in the heads of the people who wrote them. Yeah, it's ambiguous. It's meant to be ambiguous. Time to grow up about it.

But I give up. If you don't get it after all these discussions, that I actually think that my interpretation is the CORRECT LEGAL INTERPRETATION and as well as getting better policy results, and yours is a LOUSY LEGAL INTERPRETATION as well as getting crappy results, you simply won't ever get it.

[rilkefan]

Yo, von, you may not have noticed, but Katherine disagrees with you about whatever-this-is, plus she thinks she's right, plus she thinks you're wrong. Your lack of understanding of the above explains some of our long-ago conversations about the run-up to the Iraq war...

[Thorley Winston]

Von,

Just FYI, the http://marinetimes.com/story.php?f=1-292925-730986.php>story you linked to and quoted misrepresenteds the http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.res.00167:>bill’s actual contents as it would not dismiss any charges against the marine in question. It basically just says we support him and don’t think he should be charged with murder (which is BTW what the http://jones.house.gov/html/release.cfm?id=288>author says) and is no different than any member of Congress expressing an opinion in that it has no legal effect on any case or the separation of powers.

By all means feel free to be upset that someone wasted time drafting and introducing this legislation when we ought to be doing something more useful like slowing down the growth of Medicaid but an abuse of process or a violation of the rule of law? Hardly.

As far as a better use for the pixels, you could always do another Cylon thread ;)

[Thorley Winston]

Re: March 22, 2005 11:25 PM

When you have the law on your side, argue the law.

When you have the facts on your side, argue the facts.

When you have neither facts nor the law on your side, SHOUT IN ALL CAPS that the other person has a LOUSY LEGAL INTERPRETATION and tell them to “grow up.”

[carpeicthus]

*Gets popcorn*

[Thorley Winston]

Did you bring enough for everyone?

[SomeCallMeTim]

Katherine:

I roughly agree with the way that you read the Constitution, but I think you're overclaiming the validity of your method. At the end of the day, the realists are right. Aspirational understandings of the Constitution are no more the solely authorized interpretive lens than originalism (though I admit I find the aspirational arguments substantially more convincing; originalism is complete crap). At the end of the day, you have to import your meanings from elsewhere. Von wants a restricted reading of the Constitution, which is probably determined by a series of extralegal factors (conscious or unconscious). I can't think why the same isn't true for aspirational interpretive methods. Maybe I'm missing something (I don't read ObiWi all the time), but I don't understand your heat.

[Phillip J. Birmingham]

When you have neither facts nor the law on your side, SHOUT IN ALL CAPS that the other person has a LOUSY LEGAL INTERPRETATION and tell them to “grow up.”

Or you could snipe from the shadows.

[Mark Shawhan]

Leave aside the actual legal effect of the bill for a second (which, as you point out, is nil); is putting this kind of political pressure on the military justice system a good thing? It seems to me that there is a very strong process-based argument that Congress has no basis telling the military justice system what kind of charges it should or should not level in this instance, or in any other.

[Thorley Winston]

Leave aside the actual legal effect of the bill for a second (which, as you point out, is nil);

Note that you’ve left out the only really important detail. Once you realize that the actual bill has no binding authority over the military, its courts, or the local crossing guard in front of the capitol building (Hi Eunice!) it’s simply a member of Congress expressing his opinion and trying to get others to agree with him.

Which makes this nothing more than a disagreement over an opinion expressed by a member of Congress rather than an actual issue about “process” or the “rule of law” as Von suggested earlier*. In other words a big fat “so what?”

is putting this kind of political pressure on the military justice system a good thing?

Please provide evidence that a toothless resolution which hasn’t even managed to get a single cosponsor rises to the level of “political pressure on the military justice system.” Because if that’s the case there’s a long list of similar resolutions expressing various opinions about what some member of Congress would like to get his or her colleagues to agree with that have just as little power behind them.

It seems to me that there is a very strong process-based argument that Congress has no basis telling the military justice system what kind of charges it should or should not level in this instance, or in any other.

The word “tell” here has two very different connotations. One connotation is to “tell” as in “to order with the force of law” which would be the case if this were a resolution that had the power to actually force someone to do refrain from doing something. The other connotation, is to “tell” as “expressing an opinion as to what you think they ought to do.”

As this is clearly the latter rather than the former, I say again “so what?”

* Although in fairness to Von, the article he seems to have relied on for this story appears to have completely misrepresented the resolution in question.

[Thorley Winston]

BTW don’t get me wrong, I think it is fine to criticize the Congressman for wasting time grandstanding when he ought to be doing something useful like working on ways to reduce federal expenditures on Medicaid. It’s just that when you realize that these “sense of the House” resolutions (which are utterly meaningless and pop up all the time) have nothing behind them than an expression of someone’s opinion (i.e. they don’t appropriate money, require anyone do anything or refrain from doing something) it really ends up being much ado about nothing.

[Slartibartfast]

I think it is fine to criticize the Congressman for wasting time grandstanding when he ought to be doing something useful

Mandatory, even. I'm pretty sure we passed any sane threshold for number of official days of recognition over a decade ago.

[Jesurgislac]

When you have neither facts nor the law on your side

I respect both Von and Katherine as lawyers. When they disagree on the interpretation of a law, even of the Constitution, I think it wisest to stick to arguing what I think/feel, rather than accusing one or other of them of having "neither the facts or the law on their side".

That out the way, I've never understood why Von thinks the Fourteenth Amendment, Section 1, doesn't apply to lesbians and gays. There is nothing in the text to justify this conclusion.

[Slartibartfast]

Why do you claim that von thinks this, Jesurgislac? Got a cite? Or is this more telepathy?

[liberal japonicus]

I think Jes is referring to von's assertion that the issue should be legislated, not litigated. A quick google turns up this (comments are more to the subject than the post), though this has bubbled up in other posts as well.

In an impressive display of the truth that there is nothing really new in the world, von also discussed the Groningen protocol, which can easily be connected to the questions around Terri Schiavo.

[Slartibartfast]

To the extent that marriage constitutes some sort of legal protection in and of itself, I'd agree. Inasmuch as there isn't much to marriage other than a nonbinding contract and declaration of togetherness (together with some potential for unpleasantness when said contract is dissolved), I think there's not much there to argue.

