A belated note regarding gay marriage

by von

I intended to post this note after some misinterpreted my brief comments congratulating Vermont for passing gay marriage "the right way" (my words).  It's safe to say that I'm a little slow.  Still, here goes. 

By praising Vermont for passing gay marriage the "right way," I implied that there was a "wrong way" to make gay marriage the law.  Some took that implication to mean that I thought that the marriages of gay folks in, say, Massachusetts -- which allows gay marriages by reason of a judicial, not legislative, decision -- were illegitimate.  That wasn't my intent, and it's my fault for being unclear.  I regard gay marriages as legitimate as my own marriage, which is of the non-gay variety, regardless of whether any state recognizes them.  If folks have a problem with that, frak 'em, as some may say. 

(Well, as some may say on Caprica.)

Still, process matters .... And here is where I reveal my Federalist Society chops.*  I don't see a right to gay marriage in the Fourteenth Amendment to the US Constitution.  (That's the logical place to locate such a right at the federal level.**)  We can get into the whys and wherefores in the comments, but suffice it to say that I tend to interpret the Constitution conservatively.  We've also had some experience with trying to divorce the Fourteenth Amendment from its original meaning.  It didn't work out so good.  The Fourteenth Amendment was foremost intended to end discrimination by slaveholders against former slaves.  That's the context, that's the history, that's the reason for the words.  This historical and literary truth was meaningless in the face of Judge Brown's creativity in Plessy v. Ferguson, however, which upheld segregation.***  

You never know who will next hold the judicial pen, or how they will use their creativity, until it is too late.  Better that process strip judges of some of their creativity, Skeksis-style.  You never get perfect justice.  Let the legislature, which is more accountable, try first. 

Process matters for pragmatic reasons as well.  The pragmatic reason to oppose gay marriage via the Courts is because Court decisions aren't lasting without public support.  See California, for instance.  See, in the case of racial discrimination, Brown v. The Board of Education.  Brown was an exactly-correct decision that belatedly corrected the stain of Plessy.  The correction, however, took decades.  And recall that Brown didn't mean a whole lot until folks made it mean something in the 1960s.  Segregation remained the rule until a lot of people bled, cried, and died to convince a majority of the country that it had to end by any means necessary.

You've always got to win the argument in the court of public opinion.  That's the road to legalizing gay marriage.  Legislation is the road to lasting victory.   Every other victory is temporary, Pyrrhic, or potentially at risk.  Don't be afraid of the fact that there is another side; that you might lose.  We are going to win the argument because we are right and they are wrong. 

Yes, sometimes, that's all there is to it.

*I've never been a member of the Federalist Society, it should be noted, but that's more out of laziness than anything else.

**I have no opinion re: state constitutions.

***Really, how much of a frakin' asshole do you have to be to pin the blame for discrimination on the folks being discriminated against?  ("We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Yeah, and I consider you to be a frakin' racist idiot, on Caprica or any other planet.)

UPDATE: Nonsubstantive edits to improve clarity.

Comments

[jdkbrown]

I know I'm occasionally snarky towards you, so let me just preface this by saying that I don't intend any snark, and I'm honestly curious as to your position.

Is there a Constitutional right to heterosexual marriage? Or could Vermont, say, suddenly decide that *only* gay people are allowed to marry?

[d'd'd'dave]

"I regard gay marriages as legitimate as my own marriage"

You haven't provided any evidence to show that your marriage is legitimate. Cite please.

Otherwise "That wasn't my intent, and it's my fault for being unclear." still applies.

[John Miller]

von, you say that you have no opinion on state constitutions, yet marriage is state defined. In Ioaw, the illegality of gay marriage was not found to be unconstitutional based upon the US Constitution, but based upon the Iowa Constitution.

So if a legislature passes a law, as it did in Iowa, and the State Supreme Court finds it in violation of the state constitution, aren't they really doing their job? Or do you believe Supreme Courts, either state or Federal cannot rule on the unconstitutionality of a law?

