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February 10, 2009

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(And I actually believe a bunch of legal mumbo-jumbo about how marriage shouldn't be redefined through the courts to include gays; I prefer the legislative route, which is the conservative pro-gay marriage position to the extent there is such a thing.)

This, of course, is hogwash. Marriage is a right, not something that should be left to the discretion of the polity, if should happen to be in a charitable mood.

Von, in the mid-sixties, what was pejoratively call miscegenation was every bit as controversial as same-sex marriage is now. Do you contend that the U.S. Supreme Court overstepped its bounds in deciding Loving v. Virginia?

Von, in the mid-sixties, what was pejoratively call miscegenation was every bit as controversial as same-sex marriage is now.

Not as controversial. Interracial marriage was legal in far more states in 1967 than same-sex marriage is legal in today. And interracial marriages were fully recognized by the federal government for the purposes of inheritance, income tax status, Social Security, etc.

And I actually believe a bunch of legal mumbo-jumbo about how marriage shouldn't be redefined through the courts to include gays; I prefer the legislative route, which is the conservative pro-gay marriage position to the extent there is such a thing.

Ah. So, you believe that equal rights for LGBT people should be dependent on majority vote, and you believe that it's somehow "redefining marriage" to say that same-sex couples can marry.

Sweet of you to believe that your legal inferiors can be allowed to die for their country, Von.

Unless your sex life gets in the way of your job, you're OK. That isn't exactly the as being tolerant towards all and everything. The army isn't Vegas.

For what it's worth, as a lefty foreigner who wouldn't vote republican even if they'd have me, I sort of agree with that. After you remove the tedious rhetoric, the question has to be something like "are you fit for military duty?" If there's something about your personal life that imposes serious operational costs on the army, then probably you aren't fit. Not for any deep reasons, just a kind of incompatibility with the task.

So yeah, I'd agree that's not the same as tolerance for all, but what I don't get is why in the US it's specific to being gay. Why "gay" in particular? Why not introversion? Some introverts are really quite unable to function in a cohesive tactical unit because they/we don't "bond" right in a social fashion. Clearly, there exists the potential for introversion to pose an operational problem. So maybe the army should have a "don't ask, don't tell policy" for personality? If you can fit in without your personality being a problem then it's fine. Or maybe intelligence? Some smart people are dangerous. So should we have a close-your-eyes-and-pretend policy for that?

Obviously that's crap. So what, precisely, is special about being gay? Probably nothing. For any character trait you care to name, some people who possess it will suck in the army, and others won't. The right policy has to be to figure out what the army actually needs, and then just recruit the right people.

I guess I just can't fathom what serious (i.e., not just plain prejudice) reason there could be for thinking that "gayness" is the one thing we need to make a specific policy for. Not other aspects to sexual preference, not other aspects of personality, just... gay. It's just hard to see how this could possibly be a good faith argument, frankly.

sigh. just to be clear, when i say:

It's just hard to see how this could possibly be a good faith argument, frankly.

the "this" doesn't necessarily refer to von's counterproposal, so much as the implicit claim that there's something unique about being gay that requires a special policy over and above normal "operational" considerations that apply to hiring (i.e., the essence of "dont ask, dont tell")

"and you believe that it's somehow "redefining marriage" to say that same-sex couples can marry."

Probably because it is redefining marriage, what with "marriage" having referred to a state involving one(or more)man and one(or more)woman for pretty much the whole of recorded history everywhere. Polygamy's claim to legal recognition has to be about 10,000 times better grounded. And yet, same-sex marriage advocates are almost always at pains to "deny equal rights" any time three or more people are involved. You'd almost think their position wasn't principled, or something.

Honestly, I wouldn't think it was worth fighting over, and didn't vote for the ban when it landed on the ballot in Michigan, but establishing that judges don't get to re-write the Bill of Rights IS a cause worth drawing a line in the sand for, whether it's writing out rights liberals don't like, (Such as the RKBA) or writing in stuff that Just. Isn't. There.

Wait a few years, and win honest.

Brett: Probably because it is redefining marriage

For most of human history, and still in many countries round the world, marriage was intrinsically defined as a relationship of superior to inferior(s). A man took a woman from her first owner (her father) and became her new owner (her husband).

We no longer define civil marriage that way, in any of the countries in which same-sex marriage is legal (that's Belgium, Canada, the Netherlands, Norway, Spain, South Africa, the US, Sweden by the end of 2009, and most probably Denmark and Greenland in 2010...) or indeed in most of the countries in which civil unions equivalent to marriage are legal for same-sex couples.

The big redefinition of marriage has been happening over the past 150 years or so in both your country and mine, revising it from a relationship of unequals, in which the wife's legal identity became subsumed in her husband's, to a relationship of complete legal equality.

That is a vast change, a civil rights change: but once it has happened, only homophobia sees a reason why same-sex couples should be denied the rights, benefits, and obligations of marriage. And, though the Christian conservatives who object to same-sex marriage flail and protest and squeal their terrified homophobia like mooing cows, still: they already lost the fight for marriage inequality. This is just a rearguard action, born of homophobia, sucking in even relatively decent conservatives like Von.

On this one, I'm with Jes. Telling people to just "wait a few years, and win honest" is functionally the same as in my mind as "be a good little sambo and maybe, just maybe we'll treat you equally at some point in future."

I wonder what those who share the first point would say in regards to the Brown v. Board of Education decision.

If they approve of the methods, I wonder if the dichotomy between the two approaches is because they view equal access to education is somehow a more fundamental, universal right that is need of judicial access, and marriage is a privilege that need not be granted.

establishing that judges don't get to re-write the Bill of Rights IS a cause worth drawing a line in the sand for

Evidently, in Bellmore-World, the 9th Amendment is just an inkblot on the constitution, and the 14th Amendment was never ratified.

ebbinghaus: so much as the implicit claim that there's something unique about being gay that requires a special policy over and above normal "operational" considerations that apply to hiring (i.e., the essence of "dont ask, dont tell")

It's the asserted belief that a "normal" soldier's prejudice ought to govern what soldiers who are not "normal" are allowed to do. Fifty-plus years ago, the same arguments were used to explain why black soldiers couldn't be allowed to serve in equality with white soldiers, quite without shame on the part of the people who saw racism as a normal feeling to which they were morally entitled.

It's interesting (with reference to my comment to Brett about redefining marriage) that in the British military, the real bitter fight was in the 1990s, over whether a pregnant soldier could be "allowed" to continue in service, or if she'd have to be required to have an abortion if she wanted to continue her career. The court case determining that this was unlawful, that the UK military were not allowed to fire a soldier for deciding not to have an abortion, happened in 1992, I think: the UK military continued to pursue their policy of discharging pregnant soldiers until they had finally exhausted all appeals... and had to pay a great deal of compensation to all the ex-soldiers whom they'd fired after being told it was unlawful. (Sadly, there was no compensation offered to the soldiers who'd decided they had to have an abortion.)

So when the UK military were told their policy of discharging soldiers for being discovered to be LGBT had been declared unlawful... they just quit right away. LGBT people didn't get protection from being fired for our sexual orientation outside the military till 2003: but serving soldiers had that protection in 2000.

And I don't think it would have happened that fast if the UK military hadn't discovered how bloody expensive continuing an unlawful policy could get when they went on firing pregnant soldiers. And I'm sure the senior military hierarchy genuinely believed that their prejudice against allowing soldiers paid maternity leave and a return to work was a normal feeling to which they were morally entitled.

But in any case - regardless of Von's feeling that LGBT people are his legal inferiors, not entitled to the same degree of equality under the law as he himself - Obama's delay speaks to his own prejudices and fears about what conservative Christians and Rush Limbaugh will say, not to the issues in the military itself. If he were delaying this because he wanted to put ending torture in the military first, I'd applaud: but as he plans to continue the Bush policy of letting the US military torture prisoners, yeah: at least get rid of this source of discrimination.

I'm so tired of the "redefining" marriage chestnut, and not just because western forms of marriage have changed radically in the past couple centuries. If you look around the world and across history, all kinds of marriages have been possible. In some places, you could marry dead people. In some, women could marry other women. Nuns are married to Jesus. "Marriage" doesn't have a stable meaning. In never has, anywhere.

"Legal mumbo jumbo" is a lovely, self-deprecating way of announcing that people like me shouldn't use all possible strategies for attaining equal citizenship. And it encodes bad faith and ignorance.

rea beat me to it, but I'll wait for Brett to break his streak by pointing out which clause in the Bill of Rights forbids same-sex marriage, such that interpreting the Constitution to allow same-sex marriage is "writing in stuff that just. Isn't. There."

Decided, what's interesting is that there are actually people who believe Brown was either wrongly decided or that segregation would've been so economically disastrous if "separate but equal" was actually enforced that districts would have voluntarily have gone from dual to unitary. In either case, they argue that people would have been much better off because segregation would've died a "natural" death and there wouldn't have been so much backlash.