Now, this is certainly not to say that marriage doesn't come with some bonuses under certain laws (tax code, etc) but that's an issue with those laws and not the institution of marriage. I understand the exception taken, but I don't understand the mad dash for declaring von an opponent of the 14th.

[Slartibartfast]

Regarding above:

while(1)IANAL();

[Jesurgislac]

Slarti, in this post Von reminded us he had argued "In posts that annoyed nearly everyone, I argued for gay marriage but against finding a "right" to gay marriage in the Constitution."

While I didn't go back and look through his posts to find a cite (I would have if Obsidian Wings had a better search engine) what I recall is that Von's argument was based on the idea that the 14th Amendment doesn't apply to gays and lesbians - US citizens who happen to be lesbian or gay, are not, in Von's eyes, entitled to assert "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." (That the 14th Amendment applies to marriage was established, I believe, by Loving v. Virginia in 1967.)

I'm not claiming that Von is an opponent of the 14th Amendment: I am saying that Von is arguing that there are classes of people, lesbians and gays included, who are not entitled to the protection of the 14th Amendment. I am certain that Von can make a sound legal case for why this is: I note that Katherine can make an equally sound legal case for why this isn't: I am not, unlike Thorley, decrying either of them as lawyers.

[Slartibartfast]

I haven't searched his history, either Jesurgislac, but I'd be shocked if what he said could in any way be translated as how you interpreted it. I'd suggest that there's some nuance to what he said that escaped you.

[liberal japonicus]

This thread is probably more to the point, the juxtaposition of the Groningen protocol in the previous one just seemed too good to pass up.

I also disagree slightly with Jes characterization of von's position as 'Von is arguing that there are classes of people, lesbians and gays included, who are not entitled to the protection of the 14th Amendment'. I think von's argument was not that they are not 'entitled', but that the 14th does not and shouldn't be asked to do that job. Rather picky, but I would restate it as 'I took von as arguing that the 14th amendment does not cover lesbians and gays as a class' which leaves open the possibility that other laws cover them (as well as what logic would dictate)

[Jesurgislac]

LJ: I think von's argument was not that they are not 'entitled', but that the 14th does not and shouldn't be asked to do that job.

It looks to me as if it does. IANAL, but I note that it also looks to Katherine as if it does.

I don't disagree with Von's main point, that process is important for institutions - though being able to change the process is also important, which I'm sure Von wouldn't disagree with. The point is that an institution, big or small, must have a process, not a "I'm just making it up as I go along". That was why I finally came to the conclusion (regretfully, believe me) that the courts were right to declare the San Francisco marriages invalid, since the Mayor had not made them valid by process but simply by declaring that it was so.

This does not, of course, apply to individuals. One of the ways in which processes get changed is by individuals bucking processes and proving that yes, it can work if you do it differently, and why not? As a piece of political activism, the San Francisco marriages were a brilliant showpiece: set these couples queuing to get married against the bigots screaming at them that they should not, and you can see on what side the madness lies.

[liberal japonicus]

I guess my point is a picky grammar point. If I were to say 'you aren't entitled to X', I'm making a blanket statement about what you are entitled to. If I said 'this rule doesn't entitle you to X', I'm leaving open the possibility that some other rule might entitle you which is why von argues for "legislate not litigate". Von has said on several occasions that lesbians and gays deserve the right to be married, but that the weight of tradition makes it impossible to grant that immediately on a nationwide basis. It's a small point, but it distinguishes him from others who feel that lesbians and gays should never have the right of marriage.

[von]

Thorley --

I don't think the bill is misrepresented in the article (whether it's effective is another matter); you first have to get past all the whereas'es, but the second operative clause reads as follows:

"(2) the United States Government should dismiss all charges against Second Lieutenant Ilario Pantano arising from the actions referred to in paragraph (1)."

(Available via your link.)

[Jesurgislac]

LJ: Von has said on several occasions that lesbians and gays deserve the right to be married, but that the weight of tradition makes it impossible to grant that immediately on a nationwide basis.

And he's wrong about that. What makes it impossible to give lesbians and gays equal civil rights is the power of the religious right in the US, not "the weight of tradition". As so many other countries have proved, if you don't have a powerful religious right, it's entirely possible to go for equal civil rights. But when you do... well, the US is going in a direction that strikingly reverses what other Western countries are doing.

It's a small point, but it distinguishes him from others who feel that lesbians and gays should never have the right of marriage.

There is a sliding scale in this and other things. The point I was making was Von's belief that the 14th Amendment does not apply to lesbians and gays.

[von]

Jes --

LJ's impression of my position is the correct one. I'm all in favor of passing laws to protect gay people from discrimination. I'm all in favor of, among other things, passing law to permit/encourage gay marriage. Hell, I haven't completely thought it through, but I'm probably all in favor of amending the U.S. Constitution, if such is required.

Please understand that, in the U.S. (and elsewhere), most "rights" are legislated, not mandated by the U.S. Constitution. The Americans with Disabilities Act, for instance, protects the disabled from discrimination. And that's good. I also don't think Katherine is arguing that the protections given by those laws are redundant of the 14th Amendment's protections -- although it is possible to construe her argument that way. After all, the contextless text of the 14th Amendment could easily apply to the disabled.

[dmbeaster]

von:

"should dismiss"

It still sounds advisory rather than an abuse of process by trying to compel dismissal (although its still a waste of time and meddling).

One response from service people (per links in my prior post) is that the public lobbying for Pantano is undermining morale by falsely spreading the notion that a soldier can be haphazardly charged with murder for shooting an insurgent. Many support the propriety of the investigative proces to determine the truth, and indicate that there is substance to the charge. Others apparently served at one time under Pantano and have unkind things to say about his character (although that should have no bearing on resolving the charge).

[von]

Jes --

One further note. My mention of tradition was in the context of the process of rule making -- and, not necessarily, the rules themselves. I'm willing to radically alter tradition where I think it right or just; for instance, to allow same sex marriage.

[Dutchmarbel]

Liberal Japonicus:In an impressive display of the truth that there is nothing really new in the world, von also discussed the Groningen protocol, which can easily be connected to the questions around Terri Schiavo.