[Gary Farber]

"Every other victory is temporary, Pyrrhic, or potentially at risk."

But meanwhile, several million people suffer grievous harm in their lives, through lacking legal partnership with their partners, as well as lacking the sense of legitimacy most people get from being married.

Most such people, and innumerable supporters of gay marriage, don't believe people should suffer for years and years, perhaps even decades, to satisfy someone's desire to see the legislatures get around to fixing the problem.

Should Loving not have been decided, and should we, then, instead have waited for all the state legislatures to ban "miscegenation"?

Setting aside debates over whether a given right is or isn't derivable from the constitution, if we hypothetically stipulate, for purposes of discussion, that a given right exists, but has not yet been enacted or supported by a given state legislature, is it always wrong for a court to declare that such a right exists, and/or to declare a remedy? How absolute is your stance on this?

[Gary Farber]

"Every other victory is temporary, Pyrrhic, or potentially at risk."

Shorter Gary: why shouldn't people who are suffering for lack of a right take this, and worry about the next fight when it arises?

[Gary Farber]

"You haven't provided any evidence to show that your marriage is legitimate. Cite please."

It's very difficult to believe that you believe this.

The alternative interpretation is that you're saying it to be obnoxious, or, as it's called, "trolling."

[PhoenixRising]

I'm tempted to swing at this but I have a couple of deadlines at work this afternoon so:

How do you square your opinion that there is no Constitutional right to marriage (for those who want to marry someone of their same sex) with the established body of law describing the right to marry? Loving was at the end of this sequence and cites sufficiently that I'll skip it.

Point being, do you also suggest that other groups that wish the body of law derived from precedent to apply to their circumstances should first lobby their state legislature, or is this a rule that only applies to gay couples?

And: As I'm sure you know, the state in which marriage equality has been legislated had already run through the judicial route. Unless something surprising happens tomorrow in New Hampshire, the next state most likely to legislate marriage equality, NJ, is another state in which the court required the legislature to give same-sex couples rights. (We're leaving Maine out of this until later in the month...feel the homomentum?)

Are you suggesting that these decisions stalled the drive for equality, undercut it somehow, or were irrelevant to it?

[d'd'd'dave]

"several million people suffer grievous harm in their lives, through lacking legal partnership with their partners"

and further millions suffer grievous harm in their lives through legal partnership with their partners.

Solomon, what should we do?

[d'd'd'dave]

Gary:

//"You haven't provided any evidence to show that your marriage is legitimate. Cite please."

It's very difficult to believe that you believe this.//

I absolutely believe that Von has not provided any evidence to show that his marriage is legitimate. For that matter he hasn't even provided evidence that he is married.

I'm stunned you would think that is difficult to believe. Do you see evidence that I have missed?

[dude08]

"The pragmatic reason to oppose gay marriage via the Courts is because Court decisions aren't lasting without public support."

Check out this article from Gallup on interracial marriage.

http://www.gallup.com/poll/28417/Most-Americans-Approve-Interracial-Marriages.aspx

In 1968, one year after Loving was decided, approval of interracial marriage was a mere 20%. As recently as 1994, less than half of Americans approved of interracial marriage. By 2007, 77% approved.

Considering that the issue of interracial marriage is the closest analog to the issue of gay marriage, your assertion is, in a word, wrong. Moreover, my guess is that in another 10 years approval will be closer to 90%, or maybe even higher.

Now, one could argue, I suppose, that support for interracial marriage would have increased more quickly if Loving hadn't been decided. Maybe. But more likely the opposite is true. Loving made interracial marriage legal, which meant more interracial marriages. That increased visibility probably helped people see that their fears were misplaced.

And more importantly, more interracial marriages probably prevented persons born after Loving from even considering opposition to interracial marriage in the first place.

As for there being nothing in the Fourteenth Amendment about gay marriage, so what? The words "slave" and "race" are not mentioned in there either.

Conservatives would have some credibility with this kind of "process" argument if they were principled about it. But they're not. (Maybe you are, Von.) The law struck down in Heller was supported by 76% of DC residents. But strangely, I did not see even one conservative complain that Dick Heller should have relied on the political process instead of running to federal court. Funny that.