Of course, these scholars neglect to mention that enforcing "separate but equal" would've been nearly impossible, since it's theoretically impractical to determine what facilities are equal when they aren't exactly the same. They also neglect to mention that all white school boards, administrators and governors in the south wouldn't have followed that decree anyway. Or that the entire reason that Brown was decided was because there was empirical evidence that showed that children were being denied full educational opportunities specifically because they were segregated.

Interestingly, I keep hearing conservatives discuss the gay marriage issue in similar terms if they are "pro gay marriage." Sullivan does this all the time when he talks about letting the majorities figure it out because that's what democracies do. I respect that he's an incrementalist, but this mentality is also truly defeatist. First of all, judges here aren't "making law" or "changing the Bill of Rights." There's clear ambiguity in nearly every amendment and phrase in the Constitution. Furthermore, no conservative objected to Scalia and his majority reading and individual right into the 2nd Amendment last cycle. It's a decision I happen to agree with, but don't tell me that he was being a true "originalist" and interpreting the strict language of the statute. That's just nonsense.

Beyond that, the true conservative view (if we're looking at historical conservatism and not the bastardized version we have now) tells us to beware of a tyranny of the majority. That's the reason for separation of powers. It's the reason why the founders had us one step removed from political decisions and made judges at the federal level lifetime appointments. They didn't want them to be swayed by politics and popularity. Just because the majority wants to take away a fundamental right (like the right to marry) doesn't make them correct. We're supposed to be insulated and protected from that.

Von:

Not just losing Arab linguists, we're degrading our forces through taking on those with criminal records, low aptitude and other problematic cases.

Latest manifestations:

http://armchairgeneralist.typepad.com/my_weblog/2009/02/yeah-its-a-real-mystery.html

And yet, same-sex marriage advocates are almost always at pains to "deny equal rights" any time three or more people are involved. You'd almost think their position wasn't principled, or something.

There's actually a perfectly pragmatic reason for this: the majority of bigamy prosecutions are proxies for prosecuting for spousal abuse or child abuse or both, because the victims - be they members of Mormon polygamist sects or fundamentalist Muslim marriage culture or what have you - are deeply cowed by a culture of repression and abuse and unwilling to press charges.

Most of the liberal folks in the justice system honestly have no beef with folks who want an open, respectful three-way (or group, or what have you) marriage. However, until the majority of polygamist relationships are of that nature - and they decidedly aren't - legalizing it is intensely problematic at best.

The same concerns don't exist for gay marriage unless you're a bigot.

Wait a few years, and win honest.

What really irritates me about this when conservatives pull this line is that in practice it doesn't matter. Here in Canada, when gay marriage was legalized, it polled at 52 percent against, 44 percent in favour.

But guess what - just one year after gay marriage passed in Parliament, opposition to gay marriage cratered, with 60 percent in favour to only 32 percent against. That's over a thirty point swing! (It's even more pronounced now.)

And if you check the polling, the same thing happened in Massachusetts and Connecticut and everywhere else gay marriage has been legalized. After people live with gay marriage for six months or so, they start to wonder what the big deal was - because, beyond the extremely religious and/or homophobic subset of the populace (which is smaller than people think it is), gay marriage doesn't really matter to people on a daily basis.

Brett might know this; he might not. But "you should win honest" is just so much bull, because in reality "winning honest" is code for "wait." Not "wait until public attitude can handle it," because public attitude is actually pretty malleable and people are really a lot more tolerant about it than you'd expect. It's "wait until I can handle it," where the given value for that timespan is approximately never.

Finally, I am horribly amused that Brett "government is just organized crime by a different name" Bellmore now feels the need to lecture us about how gay people need to learn to be patient for civil rights. Apparently, armed coercion only matters when the government is demanding tax monies.

"Evidently, in Bellmore-World, the 9th Amendment is just an inkblot on the constitution,"

In Bellmore-world, the 9th amendment is neither an inkblot, NOR a blank check for judges. It's a guarantee that existing rights won't be extinguished because they weren't mentioned. New rights still need to enter the Constitution via Article V.

There are plenty of rights the government currently violates that you can make a well grounded, historically sound 9th amendment argument for. Same sex marrige ain't one of them.

Jesurgislac at 07:38 AM, a bit of amplification:

Traditionally, marriage was a matter of property and inter- family alliances. Carrying this forward, what we now call "marriage" shorthand for a set of rights/benefits regarding such things as property sharing, child custody, inheritance, power of attorney, etc, etc, etc. Under this definition there's no reason that any two (or, for that matter, more) people shouldn't be able to make whatever agreement they like.

This, of course, is the theory behind "civil unions" -- an attempt to get the effect of marriage without the verbal/religious baggage of "the M word". Problem is, I don't think that anybody has come up with a complete list of "rights" conveyed by marriage that we could use as a checklist.

Hmmm, there is a case in which the deep, long enduring, historical institution of marriage as it has existed for hundreds of years formed cornerstone of the opinion. I'm sure liberals HATE Griswold v. Connecticut.

And the 9th argument for new rights is kind of silly from a functional point of view. Do people here seriously believe that the amendment process was to be employed only for procedural issues? If all future-potential rights are in the 9th, why do we have an amendment process again? And there are a lot of amendments that look deeply unnecessary.

But this is a rather neat distraction from the issue at hand isn't it? Are Democrats, who blocked it last time, and then codified the informal principle into law so that the President couldn't just overturn their will by executive order (Sen. Nunn) going to dither again on gays in the military? I strongly suspect yes, though I hope no.

Is it defensible? Is there anyone who would like to affirmatively agree with the Obama administration that this needs more study? I'll admit they should probably pass the darn stimulus bill first, so I'm not jumping up and down yet.

lightning: Problem is, I don't think that anybody has come up with a complete list of "rights" conveyed by marriage that we could use as a checklist.

I think state and federal legislators would be startled by that assertion.

The rights conveyed by civil marriage are not written down on anything as simple as a checklist, but they are, in fact, written down in legislative form, for each state in the Union and in federal law. Without that writing, commonly known as "the law and legislation", nobody would have any "rights" in civil marriage.

The complication of setting up civil unions equal to marriage is two-fold:

One, even though the legislation simply has to read "For this section, where it says husband or wife, add 'civil partner'", this is a fearfully complex job in itself: the Civil Partnership Act in the UK is an inch thick and consists entirely of references to legislation which gives rights to married people, adding in civil partnership.

Two, even though the Christian conservatives who claim they only object to the word marriage ought to be satisfied by same-sex civil unions, it is a matter of record that where governments and legislatures give in to their pressure and agree that same-sex couples can have all the rights of marriage without the name, those same Christian conservatives then go mad with hatefilled objections to same-sex couples having identical rights to mixed-sex married couples. Or even lesser but similar rights.

So why bother? Just go directly to equality. Do not pass Go, do not claim $200, just throw the dice and move the little car and get there. There can be no exclusive monopoly on equality under the law.

This is DADT as it functions currently.

Report dated February 8, *2009*.

You'll note that it isn't Don't Ask Don't Tell (in the military). It is Don't Tell anyone, anywhere, at any point in your non-military life.

Added an update to respond to criticisms regarding my approach to legislating, rather than ordering, gay marriage. It probably won't convince anyone who doesn't already agree, but I thought it important to clarify my views.

But a few points of clarification

None of that clarifies why you believe LGBT people aren't your legal equals, Von, or why you think same-sex couples marrying redefines marriage.

By the way, it is because I think that gay marriage will ultimately depend on the people that I hold President Obama to a higher standard regarding "don't ask don't tell." President Obama has it within his power to correct this injustice.

He doesn't, not directly. Bill Clinton had the power, tried to use it (and fumbled the opportunity), and Congress took the power away, making DADT a matter of statute. President Obama could sure push for a change in the law, but he has no "power" to change it himself.

"Bellmore now feels the need to lecture us about how gay people need to learn to be patient for civil rights."

Nah, homosexuals should instantly demand recognition of all their civil rights. Freedom of speech, the right to vote, gun ownership, you name it. It's just that marrying somebody else of the same sex isn't a civil right. Maybe it should be, and I direct your attention to Article V. But it isn't right now, as the Constitution stands.

The key point here is, "civil rights" are not co-extensive with "everything good and just". They're a finite set of rights actually guaranteed by the Constitution. Which is not, you might note, a perfect document.

Much of the litigation dealing with DADT (and prior to that in the 70s and 80s) failed because the courts granted too much deference to the military-that the military knew best how to run its shop, that the court's shouldn't be meddling in internal military matters.

Of course its a crock of shit-there is only one supreme law of the land in this country. As a result, the courts tended to apply only a rational basis test to the military's irrational belief's about gays.

Allowing gays and lesbians (but, alas, probably not trans folk) in the military will also indirectly allow the Feds to recognize gay marriage-benefits are parceled out in the military on the basis of dependents, and you can be guaranteed that an openly gay and married servicemember is gonna want married BAH. So say goodbye to DOMA as well.