Groningen protocol is about active euthanasia, not passive euthanasia. For most people (except Iforgothisname with the plastic bag elsewhere in a thread) a big difference. Also, Groningen protocol is about people who never could have made a living will and who are suffering severely: both essential points and not present in the Schiavo case. Last but not least, for Groningen protocol there has to be consent from the guardians (the parents).

To be honest: I don't know wether the tube would be removed in the Netherlands against the wishes of the family, in the absence of a living will. It depends on how clear the evidence is that the patient would have wanted it, so I *think* our judges would rule the same. Interests of the patient are most important, the docters can decide against the wishes of guardians if it is in the interest of the patient, but have to follow procedures (i.e. whan they want to perform lifesaving bloodtransfusion for children of Jehova's witnesses).
So I assume that in cases like this the tube would be removed.

[von]

DMBeaster --

I agree that the language of the proposed act is not mandatory, but disagree that an act of Congress instructing a Court that it "should" do something is not an abuse of process.

[liberal japonicus]

Sorry, I didn't mean to be glib about the relationship between Groningen and the Schiavo case, but since both revolve around patient autonomy and death, I just found it rather interesting. I would like to know how much play this is getting in different countries, but my 6 year old has for this spring break, decided to do a DVD retrospective of her collection, making the Japanese TV news (which gives me the leads to google stuff) inaccesible so I can't get a good fix on what the general opinion is here, but in talking to my wife, she is a bit baffled as to why the husband would have precedence over the parents. However, it is not a subject that is easy to discuss as Japanese culture really has a strong taboo about discussing death. There are some ideas about funeral rites and such, but I'm still trying to find out more.

A lot of this would revolve around how guardians are decided upon and how their status is upheld, another point that I'm trying to find out about. Again, sorry for being glib.

[Tad Brennan]

Suppose that Von is right about the construction of the 14th.

It still seems to me that arguing for a different construction of it, as Katherine does, is not fundamentally disrespectful of due process in the way that passing the Schiavo bill, and requiring Federal courts to revisit a case already sat upon by 19 state judges, is disrespectful of due process.

I just don't see how arguing about the Constitution is disrespectful of process--hell, lots of times that's exactly the activity that *constitutes* process.

So I still think Von's comparison is out of line, no matter who you think has a better reading of the 14th.

[von]

I just don't see how arguing about the Constitution is disrespectful of process--hell, lots of times that's exactly the activity that *constitutes* process.

Where do you see me making that argument? Indeed, I pretty much think I said the opposite in my post of last night (at 9:55 p.m.).

[votermom]

she is a bit baffled as to why the husband would have precedence over the parents.

As an asian, I kind of understand that bafflement. Blood ties are traditionally stronger than nuptial(?) ones.

[Francis]

votermom and lj: western tradition is precisely the opposite. Nuptual ties sever the parental ones. The wife was, historically, property of her family until she became property of her husband.

A more modern view would say that by electing to marry a particular man a woman has expressed her consent that this man is the person she wants as her guardian if she is incapacitated.

TW: anything of substance to say, or just cheap shotting katherine?

14th amendment fights are always fun. The word "tradition" appears nowhere in the clause, yet for SH and von it always somehow creeps in. Homosexuality used to be the "love that dares not speak its name"; black people used to be property. There's ample history of abuse and discrimination for both groups. Yes, we had to fight a war over slavery, but some people argue that the 13th amendment was the remedy. The 14th was, it can be argued, intended to incorporate broadly the bill of rights against the states as an additional remedy for the protection of minority rights in all states.

[Slartibartfast]

Does "equal protection under the law" mean that everyone has priveledge to do everything, or does it mean that everyone enjoys equal legal protection? I'm inclined to think the latter, but remember that batch job running the IANAL disclaimer.

I'm also inclined to think that if marriage is offering undue and unequal benefits, perhaps it's those benefits that are unconstitutional. I don't see those benefits themselves being attacked with nearly the vigor that gay marriage is being espoused, so I'm thinking there's a serious element of self-interest, here. Or maybe there's another reason I haven't thought of.

So, for the legal eagles: a question. Is marriage all by itself a protection, or is it that other laws that use marriage as a discriminator offer unequal protection? Or have I got it all mixed up, and my question doesn't make sense?

[Anderson]

Fwiw, "should" in my experience does usually carry the advisory meaning that dmbeaster attributes to it, as in "I should lose some weight" or "the agency should consider environmental impact." "Should" isn't "shall." Though I imagine we could find some conflicting case law out there.

[liberal japonicus]

Blood ties are traditionally stronger than nuptial(?) ones.

True, and there seems to be something below the surface of the Schiavo case that I am not willing to dig around to find out about. The fact that the parents and the husband were in agreement for the first 5 or so years and then diverged makes me wonder.

As an asian
Wow, asians of ObWi, unite! Though I'm half Japanese, (sansei), I would certainly expect my wife to have the biggest say in the matter, though this sort of situation is beyond my imagining. However

A more modern view would say that by electing to marry a particular man a woman has expressed her consent that this man is the person she wants as her guardian if she is incapacitated.

I'm still trying to figure out how all this works here (and this case has certainly sharpened my thought processes), but in Japan, the woman is taken off her parent's family register and placed on her husband's (this is why Japanese divorcees are called 'batsu ichi', because their name has been stricken from the spouse column of the husband's family register) I don't know if the idea of the woman expressing her consent to have her husband as the guardian as being all that modern ;^)

But I think the big disconnect is the idea that a spouse and the in-laws could have a disagreement so strong as this one. One of the things that I have to believe has made it worse is the fact that there were no children, as grandchildren have a way of solving problems (they did for both for my folks and for me and my father in law)

[Thorley Winston]

Von wrote:

I don't think the bill is misrepresented in the article (whether it's effective is another matter); you first have to get past all the whereas'es, but the second operative clause reads as follows:

Okay, here is what the http://marinetimes.com/story.php?f=1-292925-730986.php>article Von cited claimed about the bill:

The North Carolina congressman who represents Camp Lejeune introduced legislation that would dismiss all charges against 2nd Lt. Ilario G. Pantano, the Marine who allegedly wrongfully shot two Iraqis while deployed to Iraq a year ago.