[Jesurgislac]

You've always got to win the argument in the court of public opinion.

True.

That's the road to legalizing gay marriage.

False. When gay marriage is made legal, public opinion comes round to it.

True, you still get fanatic wingnuts screaming that the sky is falling in countries where same-sex relationships are legally recognized and/or where same-sex couples are allowed to marry. But they no longer influence public opinion, because the general public can see that same-sex couples getting married aren't making the sky fall.

Further, once couples can legally marry, unless the legalization is reversed very fast, the problems involved with forcibly divorcing couples by the thousands or the tens of thousands, become such that even if the right to marry were taken away, no competent authority would want to remove the marriages that were legal at the time they were made. (As happened in California, in fact; the Attorney General was clear from the start that he did not and would not support the second half of Proposition 8.)

In short, strategically, it doesn't really matter how gay marriage is made legal. What works to change public opinion is for same-sex couples to get married. Nothing more; nothing less.

[Jesurgislac]

The anti-marriage campaign for Proposition 8 in California last year actually goes to prove my point - in case Von was thinking of citing it as a reverse. The Yes-on-8 campaign spent millions on telling a series of very elaborate lies... and won Prop8 by a far narrower margin than they had won another anti-marriage amendment 8 years earlier. They actually lost votes. (Admittedly, this may have been natural die-off: opposition to gay marriage is very strongly age-related.)

[rea]

I wonder, though, what you think "equal proection of the laws" means? Do you think there is a rational basis for not allowing gays to marry, and if so, what is it? And if you don't think there is a rational basis, how does nto allowing gays to amrry satisfy the requriemetns of equal protection?

I mean, there is no constitutional right to ponies, in the abstract, but a law that allowed some people to have ponies and not others would have to have a rational basis in order to be cosntitutional under the 14th Amendment, wouldn't it?

[Turbulence]

Process matters for pragmatic reasons as well. The pragmatic reason to oppose gay marriage via the Courts is because Court decisions aren't lasting without public support.

Is there any reason to believe that court decisions reduce public support? If so, could you explain?

See California, for instance.

I'm sorry, but I have no idea what you're talking about here. You seem to be alluding to an argument rather than making one. Do you think that public support for gay marriage in CA tanked because of a court decision? If so, can you explain why you think that? This sort of causation argument is fairly complex and you really need to show your work when your answer includes this many moving parts.

See, in the case of racial discrimination, Brown v. The Board of Education. Brown was an exactly-correct decision that belatedly corrected the stain of Plessy. The correction, however, took decades. And recall that Brown didn't mean a whole lot until folks made it mean something in the 1960s.

Would people pushing civil rights have been as successful as quickly as they were if they didn't have the Supreme Court of the United States affirming the righteousness of their cause? Do you think law abiding whites who were on the fence about the correctness of segregation would have joined the civil rights movement in the same numbers if the Supreme Court ruled against Brown?

[bobbyp]

"I don't see a right to gay marriage in the Fourteenth Amendment to the US Constitution. (That's the logical place to locate such a right at the federal level.**)"

Von,

I'm no Constitutional scholar, but it strikes me that the thrust of the "rights" ennumerated are prohibitions against the government trampling them, i.e., they proscribe government action limiting certain rights. Therefore, there need be no ennumerated "right" in the Constitution to gay marriage for that "right" to be recognized by said government if so desired. I don't think even Justice Scalia would put forth such an argument as you have stated.

As for original intent, please spare us the inchoherence of a "doctrine" that claims to divine this magical property that, would you believe, dovetails with current conservative nostrums precisely 100% of the time. Yet these same mind readers will unhesitatingly throw this doctrine overboard the minute it departs from their current conservative views-radical origins of the 14th Amendment, which see.

Whether or not a judicial decision can withstand political pressure, well, that's another matter. At the time Marshal rendered his decision in Marberry, nobody gave it a second thought....then came Jackson. There are examples on both sides of that issue.