"For most of human history, and still in many countries round the world, marriage was intrinsically defined as a relationship of superior to inferior(s). A man took a woman from her first owner (her father) and became her new owner (her husband). "

"Owner" is a tendentious distortion. Owners can sell chattel, and husbands, at least in Common Law countries, have never been able to sell wives. Using the word "owner" is tantamount to claiming that that white parasite with the lace parasol in the big house was suffering opporession on the same level as the field hands. Disgusting and reprehensible.

Wives were wards. That's unacceptable too.

Anyway what does this have to do with DADT?

DADT is all about pandering to a certain demographic's religious preferences, which happen themselves to be heretical and therefore deviant, and have nothing to do with the combat readiness of the force. It's anti-American and unpatriotic.

"Obama's delay speaks to his own prejudices and fears about what conservative Christians and Rush Limbaugh will say, not to the issues in the military itself."

Exactly right.

"New rights still need to enter the Constitution via Article V."

Rights are neither "new" nor do they "enter" at least in America. This is not Europe where the government grants or revokes rights. The Constitution does not grant rights to the citizens which they inherently have, it structures government and restricts the scope of its power over ctizens and their rights.

Why is it assumed that the burden of proof rests entirely on proponents of equal marriage rights? What part of the Constitution is it that allows a majority to vote away the rights of a minority? What compelling government interest is served by preventing gay people from marrying?

With the US Supreme Court in the case of Colorado's Amendment 2, and with State Supreme Courts in Conn. and California ruling on marriage, it seems to me we have cases where majorities of voters have attempted to exclude gays from rights and privileges already in place, and in all those cases the courts have rightly seen that there is no rational, compelling case to enshrine that animus in law.

The question is not whether States are Constitutionally required to change their definitions of marriage, but whether they have the right to exclude gay people in the first place.

While I think there's a good case that that the Constitution doesn't mandate that individual states start conducting gay marriages, it seems that there's at least a pretty strong case that the full faith and credit clause requires states to recognize all legal marriages conducted in other states.

If states can refuse to recognize other states' marriages, doesn't this start to create enormous problems more broadly? For instance, what if a woman marries another woman in Massachusetts, then, without getting a divorce in Massachusetts, goes to Mississippi and marries a man? Who is she married to? Is she married to the woman in Massachusetts, and the man elsewhere? How do the federal tax obligations work? (Actually, how do the federal tax obligations work for anybody who is gay married in massachusetts? Can they file as a couple?)

Given that states, in addition to having differing laws about same sex marriage, also have differing laws about, for instance, what age people can get married, does this mean that if someone gets legally married in one state, another state could refuse to recognize that marriage because the person is too young by its laws? And thus allow somebody married in another state to marry again without getting divorced?

It just seems like you open yourself up to a truckload of problems by letting states regulate marriage and then letting them not recognize each other's marriages. Isn't this exactly what the full faith and credit clause was designed to prevent?

Brett: It's just that marrying somebody else of the same sex isn't a civil right.

So I've seen many conservatives claim over the past few months, but they're wrong. Marriage in the US has been established as a civil right essential to "the orderly pursuit of happiness" since 1967. Denial of marriage based on gender or sexual orientation is denial of a civil right on grounds that aren't justifiable in either law or abstract justice.

The orderly pursuit of happiness is a lovely phrase and a lovely idea, one of the many American ideals I genuinely respect. It's a shame so many right-wing Americans loathe so many American ideals, including the orderly pursuit of happiness.

It's a guarantee that existing rights won't be extinguished because they weren't mentioned. New rights still need to enter the Constitution via Article V.

There are plenty of rights the government currently violates that you can make a well grounded, historically sound 9th amendment argument for. Same sex marrige ain't one of them.

And thusly Brett illustrates the fundamental problem with conservative thinking on the 9th. Brett draws a line in the sand between "existing rights" and "new rights", apparently arguing that this is a meaningful distinction and that the former are legitimate constitutional rights covered by the 9th, while the latter don't exist and must be added to the Constitution via the amendment process.

What is missing from this kind of argument is how one distinguishes between an "existing" but unenumerated right and a "new" right that requires the Constitution be amended before it's constitutional. The entire point of the concept of "unenumerated" rights is to acknowledge the impossibility of enumerating all possible human rights and the risk that by explicitly spelling them out you are implicitly denying that the ones you list are rights at all.

Our concept of human rights has evolved considerably since the 18th century, and as we mature as a society and grow in our understanding of the world it is natural that our concept of those fundamental rights will continue to evolve. Appeals to tradition are not germane here; the question is not what have we always done, the question is what is the right thing to do going forward.

The 9th means, simply, that just because a right wasn't written down in the Constitution--whether because it wasn't thought of as a right then, or because it was so obvious at the time that it didn't need to be written--it doesn't necessarily mean that it isn't a right. Not everyone is going to agree on what such an open-ended piece of text really means. This is why we need a process to adjudicate whether or not a given concept is a basic constitutional right, or just a privilege outside of the Constitution's scope that requires an amendment in order to become a constitutional right.

Fortunately, we have such a process and a venue for it, and it works reasonably well most of the time. It's called court, and resolving this sort of question is one of the basic intended functions of our legal system.


I invite Brett to explain, if he can, how exactly he proposes we adjudicate disagreements about what our unenumerated constitutional rights even are, if not through the courts. The legislature is not the correct answer--Congress can pass laws, but the only way for Congress to define a constitutional right is by amending the Constitution. But punting this to Article V is not the answer either--if the proper process for identifying unenumerated rights was to amend the Constitution, the 9th Amendment would have no purpose.

In Bellmore-world, the 9th amendment is neither an inkblot, NOR a blank check for judges. It's a guarantee that existing rights won't be extinguished because they weren't mentioned. New rights still need to enter the Constitution via Article V.

The emphasis on "existing" is Brett's. I'm interested to know what he means by it. Does he mean "existing as of 1789"? Or perhaps "recognized as of 1789"?

I suspect Brett agrees that rights are inherent, not minted by government. We have no argument over the difference between "existing rights" and ennumerated rights. But how do we distinguish between "existing" rights and "new" rights?

Never mind gay marriage and the RKBA. Assisted suicide will loom larger than either of those over the next half-century. Guns and sex may be more fun to argue about, but death affects more people.

Like most people, I cannot imagine wanting to kill myself except in circumstances where I need somebody's help to do so. Do I have an inherent right to such assistance? Or would this be a "new" right?

--TP

Brett: Nah, homosexuals should instantly demand recognition of all their civil rights. Freedom of speech, the right to vote, gun ownership, you name it. It's just that marrying somebody else of the same sex isn't a civil right.

You can frame it that way, if you want. Or you could frame it as the right to be free from state discrimination based on your gender.

From von's DADT link :

Brian received a "general under honorable conditions" discharge, Watson said. As a result, she lost all of her benefits, including educational assistance and discounts.

I don't know what to say, since the OW posting rules forbid "f**king a**holes".

"Given that states, in addition to having differing laws about same sex marriage, also have differing laws about, for instance, what age people can get married, does this mean that if someone gets legally married in one state, another state could refuse to recognize that marriage because the person is too young by its laws? And thus allow somebody married in another state to marry again without getting divorced?

It just seems like you open yourself up to a truckload of problems by letting states regulate marriage and then letting them not recognize each other's marriages. Isn't this exactly what the full faith and credit clause was designed to prevent?"

Actually most of this jurisprudence already exists because most states don't allow cousin marrying while some do. And for reasons which were never entirely clear to me, the FFC clause has been held not to apply to them.

"What is missing from this kind of argument is how one distinguishes between an "existing" but unenumerated right and a "new" right that requires the Constitution be amended before it's constitutional. The entire point of the concept of "unenumerated" rights is to acknowledge the impossibility of enumerating all possible human rights and the risk that by explicitly spelling them out you are implicitly denying that the ones you list are rights at all.

Our concept of human rights has evolved considerably since the 18th century, and as we mature as a society and grow in our understanding of the world it is natural that our concept of those fundamental rights will continue to evolve. Appeals to tradition are not germane here; the question is not what have we always done, the question is what is the right thing to do going forward."

If this is actually correct, why do you have so much trouble passing the laws you want?

I don't know what to say, since the OW posting rules forbid "f**king a**holes".

How about promises are piecrust - easily made, easily broken?

Brett: It's just that marrying somebody else of the same sex isn't a civil right.

Actually, AFAIK, marrying somebody of the oppostie isn't a civil right either. Or, at least, isn't guaranteed by the constitution.

"If this is actually correct, why do you have so much trouble passing the laws you want?"

Because most people are bigots?

Nah, homosexuals should instantly demand recognition of all their civil rights. Freedom of speech, the right to vote, gun ownership, you name it. It's just that marrying somebody else of the same sex isn't a civil right.