Note that the article is clearly claiming that the bill in question would dismiss all charges against the marine in that it would somehow have the force of law behind it to compel the military court to dismiss charges. But here is what http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.res.00167:>H.RES.167 actually says:

Resolved, That it is the sense of the House of Representatives that--

(1) Second Lieutenant Ilario Pantano, United States Marine Corps, was defending the cause of freedom, democracy, and liberty in his actions of April 15, 2004, that resulted in the deaths of two suspected Iraqi insurgents and that subsequently have given rise to certain charges against him; and

(2) the United States Government should dismiss all charges against Second Lieutenant Ilario Pantano arising from the actions referred to in paragraph (1).

The relevant phrase (which Von omitted from the operative clause) is“http://www.google.com/search?hl=en&q=%E2%80%9Csense+of+the+House+of+Representatives%E2%80%9D+&btnG=Google+Search>sense of the House of Representatives” meaning “it is the opinion of the members of the House of Representatives” rather than actual law which could compel anyone from doing or refraining from doing something (such as dismissing charges against the marine). As I said before the House has these things all of the time and you can see from this “http://www.google.com/search?hl=en&q=%E2%80%9Csense+of+the+House+of+Representatives%E2%80%9D+&btnG=Google+Search>google search” that they’re purely symbolic rather than anything that rises to an abuse of process or a violation of the rule of law.

[Thorley Winston]

Francis Logan wrote:

TW: anything of substance to say, or just cheap shotting katherine?

Actually so far I’ve been the only one who posted anything actually pertaining to the topic at hand. Which is what comes from actually, I guess, reading the resolution before commenting on it. You should try it some time, assuming you’re capable.

[Catsy]

I'm also inclined to think that if marriage is offering undue and unequal benefits, perhaps it's those benefits that are unconstitutional. I don't see those benefits themselves being attacked with nearly the vigor that gay marriage is being espoused, so I'm thinking there's a serious element of self-interest, here.

I think you're on the right track here, but not entirely. There are two aspects to marriage that are desirable, and understanding both of them is essential to understanding why most of the "compromise" arguments are disingenuous.

First of all, there's the religious and/or community aspect to marriage. You're married in the eyes of your peers, you have the right to tell everyone you're married, you /feel/ married. Anyone can /almost/ have this right now, since any priest or other official can marry you in their church if they choose, as long as it's understood that it has no legal standing. This is why civil unions are unacceptable to so many people--they smack of "separate but not equal". Instead of segregated bathrooms, we have segregated relationships: sure, you can have some of the benefits of marriage, but the name is /ours/.

However, then there's the civil aspect. This is not insignificant. There are literally /countless/ benefits that come from being married. Forget about the financial incentives--many of them can be critical for a couple who needs to be able to make decisions on each other's behalf. These benefits aren't being attacked because they're /good and useful/ to people in a long-term committed relationship, and many are in fact essential for establishing a couple's legal standing. They are essential and non-negotiable because of the way our laws respecting married couples have been constructed: it is prohibitively expensive or even impossible to duplicate many of their effects individually with an attorney. Those who would deny gay couples the ability to have their relationship recognized by the state, and who gloss over the number of ways in which our laws are structured to require marriage in order for a couple or a family to function optimally, aren't trying to protect anything--they simply don't like homosexuality and want to discriminate against and delegitimize homosexual couples. Period full stop. They, and their arguments, are deserving of the same kind of contempt and revulsion with which we view those who fought against black rights.

[von]

Thorley --

I qualified my post with the words: "If this story is accurate"; you've now convinced me that the story is not accurate, so my post's statement is overbroad. But I do appreciate your cheap shot.

[Thorley Winston]

Von,

You’re most welcome as always and I look forward to seeing your update acknowledging the inaccuracy of the story you linked to rather than forcing readers to sift through numerous off-topic posts about “gay marriage” until they get to someone who actually took five minutes to find and read the resolution before weighing in.

Seriously do another Cylon thread ;)

[ral]

Re. "coffee spoons,"

If I have correctly identified von's reference, well, it is not a very upbeat definition of civilization.

Moving to image versus substance, I agree that "sense of the House" resolutions and "official days of recognition" are less of concern than actions taken that have the force of law. Lately, those actions are troubling too (see Schiavo).

No process that involves human beings is immune from error, abuse or corruption. Lately, though, it seems to me that there's a sharp increase in what I would call lawlessness from our political leaders. I fear we are on the road to a government of men, not laws.

[carsick]

LJ
My understanding is that the husband took his wife to multiple doctors around the country looking for hope for up to five years. The parents supported his efforts. After he finally came to the conclusion that there was no hope for a recovery or even partial recovery, the parents split. The parents also have said they would be doing the exact same thing even if she had a written DNR or living will (which did not exist legally until after she had her heartattack.)

[von]

Seriously do another Cylon thread ;)

I'll eventually take the hint. ;-) (Foolishly omitted from the end of my "cheap shot" comment.)

[von]

Ral -- you have, and it is. But what we have is all we have.

FWIW, I originally wrote the line as follows:

"Civilization is life measured in coffee spoons; all the mermaids are dead. And this is, on the whole, a good thing."

But I felt the "mermaid" reference was a bit too much Proofrock.

[Slartibartfast]

All that being the case, Catsy, where's the inequality of protection? Having your relationship legitimized (or not) doesn't, I think, constitute any sort of protection under the law. All of the benefits you're totting off aren't implicit in any laws relating to marriage, they're what are reserved for people who are married. It's not the marriage that's protective, it's the things piled on top of being married that are. There's a difference.

And if you're unwilling to declare existing law unconstitutional because of the sheer tangle that would ensue, you're willing to let unconstitutional law stand? I can't see this being the right answer, either.

[votermom]

Just a cultural note: Back to Schiavo, in an Asian country, family is paramount. Once the money (earmarked) for her care runs out, the typical Asian family would let her die peacefully, to go to heaven and/or rebirth and/or the ancestors. Seeing as there is rarely any health insurance in most Asian countries, she probably wouldn't have gone on life support in the first place, and would have been dead these fifteen years. The surviving spouse would probably remarry and would be counted as friend but no longer family of the deceased's family, since the marriage had no issue.