[laxel]

Not to nitpick, Von, but you should have put in a link (how sad I link it via Wikipedia) to the Fourteenth Amendment to the US Constitution, for us non-lawyers and people that forgot:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

< / nitpick>

[matth]

rea,

If rationality alone is all a state has to show, I don't know why the state couldn't just say that straight couples are more likely to have children than gay couples. The state could then justify its marriage laws by claiming that marriage is intended to promote stable two-parent homes for children.

Obviously, straights-only marriage is pretty grossly over- and under-inclusive if providing stable homes for children is the state interest. But as long as straight couples are more likely to raise children than gay couples, I think the state still wins under rational basis review.

[rea]

If rationality alone is all a state has to show, I don't know why the state couldn't just say that straight couples are more likely to have children than gay couples. The state could then justify its marriage laws by claiming that marriage is intended to promote stable two-parent homes for children.

Of course, I kept my analysis at the most simplistic level--equal protection can sometimes be more demanding than simply a rational basis.

But, you know, speaking as a member of a gay couple who have been together 19 years and are raising 4 children, and bearing in mind the numerous straight couples who divorce, or have no children, or are incapable of having children, I have difficulty finding any of your proposed justification "rational."

[rea]

And (adding to my response to matth above), it would certainly be within the realm of rational judicial decisionmaking to conclude that your proposed justification makes not a lick of sense, even if not everyone would reach that conclusion. And if judge's are empowereed to consider and decide such matters, what the heck does the 14th amendment mean? It's hard to have patience with those who think the Constitution is merely precatory.

[cleek]

FWIW, i never thought you were implying there was a wrong way.

seems to me that anyone familiar with the debate over this (or over abortion, etc) knows that there's a distinction between rights illuminated by judges vs those drawn by legislatures, and that the latter is the more obviously democratic and therefore somewhat more preferable (though no more legal, and no more morally right).

[Catsy]

In point of fact, the question of encouraging procreation and providing the best home for children was specifically addressed by the court in the recent Iowa decision--and like every other anti-gay-marriage trope put forth, the court roundly eviscerated it.

I find myself agreeing with Jesurgislac on this one: the idea that gay marriage by court produces less legitimacy than by legislature, or that the court route hinders public acceptance of it, is pure hogwash. What changes minds is seeing thousands of gay couples get married and have marriages that are, good and bad, just like everyone else's. And the only people who think it's less legitimate are the ones who are adamantly hostile towards it in the first place. And no one who supports gay marriage rights should give a damn what they think anyway.

[von]

//"You haven't provided any evidence to show that your marriage is legitimate. Cite please."

It's very difficult to believe that you believe this.//

I absolutely believe that Von has not provided any evidence to show that his marriage is legitimate. For that matter he hasn't even provided evidence that he is married.

Actually, I have, in the form of a picture with me and the spouse. I would ask those who know how to work the archives and were around back then -- Gary, I'm looking at you -- not to locate and provide a link, however.

Of course, the salient point is not whether I'm married or not. Or, even, to whom. Hell, I could be totally gay married and the gayest gay in all of gaydom for all you know. The salient point is that I regard gay marriages as equally legitimate to straight marriages, even though I may disagree with those who believe that there is a right to gay marriage in the US constitution.

Laxel, provided a link to the 14th Amendment.

John Miller, I have pragmatic objections to the Iowa decision; not being an Iowa lawyer or familiar with the Iowa Constitution, however, I have no legal objections. (Whereof one cannot speak, thereof one must be silent is generally good advice, not matter how pretentious the source.)

To many - The Loving decision doesn't fit gay marriage. First, interracial marriage is at the heart of the 14th Amendment (which, as noted, was intended to correct racial inequalities).

Second, the equal protection clause has never been interpreted to require exact sexual equality. Sex as a protected class has always been subject to intermediate -- not strict -- review.