Brett, I see no daylight at all between this position and the opposition to Loving v Virginia. Change 'the same sex' to 'a different race'. You merely have a different prejudice than those who argued for laws against miscegenation.
von- likewise, Im curious as to why you find the comparison to Loving 'inapt'. It's unclear why you would claim that the 13th, 14th, and 15th amendments explain this position- the 13th amendment abolishes slavery, but says nothing about race or any other rights, the 14th promises equal protection but says nothing about race, and the 15th deals with race and *voting* rights, specifically. The 13th and 15th don't appear to have any application whatsoever (and I didnt notice any reference to them in the text of the Loving decision, either fwiw).

I suppose one could read the 14th amendment as forbidding anti-miscegenation laws but not anti-gay-marriage laws, but not through the text itself- by claiming that marrying across racial lines is a fundamental right, but marrying across gender lines is not. There is no textual support for this position in the Constitution though- it is a prejudice brought to the Constitution about what constitutes a fundamental right. Or, rather, *who* deserves fundamental rights and who does not.

Sebastian: Actually most of this jurisprudence already exists because most states don't allow cousin marrying while some do. And for reasons which were never entirely clear to me, the FFC clause has been held not to apply to them.

Really? How bizarre. Can you cite? Not out of disbelief, at least not out of the bad disbelief: but seriously, if first cousins marry in Massachusetts, where it's legal, then move to Louisiana, where it's not, the state of Louisiana will regard them only as a cohabiting couple, though the federal government will still recognize their marriage as valid? In order to get a divorce, if they decide to divorce, do they need to move to a state that recognizes cousin marriage? And given that about 1 in 1,000 marriages in the US are (by this site) first cousin marriages, why has no site I've looked at mentioned this big exception to the FFC clause?

If this is actually correct, why do you have so much trouble passing the laws you want?

Sebastian, you're a smart guy and I find it hard to believe that this is a serious question. You of all people should have a keen grasp of the many ways in which our laws lag behind current cultural norms--see drug policy for another good example.

As a lawyer you should also be far more aware than your pithy comment suggests of how the norms of the nation as a whole don't necessarily translate into laws that are defined at the state level.

The real answer is complex and more suited to a full post than a comment, but the shorter version isn't too far from what jdkbrown said. A nontrivial segment of Americans simply think, when you boil it all down, that gayness is icky and wrong, and have an influence in elected government far out of proportion to their actual numbers, simply because gay-bashing is one of the few remaining "acceptable" bigotries.

If the FFC applied to marriage, the Lovings could have traveled to a sane state to marry and then returned to Virginia. It did not, so they were forced to file a lawsuit instead.

Carleton, I try to read the Amendments (and the Constitution itself) as plainly as possible in the historical context that it was passed. (This admittedly puts me at odds with some USCT decisions, but we're not talking about what the law is, here, but rather what it should be.)

The EPC is often cited as a source for a Constitutional right to gay marriage. It reads: "[N]or" shall any state "deny to any person within its jurisdiction the equal protection of the laws." Think about how broad that statement is if you read it without reference to the rest of the Amendment or the context in which it was passed, which is what you have to do in order to find that it applies to gay marriage.

Your response is to read the EPC as limited to fundamental rights. That's fine, but where is the list of fundamental rights? Is there, for instance, a fundamental right to marry the person whom you love? If the question was simply one of access to marriage, there wouldn't be a violation. Gay folks have access to marriages -- just not marriages that they would be happy in (i.e., opposite-sex marriages). But such a right would be enormously overbroad, and if applied would lead to the exact parade of horribles that many conservatives predict (poly-marriages, marriages between brothers and sisters).

Moreover, limiting to right to marry the one whom you love to only immutable characteristics doesn't get us there. (It's also not the basis for the Loving decision.) Does that mean that the case for gay marriage stands only for them who can establish that they are 100%, completely gay, always? What does that mean? Can I deny a gay woman a marriage if I establish that, at any period in her life, she had genuine feelings of affection and love towards a member of the opposite sex? Is that grounds for dissolution, annulment or divorce? If it turns out that, contrary to current thinking, being gay can be altered or is primarily the product of nuture rather than nature, does the right disappear?

The Loving Court rejected the Virginia statute because racial "classifications [are] so directly subversive of the principle of equality at the heart of the Fourteenth Amendment". In other words, the Loving Court did what I do -- look at the context of the 14th Amendment and its passage in assessing its scope. Folks who are arguing that the 14th amendment requires states to recognize gay marriages are misreading Loving -- not applying it.

Again, I want gay marriage to be the law of the land. And I intend to win the argument with the folks who are against it. But I am not going to subvert the Constitution just because the ends are just.

The Loving Court rejected the Virginia statute because racial "classifications [are] so directly subversive of the principle of equality at the heart of the Fourteenth Amendment".

I don't think it's that much of a stretch from there to "sexual 'classification [are] so directly subversive of the principle of equality at the heart of the Fourteenth Amendment."

I'll admit to not having read Loving since law school.

"Does that mean that the case for gay marriage stands only for them who can establish that they are 100%, completely gay, always? What does that mean? Can I deny a gay woman a marriage if I establish that, at any period in her life, she had genuine feelings of affection and love towards a member of the opposite sex? "

I have no idea what this braincrash of irrelevant nonsense has to do with anything.

Hey Von- life is short. I'm forbidden from marrying the person I love. You approve of this. End. Of. Story.

For what it's worth, many if not most gay people have dealt with prejudice forever, our relationships have always been scorned and disrespected by the straight majority. Legal recognized marriage would be nice, but what grates on me is when straight guys like yourself pontificate on gay marriage as if YOU were the one who gets to have a say in whether recognition-by straights- will be granted. There's this weird idea of condescending magnaminity. Either you recognize loving gay relationships or you don't, either you respect us and our lives or you don't.

All this consultation of the what the Founding Fathers would say is just less than useless. You're against gay marriage, own it, admit it. You're against me having the thing drunk people in Vegas do all the time. To you, Britney Spears 48 hour marriage is fine, but a lifetime gay partnership needs to be verbally put in 3rd class.
Thanks for telling us we can be cannon fodder though.

Just to be clear, Obama can't change DADT by executive order, right? It's law now, and Congress needs to change it?

Is there, for instance, a fundamental right to marry the person whom you love?

Von, I know you're married, and I presume that the person whom you married was someone you chose to marry, and she chose you. I wouldn't dream of asking if you chose her because you loved her and she loved you: that's way too personal. But at no point, because you are heterosexual, did any state legislature or 7officious religious bigot stand in your way and say "No, you can't marry her. You can be married, of course. All you have to ditch the woman whom you chose to be married to, and pick someone in a category we will decide is appropriate for you to marry."

The argument that "Gay folks have access to marriages -- just not marriages that they would be happy in" is actually an argument that "gay folks" can be told, smugly, that they're not allowed to marry the person they chose to marry. It's about love for the couple involved: a love too great to be given up just because smug small-minded bigots tell them they must. But for principled people who believe in personal freedom and loyalty - which obviously doesn't include you - it's about not telling your neighbor "There are certain rights, privileges, and obligations we will permit you to have if, and only if, you ditch the partner who loves, trusts, and honors you in favor of one we approve of."

Which is why, unless you tell me you'd be perfectly happy for your home state to forcibly divorce you from your wife and remove your parental rights to your child, I say you regard LGBT people as your legal inferiors. Good to enough to die for you: not good enough to have their honor and loyalty respected.

"Just to be clear, Obama can't change DADT by executive order, right? It's law now, and Congress needs to change it?"

You'd think so, wouldn't you? But apparently he can take over the Census bureau on his own say-so, even though statute says the bureau is run by the Secretary of Commerce.

Laws don't mean much when the only people the courts are willing to admit have standing are of the same party as the President.

You're against gay marriage, own it, admit it.

It seems to me that von has said unambiguously several times that he's for it. I disagree with the position that Loving doesn't apply here or that marriage is not a fundamental right, but he's said several times that he is, in fact, in favor legalized gay marriage.

I am in favor of eg a carbon tax, but I wouldn't be in favor of a court 'finding' such a tax in the 3rd amendment somehow. Process matters.

Lighten up a bit, Jes. Von is coming at this from a position of good faith. That you and I disagree with some of his premises and the his view of the Constitution's scope does not mean he doesn't "believe in personal freedom and loyalty", a slur that probably borders--if not outright crosses--the line of character attacks. To say nothing of mind-reading.

Speaking as someone who largely agrees with your politics, your reflexive contempt and counterproductive presumptions of bad faith on the part of conservatives get really tiresome. What part about telling someone they don't really believe in kittens and mom and apple pie do you imagine is at all likely to persuade someone that their reasoning is in error?

Is there, for instance, a fundamental right to marry the person whom you love? If the question was simply one of access to marriage, there wouldn't be a violation. Gay folks have access to marriages -- just not marriages that they would be happy in (i.e., opposite-sex marriages).

The exact argument applied by opponents of the Loving decision- everyone had the right to marry someone of the same race, so there was no violation of equal protection.