On Pantano: Sounds like bullying, when Congress tells courts/ucmj what they "should" do. Or else what? is the question.

LJ: I didn't know there was a taboo on discussing death in japan? In what ways is this discouraged? *curious*

[Dutchmarbel]

Liberal Japonicus: Sorry, I didn't mean to be glib

I never interpreted your statements as glibness ;-).
You strike me as a factist, so I assumed you'd like the complete picture, that's all. And people in the US tend to have the weirdest idea about our euthanasia policies, so I try to at least correct the factual misrepresentations ;-)

I think in this case you cannot really compare, because the case is NOT about who decides FOR the patient, it is about what the patient would decide. Living will is the easiest way to determine that, but they were not common (or non-existent, I don't know how things were in the States) 15 years ago. Terri Schiavo didn't have one, but has appearantly said so often to various people that she would not want to live like this, that the court (19 judges IIRC) felt there was very clear evidence that HER decision would be to remove the feeding tube. Her husband didn't ask the court to remove the tubes, he asked the court to decide wether SHE would want that. Thus the question is not wether spouse, partner or parents should decide in this case.

Marjolein (struggling through the embarrisment of richness btw: very interesting material, lots I never knew, but not the easiest English ;-) )

[Dutchmarbel]

Oh, and about Pantano: I suffer from complete culture clash there. Bills like that would strike me as very very bad, also for other soldiers. Fairness and proper procedure are protection too, and probabely even more important in life threatening situations.

[ral]

Dutchmarbel, thanks for the pointer back in This One's For You, Rilkefan. It is on my list to read, but I haven't read it yet.

These various threads seem to me to share a theme -- I touched on it above ("lawlessness") but let me see if I can make it clear.

I think we are seeing a yearning for a simpler as well as a grander time, not just because the complexity associated with these hard decisions (war, end of life) is confusing, but also because civilization seems shrink the human spirit ("coffee spoons").

Volokh's "I like civilization" struck me as so ironic. Evolution is a slow process, so we still possess emotions that served us well for survival on the plains, but our recently-developed reasoning power has given us tools to create destruction on a massive scale.

Not long ago in human history, wars were considered glorious and beneficial for personal growth (for men, I mean). World War I put the lie to that (you would think just that would have been enough), and World War II made it blindingly obvious. Yet we still yearn.

[ral]

von: You'd rather be talking about conclusions.

Slart promised us the Phantom Tollbooth, so I can be patient.

[Gromit]

Slartibartfast: All that being the case, Catsy, where's the inequality of protection? Having your relationship legitimized (or not) doesn't, I think, constitute any sort of protection under the law. All of the benefits you're totting off aren't implicit in any laws relating to marriage, they're what are reserved for people who are married. It's not the marriage that's protective, it's the things piled on top of being married that are. There's a difference.

First, the problem here is not that we privilege marriage. The law is applied equally when anyone can get married and enjoy those protections, regardless of immutable characteristics. Marital status is not itself an immutable characteristic, it is a status that people choose (this is why prohibitions against polygamy shouldn't violate equal protection, I think). Sexual orientation arguably is immutable. Sex and gender most definitely are immutable. Of course, I am not a lawyer, and I'm sure this is a simplistic summary.

As for your larger point, that the protections attendant to marriage are not implicit in the actual marriage statutes, I'm not sure how this question is addressed in a legal framework, but I don't think you are correct. There is no question that a marriage license confers special protections on the couple, whether those protections are written into the laws treating the issuance of the license or not. Once you have the license you have spousal privilege, for instance. It's automatic, and therefore, I would argue, implicit. Gay couples simply can't get spousal privilege by any means other than a marriage license. If they are denied that license on the basis of the genders of the individuals, that's unequal protection, in my book.

[Slartibartfast]

The law is applied equally when anyone can get married and enjoy those protections, regardless of immutable characteristics

Which protections? Which protections are innate to marriage and not piled on marriage by other laws?

but I don't think you are correct

I don't expect to be, but I would enjoy someone telling me why I'm not. But again, if you want equal protection under the law, you're going after the wrong laws, IMH(and probably incorrect)O.

[Catsy]

Which protections? Which protections are innate to marriage and not piled on marriage by other laws?

Tax status, for one. Couples filing as married are taxed differently than couples filing as single. You might argue that this is "piled on", but I would argue that tax status is an innate characteristic of civil marriage. In various risk-benefit evaluations where credit and rental applications are concerned, married couples are viewed as "safer" than unmarried couples. They can also usually apply for such things jointly, on one form, whereas unmarried couples must use separate forms and pay twice the application fees. These are just a few examples--many more abound. They cannot be achieved by any means other than being legally married. That's not even including the many benefits which can only be duplicated by spending thousands of dollars in attorney's fees to draw up the proper contracts and documents. IANAL, but if you want an equal protection argument, that's another one waiting to be made on grounds analogous to the arguments against poll taxes.

However, I don't think it's ultimately meaningful to distinguish between protections that are "innate" to marriage--whatever that means--and protections "piled on" by other laws. Civil marriage exists because of other laws which have defined the obligations and benefits thereof, without which there would be no need for a civil recognition of the state of marriage. Strip away tax status, power of attorney, custodial and visitation rights, and all of the other countless incidences of marriage, and it ceases to exist as anything other than the spiritual bond between two people. Those things /are/ marriage, insofar as the state is concerned.

I have a hard time believing that you're seriously suggesting that supporters of gay marriage separately and systematically try to fight every single law that confers a benefit on married couples, trying to either repeal them or rewrite them so that they include domestic partnerships of some sort. I don't think it's the right thing to do, and it's also bad politics. Not to mention an enormous waste of time. The common denominator in all this, the single gateway to all those benefits, is the determination of who has a right to be "married".

[liberal japonicus]

LJ: I didn't know there was a taboo on discussing death in japan?