Third, the equal protection clause (the basis for the Loving Decision) has always been limited to less than its full scope. That's because the scope of the equal protection clause is sweeping. A five year old child is a person. Does that mean that a five year old child is entitled to the same laws as a thirty five year old? Is it an equal protection violation to deny a five year old the right to a driver's license? To drink?

The fact of the matter is that the equal protection clause becomes so broad as to be meaningless unless you attempt to read it in historical context. In that historical context, Loving is an easy decision (and correctly decided) -- but there is no obligation to extend marriage rights to same-sex couples.

[von]

if we hypothetically stipulate, for purposes of discussion, that a given right exists, but has not yet been enacted or supported by a given state legislature, is it always wrong for a court to declare that such a right exists, and/or to declare a remedy? How absolute is your stance on this?

If we leave aside the common law, or places where the legislature has not spoken (or not spoken clearly)? I hope my stance is absolute, Gary, although I don't trust myself that far. I'm not exactly a positivist.* But I do think that we need to be as true as possible to the words as written and the context for those words (albeit, not necessarily the intent of the speaker .... a little more on that later). It causes fewer interpretive problems in the long run.

[PhoenixRising]

The fact of the matter is that the equal protection clause becomes so broad as to be meaningless unless you attempt to read it in historical context. In that historical context, Loving is an easy decision (and correctly decided) -- but there is no obligation to extend marriage rights to same-sex couples.

The courts that have addressed the analogy provide a second opinion on the underlying question you're begging here. That is, whether rational basis, or some more strict form of scrutiny, applies to the case of same-sex couples wanting to marry, and whether gender is exactly analogous to race as it pertains to the fundamental right to marry the person of one's choice.

Many card-carrying members of the Federalist Society, most prominently Tony Scalia, disagree. It's an odd set of circumstances, but existing case law causes such strange bedfellows as originalists like Scalia and Evan Wolfson to agree that the flow from Loving and Lawrence can only point toward a case voiding the federal DOMA which Mary Bonuato hasn't drawn up yet. (please note that I'm not suggesting USSC justices will consistently apply their own principles to that hypothetical case, just that they have stated the inevitability of that conclusion.)

Does it bother you at all that everyone who has had the opportunity to address the question of whether the 14th applies to gay people has either found that you're squarely wrong, or used the opportunity to froth about the procreational and therefore moral inferiority of same-sex couples?

Might want to check on the company you're keeping there.

No court or litigant has made an argument for excluding same-sex couples from marriage that does not rely on their inferiority. You properly brought up Plessy, so reading both the opinion and the dissent might be in order.

[d'd'd'dave]

"No court or litigant has made an argument for excluding same-sex couples from marriage that does not rely on their inferiority."

Please elaborate on their inferiority.

[Troy]

In my real estate class, marvelling at all the state-specific laws, I finally sussed out that the main raison d'etre of the Federalist Society is full-employment for lawyers (52 sets of laws FTW!). Everything else is smoke.

As for the present argument, this from Lawrence:

"The majority decision found that "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections." Holding that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," the court struck down the anti-sodomy law as unconstitutional."

Of course, Thomas's dissent:

"but that he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution"

reveals him to be an ass since the Constitution is an enumeration of state powers not individual rights. It was this very fear of conservative/anti-liberal idiots of his like that lead to the creation and adoption of the 9th and 10th amendments in the first place.

[publius]

von - i may follow to explain. but we're not too far apart on this. for me, though, it's that empowering judges has historically resulted in very conservative, pro-capital policies.

i'm an older school progressive in this sense - very skeptical of judicial power. to me, bush v. gore is one of the most outrageous usurpations of history. no court should ever feel like it has that much power

[Tsam]

The Massachusetts court decision began to invalidate theoretical arguments (just FUD) about the consequences of gay civil marriage. Legislative and initiative politics is changing by this process faster than the anti-gay voters are bring replaced.

Because this is a situation where a right was being withheld from a group for arbitrary, grandfathered reasons, it is natural that the first experience with this right came from court decisions on legal basis.

The reason that legislative decisions now are possible is because the FUD now can be countered with experience.