You wrote a great deal, and yet nowhere in it do I find a statement where I cannot substitute easily substitute "race" for "orientation" and find a coherent defense of anti-miscegenation laws.
(Counterpoint, there is no stopping on the slippery slope to poly-marriages either, IMO. In a way this entire agrument is contained in this slope. But folks like me (ie unlike Brett) who are in favor of freedom for everyone aren't scared of poly-marriages etc).

In other words, the Loving Court did what I do -- look at the context of the 14th Amendment and its passage in assessing its scope.

The 14th amendment passed in 1870. Funny that it took so very long for everyone to realize that anti-miscegenation laws were inherent in it's context and passage...
If you're going to be a relativist, be a relativist and admit that the USSC from 1870-1950 would not have ruled as they did in 1967, because the right to marry across racial boundaries is not inherent in the 14th, it is there by dint of our current recognition of complete equality among the races & that our interpretation of the 14th will continue to change over time along with our understandings of personhood, equality, etc.
Or be a strict interpreter and admit that neither miscegenation nor gay marriage would've been seen as rights under the 14th at the time of it's passage and therefore neither are legitimate.
But of this mismash of the two, where you claim the status quo is literal interpretation (of text and context) but any new innovations are not legitimate, I say "so then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth."

The Loving Court rejected the Virginia statute because racial "classifications [are] so directly subversive of the principle of equality at the heart of the Fourteenth Amendment".

This is, I think, the crux of your argument. That is, racial classification is subversive to the principle of equality before the law, but classification by orientation is not.

I can I suppose recognize that you might feel this way for some reason, but I fail to grasp how you can claim that this is the only possible reading of the amendment, and that anyone who differs is misreading Loving. At a minimum Loving leaves this as an open question upon which we can disagree without either claiming a mandate from the Court.

"The 14th amendment passed in 1870. Funny that it took so very long for everyone to realize that anti-miscegenation laws were inherent in it's context and passage..."

Nah, you might want to look up the history of Pace v Alabama; People did understand the 14th amendment to prohibit anti-miscegenation laws, and began challenging them in court immediately. And WON.

It was only with the end of Reconstruction, and a judiciary determined to render the 14th amendment toothless, that the courts re-addressed this issue and declared anti-miscegenation laws constitutional. Along with damned near everything else the 14th amendment had been adopted to prohibit... But this wasn't the original understanding of the 14th amendment, it was a rather open exercise in judicial bad faith intended to defeat it: If we're to take THOSE cases seriously, the 14th amendment wasn't intended to do ANYTHING.

When it comes to the history of the 14th amendment, and the Supreme court, you really have to remember that: The post-Reconstruction Court wasn't making a good faith effort to interpret the amendment, they were trying to BURY it. And succeeded so well at that effort that it didn't get dug up again for better than half a century.

"Sebastian, you're a smart guy and I find it hard to believe that this is a serious question. You of all people should have a keen grasp of the many ways in which our laws lag behind current cultural norms--see drug policy for another good example."

I think that there may very well be dominant cultural norms in the future that would allow for gay marriage and/or a very different drug policy.

I certainly hope so.

That is completely different from asserting that such cultural norms already exist in the US. In fact you're a very smart person, yet I find it incredible that you would make such an assertion.

First, although I appreciate the defense, Jes has every right to be pissed at me. As she rightly points out, it's very easy for me to worry about process when the substance doesn't impact me.

That said, I am sincere in my support of gay marriage. Gay marriage is probably one of the half dozen or so things in my grab-bag of ideals that I'll go to the barricades on. (I'm pretty sure that gay marriage joined the no-compromise grab bag in '99 or '00, when I was doing some pro bono work for Lambda Legal Defense. Before that I was a squishy well-maybe-gay-marriage-but-why-aren't-civil-unions-enought? And admit it: so were a lot of y'all.)

The argument that "Gay folks have access to marriages -- just not marriages that they would be happy in" is actually an argument that "gay folks" can be told, smugly, that they're not allowed to marry the person they chose to marry.

No. The context for my quote was my reading of the US Constitution. The words of the US Constitution are critically important, and adhering to its process is equally so.

I think I recall that you're from the UK (Scot?); and, tho' a stereotype, my experience is that many in the UK don't get why a lot of folks in the US make the Constitution a kind of embalmed, unchanging fetish. Myself included, of course.

The reason is that there is no common US creed but for the Constitution. From way back in the bad old days, the US has been far more heterogenus than almost anywhere else on Earth, whether measured by attitudes, ideals, aspirations, race, religion -- you name it. Still is. And, yet, its been successful. That's unbelievable. The only places that have a comparable mix of folks are, well, Lebanon and they look like, well, Lebanon. Fine place and all, great people, but mind the bombs please.

So I'm very cautious when it comes to novel readings of the Constitution. And the case for finding a right to marriage for gay folks in the Constitution is a novel reading, however just or rational some might find it.

Carlton makes a strong point:

Loving held that racial "classifications [are] so directly subversive of the principle of equality at the heart of the Fourteenth Amendment".
and if Loving is not to extend to gay marriage, one must conclude that
racial classification is subversive to the principle of equality before the law, but classification by orientation is not.

I'm not sure that's right, however. Let me add that it is literally true that most of my best friends are gay, and I generally agree with the pro-gay marriage judicial decisions. But I do see a relevant difference between interracial marriage and same-sex marriage.

It's easy enough to declare that marriage is a fundamental right, essential to the orderly pursuit of happiness. It is harder to say what that right consist of, exactly. For example, does my right to marry necessarily imply a right to divorce? Probably not. Does my right to marry include a right to the kind of wife I see on TV (ususually pretty or at least adept at repartee)? Definitely not (drat!).

Fortunately, we don't have to define it if all we are doing is taking away an exception. The Court merely said, whatever marriage is, Mr. & Mrs. Loving, you two can try it. It was pretty clear that marriage could exist between members of different races -- it already had in many states for a long time. All the court had to do was ask whether equal protection demanded equal access to marriage.

Gay marriage is trickier, because marriage in the U.S. has uniformly been an opposite sex relationship. Indeed, there are few other constant elements. Marriages can be, or at some times could have been, about love or finances, by voluntary choice or parental arrangement, child-rearing or not, mixed finances or not, with or without dowry, strictly monogamous or 'open', with or without option to divorce, with or without sex, etc. The only constant elements seem to be:

special privileges (which ones vary);
dyad;
human;
post-pubescent;
alive;
mixed gender.

Sure, we can take any of those elements away by law, and we can still call it marriage if we so decide. But is it up to the courts, or the people, to decide how to define the institution? Does the Constitution require that we call it "marriage"?

An analogy: say a deaf person sues under the ADA for the right to participate in school activities. Which activity? Why, the choir. But, people protest, he can never learn to sing on key! Well, says the lawyer, I wouldn't want to ruin the songs, we'll meet you halfway. Make a reasonable accommodation, create a non-singing choir part, let him play a drum. Drums, say the school, are in an orchestra, not part of a choir! Well, says the lawyer, they are now. But, but, but, says the school, can we at least call it a drum choir or something so people won't be confused? Absolutely not, says the lawyer, that would stigmatize my client, who has always dreamed of being in the choir. If you change the name, you ruin his dream.

It's a silly analogy, and I don't mean to trivialize the issue. But when people recite "I believe marriage is between a man and a woman," I think the point they're trying to make is that same-sex marriage is an oxymoron or at least a different thing, like 'soy ice cream' or 'synthetic fur.' From the point of view of social conservatives, us libruls are making them change the way they define the single most important relationship in their lives, in the name of abstract equality, and we're not even doing it by vote, we're foisting it on them by court decision. I have little sympathy: separate just isn't equal, and the name does matter.

Still, it's not quite the same thing as Loving. We are changing the institution, not just who can be in it. Can courts do that? I think so, others don't. It's not obvious who is 'right' and which approach is better for constitutionalism.

Catsy: That you and I disagree with some of his premises and the his view of the Constitution's scope does not mean he doesn't "believe in personal freedom and loyalty", a slur that probably borders--if not outright crosses--the line of character attacks.

Wait: Von argues that loyalty and personal freedom are irrelevant to LGBT people, but I'm the one guilty of a character attack? Huh. Okay.

But when people recite "I believe marriage is between a man and a woman," I think the point they're trying to make is that same-sex marriage is an oxymoron or at least a different thing, like 'soy ice cream' or 'synthetic fur.'

Yeah. They're arguing that for them, marriage isn't about making a legal and loving committment to the one person they want to spend the rest of their lives with: it's about putting a man and a woman into the same cage so they can breed.

The Crafty Trilobite: We are changing the institution, not just who can be in it.

Actually, you have that exactly backwards. If you create a separate institution called "civil partnership" you are changing the institution: if you remove any restriction that requires married couples to be one man/one woman, you are changing who can be in it.

No homophobe has ever been able to explain how come their heterosexual marriage is really truly different now that Joe and Bob down the street are married too. That's because there is no change to the institution - unless you're a mooing homophobic bigot who's having a cow about it.

Jes: ...the Civil Partnership Act in the UK is an inch thick and consists entirely of references to legislation which gives rights to married people, adding in civil partnership.