I wouldn't say a specific taboo, but when there are a whole constellation of behaviors that make it clear (at least to me) that this is a subject that is really difficult to get to the heart of. For example, here in Southern Japan, almost all of the embalming is done by a two Canadian companies that bring foreigners to Japan to do the work, which pays remarkably well, but the idea of a company that dealt with dead bodies directly would probably leave anyone who worked for the company as outcasts. (historically, the Japanese capital moved everytime the ruler died) A recent program presented a person whose apartment rent was 50% cheaper than all the other apartments in the block, because the previous tenant had committed suicide in the apartment. This has to be a lot more common than is admitted, but the person who lived in the apartment had his features hidden and his voice was altered in the video. Japanese people still refuse to buy household goods in sets of 4 because 4 in Japanese is a homophone with death.

Admittedly, in some ways this is not so different from the Western reticence to deal with death, but I do think that there are some differences in how the Schiavo case is perceived here.

[Anarch]

Japanese people still refuse to buy household goods in sets of 4 because 4 in Japanese is a homophone with death.

The same is true in Cantonese (subject to the tones, of course). I remember being really irked when one of my best friends in high school had his phone number changed, because it used to be so easy to remember: 484-444.

-- Robert

[Gromit]

Slartibartfast: Which protections?

I gave you one example: spousal privilege.

Which protections are innate to marriage and not piled on marriage by other laws?

And I argued that protections like spousal privilege are implied by a marriage license.

Apply your above reasoning to anti-miscegenation laws. Does it still sound right?

[Slartibartfast]

I gave you one example: spousal privilege.

Spousal privelege? What on earth is that?

Whatever it is, "implied" is not the same as "granted".

Tax status, for one. Couples filing as married are taxed differently than couples filing as single. You might argue that this is "piled on", but I would argue that tax status is an innate characteristic of civil marriage.

Well, that's pretty obvious. Trouble is, though, tax status is clearly granted by the tax code. There's nothing innate about it, especially once you consider that marriage has been around for several centuries longer than, say, federal tax code regarding marriage. And if you think being married is, globally, an advantage, tax-wise, consider that I'd be paying a few thousand less in taxes if I weren't married.

In various risk-benefit evaluations where credit and rental applications are concerned, married couples are viewed as "safer" than unmarried couples.

And this is magically provided by the marriage contract in what way, exactly?

whereas unmarried couples must use separate forms and pay twice the application fees

Sounds like discrimination, which is something you ought to pursue in court or legislation, if it bothers you all that much.

Strip away tax status, power of attorney, custodial and visitation rights, and all of the other countless incidences of marriage, and it ceases to exist as anything other than the spiritual bond between two people.

I believe I already made that as a suggestion. Are you saying it's so?

I have a hard time believing that you're seriously suggesting that supporters of gay marriage separately and systematically try to fight every single law that confers a benefit on married couples

Have I suggested that? I don't think I have. Actually, you might make a case that anyone not advantaged by rights...I guess "piled on" is as good a phrase as any...piled on marriage is just as neglected as anyone else, and I'd probably have to agree.

I don't think it's the right thing to do, and it's also bad politics.

Stopped by expediency, it appears.

Apply your above reasoning to anti-miscegenation laws. Does it still sound right?

I'm afraid you're going to have to give an example.

[JerryN]

Slarti - spousal privilege is the privilege that inheres to a spouse to not be compelled to testify against the interest of their spouse in legal proceedings. There is no way to enter into a civil contract to obtain these rights outise of marriage as far as I know (insert obligatory IANAL here).

[Gromit]

Slartibartfast, the reasoning you are advancing for the constitutionality of sex discrimination in marriage laws could just as easily be applied to racial discrimination in marriage laws. The relationships between the marriage statutes and the protections they confer are the same, i.e. the protections are neither more nor less innate to the marriage laws than they would be in a same-sex marriage case.

[Slartibartfast]

Slartibartfast, the reasoning you are advancing for the constitutionality of sex discrimination in marriage laws

I'm advancing nothing of the kind. I suggest you reread my comments.

the protections are neither more nor less innate to the marriage laws than they would be in a same-sex marriage case.

Probably true, but completely irrelevant.

[Catsy]

Slart, I'll be straightforward here: I don't think you're advancing an honest argument. It sounds like you're either throwing up chaff, or arguing a meaningless point for the sake of argument, and every response you write reinforces that impression. You cannot separate the legal benefits of being legally married from the laws which specify what those benefits are. You asked me for an example of the "innate" benefits of marriage not "piled on" by laws--and at first I tried to oblige you by giving you examples of the many ways in which married couples receive "unwritten" benefits in everyday life. But upon further reflection, I don't think that your question really makes sense. What is an "innate" benefit of marriage? AFAIK, there is no such thing--the state of being legally married is a boolean variable that gets set to a nonzero value when two people get married. The only intrinsic meaning or function it has is emotional and spiritual. It gains legal force and benefits by virtue of other laws written to recognize that those who are married should be able to make legal and medical decisions for each other, share property and child custody, and have certain advantages intended to encourage stable relationships.

Have I suggested that? I don't think I have.

Yes, you have. Right here:

But again, if you want equal protection under the law, you're going after the wrong laws, IMH(and probably incorrect)O.

This sounds to me like you're advocating that rather than trying to make it so that gay people can get married, we should just try to change the laws which confer benefits on married people. There's more than a few problems with this.

First of all, it doesn't address one of the fundamental problems confronting gay couples who want to get married: they want to get married. Sure, a lot of the benefits, like being able to have spousal rights when their partner's in the hospital, would be really nice. But for many, it isn't as much about the rights as it is about being married.

Second, attacking the hundreds of thousands of laws that happen to reference marital status is logistically absurd, not to mention going after the wrong target. Most of us don't have any problem with the fact that there are all these laws conferring benefits on married couples. We just want gay people to not be actively discriminated against in the determination of who may marry whom.

Finally, on a practical note, it would be politically stupid--it would give unnecessary ammunition to all the fools who actually think that people supporting gay marriage are out to destroy the institution of marriage.

Your snark about expediency nonwithstanding, we would be fools to try the approach you seem to be suggesting.

[Catsy]

Italics begone!

[Slartibartfast]

It gains legal force and benefits by virtue of other laws

If you read upthread you'll discover that you're vehemently agreeing with me.

Yes, you have. Right here:

Here?