(Andrew Sullivan has predicted that the trend of gay people being seen as normal -- a trend that he helped initiate -- will lead to the end of a gay culture that was based on exclusion from mainstream society. I generally believe this. It likely will lead to the pain of divorce becoming as common and visible among gays as the mainstream.)

By the way, I support religious and legal gay marriage for conservative reasons. Half-measures that recognize gay partnership without the magical word "marriage" will enable opposite-sex couples to dodge the scary parts of marriage and thus undermine it. If marriage needs defending, it is from the adultery and no-fault divorce. I do not believe that voters will ever see legal preventions from either as practical.

[Shane]

Nice, von. ty.

[Brett Bellmore]

Speaking of 'rational' basis, it should be remembered that it doesn't have anything to do with actual rationality. It merely requires that there be SOME rationale that the legislature could conceivably be motivated by that's not totally batsh*t insane. Bullsh*t insane suffices.

Laws have been upheld under rational basis in the face of proof that the rationale is wrong, or that the law is very badly written if based on that rationale.

[bobbyp]

"The fact of the matter is that the equal protection clause becomes so broad as to be meaningless....."

Ah. So that explains Bush v. Gore, eh?

[Ugh]

I don't see a right to gay marriage in the Fourteenth Amendment to the US Constitution.

And we see the problem with the way this debate gets framed.

I absolutely 100% agree with you von, there is no right to gay marriage in the Fourteenth Amendment to the US Constitution. But there is no right to heterosexual marriage in the Fourteenth Amendment to the US Constitution, either. Or at least, there is no right to have the state confer legal rights and benefits upon two people who perform the ritual of "marriage."

You mention this in one of your comments but the heart of the issue is whether, once a state or the federal government has decided to confer certain benefits upon people who get "married," the government can then deny such benefits on account of a person's sex; not whether there is some sort of right to "gay marriage" in the constitution.

So your statement quoted above should read more like: I don't see a right to be free from discrimination based on gender in the Fourteenth Amendment to the US Constitution.

Posing the question as a right to "gay marriage" cedes the terms of the debate to the bigots.

[Nate]

"Third, the equal protection clause (the basis for the Loving Decision) has always been limited to less than its full scope. That's because the scope of the equal protection clause is sweeping."

Yes. The Equal Protection clause is sweeping. That's a feature, not a bug.

[John Althouse Cohen]

This post, though it purports to be about constitutional interpretation, doesn't say anything about the actual case law interpreting the 14th Amendment.

Having a constitutional provision implies it needs to be interpreted. And you need to have a rule of stare decisis (adhering to precedent), or else the precedent doesn't mean much.

Now, look at the fact that SCOTUS recognizes gender as a protected class under the EP clause.

Look at Loving v. Va. Every adult was allowed to marry, but you couldn't marry someone of a different race. Just like every adult now is allowed to marry, but you can't marry someone of the same gender.

And look at Zablocki: the right to marry in general is a constitutionally protected right.

The argument that same-sex marriage is constitutionally required is already present in the existing Supreme Court case law interpreting the Equal Protection clause.

[Sebastian]

"i may follow to explain. but we're not too far apart on this. for me, though, it's that empowering judges has historically resulted in very conservative, pro-capital policies."

I would go further. It isn't proper to even get to the step of judging whether empowering judges has historically resulted in very conservative, pro-captial policies. Empowering judges has historically resulted in them inappropriately inserting themselves into political questions that were not theirs to decide. This has led to progressive decisions and conservative decisions, but in more importantly, illegitimate decisions that should have been hashed out in the poltical sphere, not handed down from on high.

[Patrick]

von- if you assume, just for a moment, that people who file constitutional challenges in favor of same sex marriage are sincere, that they really believe that marriage rights, as they define them, are a right protected under the state or federal constitution, then can you recognize that telling them not to use the courts is literally telling them that the constitution, at least in this regard, is an empty, worthless document?

That they live in a country in which, as they see things, the constitution protects their liberties in this manner, but the constitution is without force and should not be relied upon?

[mythago]

*I have no opinion re: state constitutions.