I don't wish to make any specific comment about the actual issue, but this kind of technical difficulty can be easily avoided by writing legislation into form: Entering into civil partnership has the same legal consequences as wedding. Disbanding civil partnership has the same legal consequences as divorce. Any statement in a law or decree which relates to marriage relates also to civil partnership.

Such blank statement is used by the Finnish act establishing homosexual civil unions. It works.

Actually we had a very interesting case arising from the equal but separate concepts of civil union and marriage. The Finnish legislation prevents a transgendered person from changing sex without the permission of his/her spouse or civil partner. If the spouse or partner agrees, the marriage is transformed into civil partnership and vice versa. In a recent case, the transgendered husband wished to change sex into woman. As devout Christians, both spouses believe in permanence of marriage. Thus, the wife did not want to transform the marriage into a civil union, as she doesn't consider herself a Lesbian. They filed a complaint, charging that the law violates their human right to marriage. The Supreme Administrative Court upheld the law, stating that civil partnership is possible for hetero- and homosexuals alike, and that as the two forms of cohabitation are equal, the legal transformation of the name of the form is immaterial to the persons concerned.

The equal protection clause is not, as some above suggest, limited to fundamental rights. Rather, it prohibits government classifications without a rational basis. Classifications that infringe on fundamental rights are subject to stricter scrutiny. But at a minimum, in order to conclude that gays ought not to be allowed to marry each other, while straights can, you have to find a rational basis for that result. You won't be able to, unless you want to conclude that "gays are icky" is rational.

Wait: Von argues that loyalty and personal freedom are irrelevant to LGBT people, but I'm the one guilty of a character attack? Huh. Okay.

I defy you to quote the part where Von argues that "loyalty and personal freedom are irrelevant to LGBT people", or those words arranged in any other fashion.

The first and only person in this thread to use those words in that way was you. That is your summary, your paraphrase of what you think Von is arguing. It is not Von's argument, it is a bad-faith misrepresentation that twists his words into what you seem to believe he really thinks, and makes the dishonest claim that that is what he's actually arguing.

Gay marriage is trickier, because marriage in the U.S. has uniformly been an opposite sex relationship.

I guess I see it differently than that, which explains a great deal of our difference: marriage is a relationship, with certain legal protections, benefits, duties, etc. Skipping polygamy for the moment, it involves two people, permanency, often cohabitation, often sex, mingling of resources, certain responsibilities for the partner, etc.

The only difference between a married straight couple and a married gay couple is that the straight couple do the sex thing slightly differently (although obviously there's a ton of overlap here). Everything else is exactly the same. And sex isn't a requirement for marriage in any case.
So rather than looking at the historical social definition, Im thinking about the functional aspects. With couple A, there's love, cohabitation, mingling of resources, raising of children, etc. With couple B, there's love, cohabitation, etc.
But couple A puts tab Y into slot Z. Couple B puts tab Y into slot X (and also sometimes into Z, and Q, etc). Being able to put tab Y into slot X makes the second couple eligible for this fundamental right. Not being able to put tab Y into slot X (lacking a slot X to work with), the first couple is denied the right.

We live in a world where male and female are legally equal and moving towards social equality. Equality is where one item can be substituted for another without changing the underlying equation (ie your boss can be male or female without change in the underlying business relationship).

Final point: in a world with umpteen different kinds of transgenders, do we really want to have to establish tests to determine who qualifies as male or female & thus deserves the marriage right? That seems a necessary consequence of limiting the right in this manner. Do marriages where one partner crosses the line (ie gender reassignment) become dissolved? And when, exactly, does this occur? Can the state mandate gender checkups for married couples to ensure that they are in compliance with the gender code?
To me, that something so draconian could be within the right (and I think your position implies it) suggests that the right is not being viewed properly. Like censors reading every line of a newspaper to weigh it against social need or somesuch- if the government must be involved to this degree, then it's not a right, it's a privilege granted and withheld at government whim.

Nah, you might want to look up the history of Pace v Alabama; People did understand the 14th amendment to prohibit anti-miscegenation laws, and began challenging them in court immediately. And WON.

Yet, from wikipedia: Pace v. Alabama, 106 U.S. 583 (1883), was a case in which the United States Supreme Court affirmed that Alabama's anti-miscegenation statute was constitutional.
So, you appear to be correct, except for the "WON" part- they lost, almost every time. Apparently there was a brief period (1872-74) when the Democrats lost control of the state court and this was overturned, but it was overturned again 2 years later. The USSC didn't rule either way during that brief period.
Are you arguing that this was a consensus position of the late 1800s concerning miscegnation, based on a single state court case that was effectively overturned two years later? By this standard, you must think that Roe v Wade is far more proof of consensus concerning abortion rights in the modern era.

That there were people challenging the status quo at the time is good, but unremarkable. That the USSC didn't see a 14th amendment violation falls exactly in line with what I was already saying ie that the consensus at the time the 14th amendment was passed didn't find a right to marry across racial lines there. It was found later, in conjunction with our changes in perception of those racial boundaries.

When it comes to the history of the 14th amendment, and the Supreme court, you really have to remember that: The post-Reconstruction Court wasn't making a good faith effort to interpret the amendment, they were trying to BURY it.

That is, the people who wrote the law didn't interpret it correctly, the 'real' interpretation was waiting for the modern era, and any future modifications in our understanding would be innovations on that ancient but only-recently-understood amendment.
It's just downright hillarious watching your contortions here trying to pretend that your interpretation is the "real" one, based on some radicals who managed to control one state court for two years. There were people decrying slavery as a moral wrong at the founding of the Republic, but that certainly isn't evidence that the consensus at the time believed it to be wrong.

Von argues that loyalty and personal freedom are irrelevant to LGBT people, but I'm the one guilty of a character attack? Huh. Okay.

Let me raise your "huh?" with a WTF? Where did I argue that loyalty and personal freedom are irrelevant to LGBT people?

"Gay folks have access to marriages -- just not marriages that they would be happy in"

Exactly. What gay people face is not really analogous to Loving, it is more as if the law mandated black people could marry anyone other than other black people.

But at no point, because you are heterosexual, did any state legislature or 7officious religious bigot stand in your way and say "No, you can't marry her. You can be married, of course. All you have to ditch the woman whom you chose to be married to, and pick someone in a category we will decide is appropriate for you to marry."

Funnily enough we did have laws that did just that, and they had nothing to do with race, at least for the first few thousand years. marrying between classes was looked upon with horror - "confusion of ranks" it was called, and it would sure to mena the end of civilization. We got rid of these miscengenation laws finally because we saw they were barbaric.

Von, you wrote: " If the question was simply one of access to marriage, there wouldn't be a violation. Gay folks have access to marriages -- just not marriages that they would be happy in (i.e., opposite-sex marriages)."

Let me unpack this for you.

For every individual person who wants to get married, there is an individual person ke wants to marry; and this person wants to marry ker. (Neuter pronouns used for the sake of argument.)

Your argument here is that Chris - let's say - is not being discriminated against because Chris could just ditch ker personal loyalty to Robin, who wants to marry Chris, and also ditch ker personal freedon - ker decision to marry Robin, and instead of Chris and Robin getting married at city hall as they long to do, Chris could just find someone - anyone - of the opposite gender, and wed that person.

So, yes, Von: you are arguing here that LGBT people are not being discriminated against because personal loyalty and personal freedom are irrelevant to LGBT people. What did you think you were saying, when you argued that there's no fundamental right for same-sex couples not to be allowed to marry because one of them could always ditch the other one and find someone else who is on the US government-approved list for them to wed?

Where did I argue that loyalty and personal freedom are irrelevant to LGBT people?

I think it was right after Jesurgislac allowed that she just wanted to sabotage the religious rights of some Godbotherers.

Oh, what fun it is to put words in other people's mouths!

"there's no fundamental right for same-sex couples not to be allowed to marry"

oops, grammar glitch.

"What did you think you were saying, when you argued that there's no fundamental right for same-sex couples to be allowed to marry because one of them could always ditch the other one and find someone else who is on the US government-approved list for them to wed?"

What did you think? Can you think what it would be like to be divorced of your wife by government fiat and told that this was perfectly okay, not discriminatory at all, because, after all, you could always abandon her and marry someone whom the government was prepared to approve of?

Slarti: Oh, what fun it is to put words in other people's mouths!

Right, because you, like Von, think it would not be discriminatory at all if the government divorced you from your wife, took away your parental rights in your children, and told you that you could just abandon her and your former children and find someone government-approved instead.

Oh, what fun it is to jeer at the queers.

Oh, yeah, I should lighten up.

I have two friends in California in the middle of what may be a very painful divorce. It's painful because they don't want to get divorced: they only just got married, after living together for eight or nine years.

Ken Star wants them to get divorced. Von wants them to get divorced, though he doesn't even know them, because they got their right to be married via the courts, not the legislature like they were supposed to.