This sounds to me like you're advocating that rather than trying to make it so that gay people can get married, we should just try to change the laws which confer benefits on married people.

Maybe if you'd read the very next sentence after that one, you'd have realized that this was not the entirety of my point. You seem to think that this is all about gay marriage for me.

First of all, it doesn't address one of the fundamental problems confronting gay couples who want to get married: they want to get married. Sure, a lot of the benefits, like being able to have spousal rights when their partner's in the hospital, would be really nice. But for many, it isn't as much about the rights as it is about being married.

And here you were making a decent case that it was about equal protection. Well, I'm thinking that you're making a convincing case for that marriage is not, all by itself, a protection extended by the law.

We just want gay people to not be actively discriminated against in the determination of who may marry whom.

I'm all for people marrying whom they please. I just don't think you're going to have much luck getting judges to rewrite the law book for you. I think if you're going the judicial route, the law is going to have to be thrown aside as unconstitutional.

we would be fools to try the approach you seem to be suggesting.

Yes, you would. But the path you're on now, how's that working? The snark, though, was actually disappointment. I'd imagined there was a bit more resolve, there.

[Anarch]

Well, I'm thinking that you're making a convincing case for that marriage is not, all by itself, a protection extended by the law.

Speaking on purely legal grounds -- that is, within the auspices of the laws of the United States and not relative to any particular religious background -- what would you say that marriage is?

[Anarch]

Oh, I forgot:

And if you think being married is, globally, an advantage, tax-wise, consider that I'd be paying a few thousand less in taxes if I weren't married.

Is that you personally or you and your wife collectively? If the latter, could you explain this? It was my understanding that the Republicans had pretty much ironed out the "marriage penalty" in the late 90s.

[Slartibartfast]

Speaking on purely legal grounds -- that is, within the auspices of the laws of the United States and not relative to any particular religious background -- what would you say that marriage is?

Oh, that could take up volumes. Legally? I have no idea, other than it's a condition conferred upon by individual states.

Is that you personally or you and your wife collectively? If the latter, could you explain this? It was my understanding that the Republicans had pretty much ironed out the "marriage penalty" in the late 90s.

There's no way to separate us. If we divorced right now and filed as single people, we'd in total pay quite a bit less tax. There's almost no way to avoid this. I'm not complaining, mind you, because paying the upper-bracket rate means we're earning quite a bit of money between us. Just noting that the tax advantages that come along with marriage aren't a given; they're mostly incidental. Spousal privelege also isn't foolproof, which is why we both have power of attorney. Although this last was done more because we had kids to provide for than any worry about beingg on life support. If we've gotten any benefit from the Schiavo case, it's that it forced us to confront what we'd do in under similar circumstance.

And not that it's important, but I'm neither especially proud of making a good income nor in any way ashamed. It's certainly not what I'd aimed my life toward, but it's more a reward for the particular set of skills that I bring to my job combined with a market condition of relative scarcity of others with my skills. And to be honest, relative to my wife's reward for her abilities, I'm way overpaid. Take any conventional metric of intelligence that you choose, and I'm smarter. But she's way, way sharper than I am. Wish I understood that, but there it is.

[liberal japonicus]

But she's way, way sharper than I am.

So, what's her take on this gay marriage thing? ;^)

[Slartibartfast]

She's against it, but that's got nothing to do with anything else I've said here.

[Jesurgislac]

She's against it

Too bad. But then, without this major flaw, she would have sounded too good to be true. ;-)

[Gromit]

Slartibartfast: Spousal privelege also isn't foolproof, which is why we both have power of attorney.

These two concepts are unrelated. Power of attorney will not protect you from having to testify against your wife.

Me: Slartibartfast, the reasoning you are advancing for the constitutionality of sex discrimination in marriage laws

Slartibartfast: I'm advancing nothing of the kind. I suggest you reread my comments.

Unless I'm completely misreading you, the argument you are advancing is that marriage itself provides no protections, therefore sex discrimination in marriage laws is constitutional, and it is only the laws which confer protections on the already-discriminatory status of marriage that might be unconstitutional. If this isn't what you are saying, then you'll need to explain yourself more clearly.

And if I am correct, then it seems to me you are trying to get into an argument over how many angels can dance on the head of a pin.

Me: the protections are neither more nor less innate to the marriage laws than they would be in a same-sex marriage case.

Slartibartfast: Probably true, but completely irrelevant.

So you agree that your reasoning might leave us open to new anti-miscegenation laws? And you think this is irrelevant? I can think of some couples who might beg to differ.

[Slartibartfast]

therefore sex discrimination in marriage laws is constitutional

Whoa, pardner. I've asked you to clarify this upthread and gotten nothing. What sex discrimination in marriage law?

then it seems to me you are trying to get into an argument over how many angels can dance on the head of a pin.

Angels and pins? Really, this is hardly even an interpretation of what I said, never mind any sort of counterpoint.

So you agree that your reasoning might leave us open to new anti-miscegenation laws?

Is this some sort of contest to see who can most grotesquely misinterpret what I've said? For at least the third or fourth time, I've said nothing of the sort. If your purpose is to annoy me in place of discussing what I've actually said, consider it done.

[Jesurgislac]

Slarti: If your purpose is to annoy me in place of discussing what I've actually said, consider it done.

I think I'm probably not the only one who is uncertain what you're actually saying, Slarti.

[Gromit]

Slartibartfast, we are talking about laws that limit marriage to the union between a man and a woman, right? Not man and man, not woman and woman. This is discrimination on the basis of sex, as surely as a law that limits marriage to the members of the same race discriminates on the basis of race.

And, from all appearances, the question you set out to address was whether these laws violate the 14th amendment of the U.S. Constitution, no? Where am I going wrong in interpreting what you have said? I mean, if you are starting from the premise that a law that defines eligibility based on some characteristic is somehow not discriminating based on that characteristic, then I think we are dealing with a fundamental breakdown in terminology, and all I can do at this point is refer you to the nearest dictionary.

And this might help with the angels reference. Sorry, I wasn't trying to be obscure.

[Jesurgislac]

how many angels can dance on the head of a pin

As long as that dance is a gavotte, one.