They don't want to get divorced. But Von doesn't think they have a right to stay married, and Von thinks this isn't discriminatory because they could just ditch each other and go marry someone else.

Jesus Christ, Von, this is just one couple I happen to know. There are thousands more people whose marriages you are so blandly and smugly writing off, and assuring me that this si not discriminatory at all and I just don't understand the passion Americans have for their Constitution. Well, goddamn, Von: I don't think you can possibly comprehend the passion either of my friends have for each other.

No one said you have to understand what marriage can mean to two people who want to commit their lives to each other and thought they already did. But at least you could acknowledge that's a blind spot for you, when you argue that being divorced by fiat is just the Constitutionally right thing to do to people who didn't pick a government-approved spouse.

Right, because you, like Von, think it would not be discriminatory at all if the government divorced you from your wife, took away your parental rights in your children, and told you that you could just abandon her and your former children and find someone government-approved instead.

Oh, what fun it is to jeer at the queers.

More words-in-the-mouth games. I'm guessing this is a drinking-game thing for you, because you're making no sense at all, while attributing points of view to others that they don't express themselves.

And can the victimhood; it doesn't suit you.

Let me unpack this for you.

No: you don't get to do that for other people, unless you're bound and determined to misstate their position. Which, it sounds like that's exactly the case. Still, you only get to unpack that for you.

Now, von may very well come along and tell you that your interpretation is 100% correct, but I don't trust your ability to color in for other people, particularly considering your spectacular lack of success doing just that over the last five years or so. Possibly longer, but I haven't been witness to any further back than 2003 or so.

Jesurgislac, lots of things we passionately hate are constitutionally permissible, or even required. Many people hate pornography with a passion that passeth my understanding - yet they have to live in a world where their kids can see live sex acts on the internet, and they may have a strip joint next door. Many people passionately believe I will go to he!! when I die because they were not allowed to kidnap me and baptize me as a baby. Yet again that dern Constitution forces them to stand by and watch. They may even have to watch their own children convert and incur damnation because I can walk around mocking their idiot faith, or because the school they pay taxes for won't declare its truth, or whatever. And so forth.

Why are your friends' passions especially privileged?

And by the way, please note that at this point, the mainstream debate in most states has moved to whether separate but equal is okay, not whether intimate, passionate, homosexual relationships can be denied the formal privileges of marriage. IOW, the debate is over how much difference the word "married" makes. One might reasonably ask why it matters so much to your friends that they be "married" and not "civilly partnered" if the simple word "marriage" isn't important. And if the mere word is that important to them, you should recognize that many religious conservatives feel the same way.

You cannot prove the constitution is wrong by your feelings. Myself, I feel passionate about the Constitution. I disagree with Von as to what it requires - I think the Equal Protection Clause does in fact require gay marriage, for basically the reasons Carleton stated upthread. But not because I feel so sorry for the people who are hurt by the law.

You know, it's ironic: I was at a political meeting last night where a man told me, very emphatically, that we needed a written bill of rights in the UK in order to better protect our basic, fundamental rights.

Yet here Americans are earnestly arguing that it's so unfortunate, but the Constitution prevents LGBT Americans accessing basic, fundamental rights, on account of the right to freely choose your partner even if they're of the same gender, isn't mentioned in it and so isn't covered.

I remain convinced (as I said to him last night) that the best protection for basic, fundamental rights isn't a bible to be referred to with godlike authority - since, as Von and Brett and the Crafty Trilobite here demonstrate, that can be used to deny basic rights as readily as it can to access them - but raising kids who have the kind of take-no-crap-from-anyone attitude: activists who won't pay attention to any biblical authority, whether that's Leviticus or the US Constitution, that's being used to tell them they have no right to equality.

Why are your friends' passions especially privileged?

The difference is that the passions you describe -- hating pornography, wishing people into hell -- are only sublimated by requiring that their holders not meddle in other people's lives and choices.

In the case of Jesurgislac's friends -- and I know people in roughly the same situation in California -- their passions are sublimated by not only allowing other people to meddle in their lives, but by using the law to require the state to meddle in their lives.

I am not a lawyer. Perhaps someone who is, or someone who knows the law could answer this question for me: how does the Tenth Amendment relate to this issue? I thought the Tenth was written in to keep people from interpeting the the other Amendments as a list of restrictions ( as list of the ONLY rights given under the Constitution). I thought that the Tenth was there to indicate that we are individually assumed to have powers not restricted to the government. In other words the Bill of Rights is a set of limitations on the power of government, not a set of boundaries on my freedoms.

But, as I said, I'm not a lawyer.

Right, because you, like Von, think it would not be discriminatory at all if the government divorced you from your wife, took away your parental rights in your children, and told you that you could just abandon her and your former children and find someone government-approved instead.

Jes, are you a loon? As in, a bird who lacks the ability to read? Because I've been repeatedly said the opposition. Of course all of what you describe is discriminatory. That's why I'm against it. But it's not discrimination that's addressed in the 14th Amendment to the Constitution.

You know, it's ironic: I was at a political meeting last night where a man told me, very emphatically, that we needed a written bill of rights in the UK in order to better protect our basic, fundamental rights.

On of the arguments against a bill of rights at the time of its adoption by the US was that it would, by implication, limit the rights that Court can recognize.

Because I've been repeatedly said the opposition.

Not at all. You argued, in fact, that you believed in the "mumbo-jumbo" that means you support the divorce of my two friends in California, and that you think it's not discriminatory because either of them could just ditch the other to marry someone else.

Are you a loon? I read and understood what you wrote. Did you understand it, or were you just regurgitating conservative talking-points without comprehension?

On of the arguments against a bill of rights at the time of its adoption by the US was that it would, by implication, limit the rights that Court can recognize.

As, in your eyes, it clearly does...

"Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. "

"First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection."

Thanks, Doctor King. Maybe - you never know! - Von will listen to you....

Jes, I'm fairly certain that you and Von are talking past each other. Near as I can tell--and feel free to correct this--Von is saying, "I think X is wrong, but I do not think it's unconstitutional as the Constitution is written." Jes is saying, "X is wrong and unconstitutional, and if you argue that X isn't unconstitutional you're also arguing that it is okay."

The problem is that this isn't what Von is arguing at all. I don't think you and Von--or many of us, for that matter--disagree that if a court rules again SSM that it allows discrimination to continue. This doesn't mean one /agrees/ with the discrimination, it is simply a recognition of the legal reality that exists, regardless of how we might wish it to be.

You can find a useful parallel in drug laws. I think our drug prohibition is not only morally wrong, but ineffective as well. I think you could even make a Pursuit of Happiness argument for the unconstitutionality of the criminalization of recreational drugs, but I wouldn't want to try to argue it in court myself.

That said, it's critical to draw a distinction between an expressed opinion about the legality or constitutionality of a thing, and one's personal opinions of whether that thing is right or wrong. No matter how wrong I think our drug laws are--and they are very, very, wrong indeed--the fact remains that many drugs are controlled substances that are against the law. Stating that fact, or noting that even if medical MJ is lawful under state law the DEA can still prosecute you federally, does not mean I am arguing I think those laws are just. I am simply expressing my viewpoint of what the law says.

This is a distinction you need to learn to identify, Jes. It is at the heart of why you repeatedly poison SSM threads by trying to tell conservatives what they really think long after they've exhaustively pointed out that they don't actually think that.

As it happens, I strenuously disagree with Von's interpretation of the Constitution as applied to SSM. But that's neither here nor there as concerns what he actually thinks about gay marriage.

It is at the heart of why you repeatedly poison SSM threads by trying to tell conservatives what they really think long after they've exhaustively pointed out that they don't actually think that.

*shrug*

You may not have noticed, but Von is doing the equivalent of arguing that not only is someone with MS smoking marijuana for pain relief breaking the law, but because they are breaking the law they should be prosecuted and punished for breaking the law.

Note also Von's claims that it's somehow not discriminatory to tell someone in a same-sex partnership to find someone else if they want to get married, and that it's somehow wrong for LGBT people to seek legal redress through the courts... oh, and the lovely bit about how it's "redefining marriage" for same-sex couples to get to marry?

Yeah, Catsy. I'm poisoning the thread, because I point out what Von's regurgitating. Von's vomit is not poisoning the thread, because this kind of crap is just normal crap that LGBT should respond to politely.

You may not have noticed, but Von is doing the equivalent of arguing that not only is someone with MS smoking marijuana for pain relief breaking the law, but because they are breaking the law they should be prosecuted and punished for breaking the law.

Not that I should wade into this any further, but I think he's actually saying that someone with MS smoking marijuana for pain relief is breaking the law, and is likely to be prosecuted and punished for it, even though he thinks they should not be; but that if he wants them not to be, he has to change the law, not just interpret existing law. But I can't read von's mind.

Except that Von is arguing that if a person with MS is taken to court for smoking hash for pain relief, and the judge rules that in fact this person is not breaking the law and people with MS are in fact allowed to smoke marijuana for pain relief if they wish, Von thinks that the judge oughtn't to have done that because the US Constitution makes no reference to people being allowed to take drugs to relieve pain.

Not that I can read Von's mind. I'm just going by what he's writing here, when he's not squeaking frantically that he didn't mean anyone to take a look at what he was saying and apply it to the real world.

Wonkie,

Unfortunately, I brought the 10th up at a legal site, and the basic answer is that since it doesn't enumerate specific rights, it's too hard to fight for rights that haven't been officially named. IIRC, someone noted that no or almost no SC decisions rely on the 10th for their logic.

However, I wonder if that is why so many other rights are given as extensions of other amendments, even tortuously? Maybe the 10th's effects are the equivalent of all the others' penumbras?

The 10th Amendment only applies to the federal government, not the States, and most of these cases arise under state law. In our constitutional/federalist scheme, the federal government is (supposedly) one of limited powers, i.e., it can only do what the constitution says it can do, and the bill of rights was enacted to ensure that the federal gov't would not infringe on the specific rignts enumerated therein, and others not so enumerated.

The states, OTOH, generally have to power to do anything not prohibited by the federal and their respective state constitutions (and federal law in certain circumstances). If the 10th was incorporated against the states, which is hard to do given its language, then you might see more 10th amendment cases. This is part of the reason why "so many other rights are given as extensions of other amendments, even tortuously", these are state cases and there is no 10th A. hook.

Also, I would note, that the 10th A.'s flaw is one that is akin to what my copyright professor pointed out with respect to so-called "reserve" (IIRC) clauses in licensing contracts, where a contract contains a clause stating something to the effect that "no rights not granted to the licensee by this contract are licensed to the licensee." The problem with that is the only way to figure out what was "reserved" is to look at what was licensed, and all the time is spent interpreting the scope of the licensed rights. Same with the 10th A., to figure out what was reserved you have to interpret what was given away, and so most cases focus on the latter.

Yeah, Catsy. I'm poisoning the thread, because I point out what Von's regurgitating. Von's vomit is not poisoning the thread, because this kind of crap is just normal crap that LGBT should respond to politely.

It's almost as if you didn't actually read my comment. I can only repeat: you need to learn how to differentiate between expressing an opinion about what the law says, and expressing an opinion about whether that is right or wrong.

Von has expressed an opinion about what the Constitution says. He has expressed clearly that he does not believe that this is a morally preferable outcome, simply that it is what the Constitution says.

Your stubborn insistence that he doesn't really mean what he's saying in the face of repeated corrections does, yes, poison the discussion. And this isn't the first one.

Not that I can read Von's mind.

Which hasn't stopped you from claiming that you know exactly what he really means when he says X.

I'm just going by what he's writing here

Oh, the hell you are, Jes. You're only going by what he's written when you can cherry pick or paraphrase it to suit your argument. Anytime what he's written actually contradicts your point, you either ignore it or claim that he /really/ means Y when he says X. I really don't know how much clearer you can get than this:

Von: Of course all of what you describe is discriminatory. That's why I'm against it. But it's not discrimination that's addressed in the 14th Amendment to the Constitution.

What on earth is ambiguous about that? Nothing about this statement suggests that Von /approves/ of what's going on in California, or thinks it's a just outcome for those affected. Nothing about this statement suggests that Von /agrees/ with the law as written, any more than by noting that medical MJ is against federal law am I approving of the injustice of it.

when he's not squeaking frantically that he didn't mean anyone to take a look at what he was saying and apply it to the real world.

This statement has no basis in fact. It is completely without substance and I feel dumber for having to address it.

If you want to examine someone's argument and point out that interpreting the law that way has specific real-world consequences, that's perfectly legitimate. It's also a bit redundant, as the above quote makes it perfectly clear that Von understands and opposes the real-world consequences of the law. More to the point, it can--and should--be done without groundless assertions that that person approves of the consequences you describe.

I don't make a habit of doing this, but since you're not getting it when it's embedded in a longer argument, and you haven't gotten it from five years of these discussions:

ARGUING THAT A THING IS TRUE IS NOT THE SAME AS ARGUING THAT IT IS RIGHT.

For crying out loud, figure out the difference already. Engrave it somewhere if you have to. You're not stupid, and this isn't really a tough concept. These are two entirely different premises and your insistence on conflating them when arguing with Von or Sebastian about SSM is most definitely at the heart of why these threads go so sour. And you seem to be about the only person here who doesn't get that.

Fair enough, Jes. I tend to agree with you on the topic at hand, anyway.

Von, I agree that if we look at the Fourteenth Amendment in its historical context and (also, therefore) together with the Thirteenth and Fourteenth, we may think a judgement like Loving could only reasonably be made in relation to race. (Or we might think the Loving judgement said that because that was the case it was deciding... .) But then, we might also think (and judges might decide) that the Amendment's provisions could not apply to women (despite the wording of Section 1), and indeed, I believe, it was not till 1971 that its equal protection provisions could apply to sex discrimination. Now, though, they are held to do just that. I therefore see little strictly legal-constitutional warrant for a refusal to apply the provisions to discrimination on the grounds of sexual preference.


I want to add that I do not see you as opposed to gay marriage.

I therefore see little strictly legal-constitutional warrant for a refusal to apply the provisions to discrimination on the grounds of sexual preference.

This is the wrong frame. As von notes above, the ban on same-sex marriage does not discriminate on the grounds of sexual preference, i.e., it keeps two heterosexual men from marrying just as much as it keeps two gay men from marrying. The proper frame is that the ban discriminates on the basis of sex.

This is a much easier argument to make and win.

On of the arguments against a bill of rights at the time of its adoption by the US was that it would, by implication, limit the rights that Court can recognize.

Right. Which is why I find the general conservative approach to the 9th Amendment so baffling, honestly. Doesn't erring on the strict side of identifying what rights are constitutionally guaranteed run afoul of that precise concern?

ugh, thank you. But then I think I'd say 'no strictly legal-constitutional warrant'.

I take it back. An argument on sex discrimination grounds would meet a similar counter argument, would only be easier in that it would encounter less prejudice.

"Doesn't erring on the strict side of identifying what rights are constitutionally guaranteed run afoul of that precise concern?"

If we were operating strictly in the realm of negative rights, where adding a new right would only have the effect of further restricting the scope of government activity, I might be inclined to agree. But with the acceptance of positive rights, which end up binding private citizens, too, I don't think it can be accepted as a general principle that adding new "rights" necessarily results in a net increase in liberty. That's very much something to be assessed on a case by case basis.

Anyway, as a procedural matter, I really do believe that the 9th amendment only serves to secure those rights which were generally accepted at the time of it's adoption. It's not a blank check for the judiciary, you'd never have gotten it ratified if anybody thought it was.

You know, part of the reason for writing constitutions down is to keep them from being changed without formal process. And if you can change them for the better informally, you can change 'em for the worse that way, too. The idea of informal constitutional change is a really, really dangerous one.

If we were operating strictly in the realm of negative rights, where adding a new right would only have the effect of further restricting the scope of government activity, I might be inclined to agree.

Which is, after all, what gay marriage is: Restricting the ability of government to decide who can and can't get married.

Which, after all, given the various legal implications of marriage for how other private citizens have to treat you, is NOT what same-sex marriage is.

But I was primarily objecting to the general principle. Under a system of positive rights, increasing one person's rights can reduce the rights of others, sometimes severely, so you can't really have a presumption in favor of increasing positive rights, the way you can with negative rights.

given the various legal implications of marriage for how other private citizens have to treat you

could you be more specific here, what are you thinking of?

Also, shouldn't you be objecting to the whole idea of gov't sanctioned marriage? Maybe you are.

It's a wonder your head doesn't twist off, Brett, the way you spin it around to take different positions on just how much fealty we owe our Mafia protecion racket. Depending on who stands to benefit, sometimes it's everything, sometimes it's none at all.

If it were any other case of the Mafia treating people differently based on an innate characteristic -- let's say, hypothetically, skin color, and call that treatment "shmaffirmative shmaction" -- you'd be the first one in line telling them to stop.

In this case, they're giving heterosexual people preferential treatment at the expense of homosexual people, and you shrug and say, "Too bad! Pay the mob like everyone else if you want protection!" (Even though, of course, they already DO pay the mob.)

And all because, if gay people were allowed to do the same thing straight people do, it would require hospitals to let their spouses visit them and require probate courts to honor their wills.

Despicable.

But how is this relevant to the discussion, Brett?

For GLBT people, the freedom to marry is a negative right, if I understand your definition of positive/negative rights correctly: removing legal barriers to same-sex couples marrying protects GLBT people from government interference in their choice of marriage partner.

And GLBT people are the only people directly affected by this government interference. Once a same-sex couple are married, obviously there is a legal obligation on private employers and service providers to treat them as a married couple, but this is the same obligation that they already have for mixed-sex married couples, so it makes no difference to their positive rights.

Except for bigots who think of their need to harass and discriminate against GLBT people as a positive "right", of course, but who but another bigot would care about them?

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