[rilkefan]

Consequences of an anti-gay-marriage initiative at Yglesias's blog.

[Slartibartfast]

This is discrimination on the basis of sex

If you'd claimed that it's discrimination on the basis of sexual orientation, I might agree with you. But discriminatory practices are common. What we're talking about here is when said practices violate equal protection, which I don't think you've shown yet. There are in fact different sets of eligibility based on sex for certain activities. Discrimination based on some attribute or other doesn't all by itself violate equal protection.

But all this is not all that important. What's important is a workable path. What you're not going to see happen is judges deciding what the law is from the bench. This couldn't be more of a separation-of-powers issue. You want gay marriage legalized? I suggest you explore workable avenues to make that happen. Having judges legislate from the bench is not workable. IMO, of course. I could be completely full of fertilizer, and probably am. Show me.

Yeah, I got the angels bit. It seemed to be entirely inappropriate, though.

[Gromit]

Slartibartfast: If you'd claimed that it's discrimination on the basis of sexual orientation, I might agree with you.

It is that, too, but only implicitly. Or are you suggesting that the laws in question explicitly test the orientations of the applicants? The laws have the ultimate effect of discriminating against homosexuals, to be sure, and I have no problem with folks framing the discussion in that way. But that doesn't erase the sex discrimination at the heart of the matter.

But discriminatory practices are common. What we're talking about here is when said practices violate equal protection, which I don't think you've shown yet. There are in fact different sets of eligibility based on sex for certain activities. Discrimination based on some attribute or other doesn't all by itself violate equal protection.

Thanks for stating the obvious. Now, consider two parallel scenarios:

Person A applies for a license to marry Jeff, a man (Jeff, of course, applies for the license as well).
Person B applies for a license to marry Sally, a woman (Sally applies, too).

1) In each scenario, assuming the applicants are otherwise eligible, does the sex of the unknown applicant not determine whether a license is granted, and therefore whether the legal protections of marriage are conferred on the individual in question?

2) If so, is this discrimination substantially related to an important government interest?

3) If not, how is this equal protection of the laws, as required by the 14th Amendment?

[Jesurgislac]

If not, how is this equal protection of the laws, as required by the 14th Amendment?

I was hoping Slarti would answer this.

[Slartibartfast]

Or are you suggesting that the laws in question explicitly test the orientations of the applicants?

No, they simply don't provide for marriage of same-sex partners. I guess there's probably asexual marriages, so point taken.

Thanks for stating the obvious.

Simply returning the favor. But, you're welcome.

1) In each scenario, assuming the applicants are otherwise eligible, does the sex of the unknown applicant not determine whether a license is granted, and therefore whether the legal protections of marriage are conferred on the individual in question?

As far as I can tell, irrelevant. You don't apply for a marriage license in the same way as you'd apply for a hunting fishing license or building permit; they're applied for jointly. So, in a word, mu. Yes, I know, you worded this in such a way that it appears as if the sex of one candidate matters, but that's not the case. What is the case is that the sex of the two persons cannot be the same. You can argue that this isn't "fair", and I'm not arguing counter to that. If you think I am, you need to once more go upthread and read not what you think I said but what I actually did say. The argument that a law can discriminate against both men and women, pretty much equally, isn't an argument that discrimination based on sex is taking place.

As for the equal protection thing...well, as I've pointed out ad nauseam, marriage isn't a protection. You can always lobby for laws giving protection to "meritricious relationships", or you can lobby to take the spousal privelege away (which, by the way, might do interesting things to doctor/patient confidentiality) or you can lobby for legislation to grant similar rights to other kinds of relationships, or you can lobby for making gay marriage (call it civil unions if you like; I really don't care all that much about the terminology) legal and legally equivalent to hetero marriage, or you can petition the courts to overturn hetero marriage laws based on equal protection. But getting the courts to actually rewrite the laws is ultimately doomed to failure. Our system doesn't work that way, nor should it.

Again, as always, IANAL. Comments from those more in the know, here, are welcome. Requested, even.

[liberal japonicus]

Slarti
I see your point, but I hope you realize that the process you are proposing is ultimately demeaning, I think. If a minority has to lobby for protections to be legislated, it implies that no protections exist and they have to be created. If you feel that there should be no discrimination (as I think you do) then your stance is not really fair (I'm not sure what word to use here, so please take this with some salt) While the practical process may look like this, to claim that this process is what _should_ happen is difficult to countenance if you feel that there should be no discrimination.

I'm not sure if this is an equivalent example, but imagine if each minority had to fight anew to have the same rights legislated for their group. That sort of approach is something that Japanese aimed for in the 20's, arguing that perhaps Filipinos and Chinese should be subject to Asian exclusion, but Japanese, by virtue of their superior civilization, should be let in. (this is one reason why the Immigration Act of 1924 never mentions race, it merely excludes those who were not eligible for citizenship)

You may argue that after gay people are granted such rights through legislation, there's no one else to grant such rights to, so the problem is moot, but the problem I have is that what this suggests about the spirit of the law, which is that rights (or protections or whatever you want to call them) are only guaranteed when enough pressure can be put on the legislatures to have them write laws. This makes the whole process akin to lobbying, which is a rather nauseating thought if you consider it.

Perhaps this comes down to a question of whether the law should be an instrument of social justice or not.

Another example/anecdote which I think is related in a different way, but I'm not sure exactly how to explain it. Here in Japan, the first spouse is taxed at a certain rate and the second spouse receives a very favorable tax rate up until about $10,000 dollars a year. After that, the second income is taxed at a very high rate. If the second spouse has a job that is very high powered, this tax rate can be overcome, but the effect is to restrict the second spouses options quite severely. Women's rights groups have taken this up, but the government argues that because the gender of the spouses doesn't matter, it is not discriminatory. Yet the effect is powerfully discriminatory and leads not only to women quitting their jobs when they marry, but also to employers to justify their hiring practices in terms of this.

Perhaps I am misunderstanding your argument or perhaps you feel that the above example is the same and equally unproblematic. But the effect is powerfully discriminatory and therefore, I think it is a problem that 'ideally' should be addressed not by those who are being discriminated against, but by society itself in order to make itself fairer.