Since the Iowa and California decisions were rooted entirely in their respective state constitutions, this comment is flabbergasting. It's like saying "I feel strongly that we should prevent lung cancer, but I have no opinion about whether people should stop smoking."

I also get the strong impression from hilzoy's comment that she hasn't read either decision. It's spewing faux-Federalist propaganda whole. The question is not "is there a right to gay marriage" but whether same-sex-only marriage raises an Equal Protection issue, and if so, whether the state interest in question overrides that.

The federal issue re: marriage has to do with full faith and credit. Most of the country is appalled at the idea of a 12-year-old marrying a 22-year-old, but Kansas is just fine with that - and so the 12-year-old is "spouse" on her husband's 1040 form.

[von]

Since the Iowa and California decisions were rooted entirely in their respective state constitutions, this comment is flabbergasting. It's like saying "I feel strongly that we should prevent lung cancer, but I have no opinion about whether people should stop smoking."

I followed up my comment my noting my pragmatic objections to the decision.

OTOH, I'm not surprised that you're flabbergasted. It's become unheard-of to believe that expertise can't be gained by ten minutes of Googling followed by a browse through Wikipedia. I mean, c'mon: We're all experts now.

Sad, I suppose, that I continue to believe it.

[Turbulence]

I followed up my comment my noting my pragmatic objections to the decision.

These objections are completely unsupported. I note that you did not answer any of the questions I raised in this comment. If you wish to argue by assertion, by all means, go ahead, but please don't expect us to be persuaded.

[Gary Farber]

"Empowering judges has historically resulted in them inappropriately inserting themselves into political questions that were not theirs to decide. This has led to progressive decisions and conservative decisions, but in more importantly, illegitimate decisions that should have been hashed out in the poltical sphere, not handed down from on high."

These all seem to be entirely subjective judgments.

If you believe that certain civil or human rights adhere to people, or at least to citizens, then you don't agree that they should be "hashed out in the political sphere," and may instead believe that it's up to courts to uphold the rights of a minority against the wishes of a majority.

Such as in Loving, for instance.

One person's "illegitimate decisions" are another person's justice. (And vice versa.)

[SeanH]

Second, the equal protection clause has never been interpreted to require exact sexual equality. Sex as a protected class has always been subject to intermediate -- not strict -- review.

IANAL, but the the decision here in Iowa was explained very clearly in local news when the original ruling was made. The logic behind the ruling is very simple, but hasn't been explained well recently and it seems relevant.

The equal protection section in the Iowa Bill of Rights forbids the legislature from passing laws privileging any class and Iowa law requires strict review for all protected classes, including sex and sexual orientation. So, once the case was challenged the state had to prove compelling state interest and if they failed to do so the courts had to void the law. The arguments the state used to justify the same-sex marriage ban had all previously been ruled insufficient for compelling state interest for legal discrimination against LGBT folks in custody and adoption cases. They essentially asked the court to overturn precedent and diminish the rights of a protected class which is why the ruling was the unanimous slam dunk it was.

[Jesurgislac]

I think it was a Louisiana magazine that recently published a photo of a couple who were kissing as an illustration to a story on "the seven best places to smooch", or some such. The couple were not models, but an actual couple who were friends of the photographer and who had agreed to be photographed kissing. Fine, you'd think: they were a good-looking couple, clearly affectionate, having a lovely snog.

The reaction in the online comments was quite, quite startling - the loathing, the distaste, the accusations that this photograph had been staged deliberately to upset and offend people. Because it was a same-sex couple?

Nuh-uh. A man and a woman. A mixed-race couple. Forty-two years after Loving, and there's still parts of the US where, if you gave the locals the right to vote interracial marriage out of legal existance, and millions for hate groups to lie about what Loving had done and what an amendment banning interracial marriage would do - and there are probably still areas of the US where these bigots could get their way.

Which is where you really are fundamentally wrong on this issue, Von: nobody's civil rights should be dependent on their convincing the majority that it would be okay to let them have legal equality.

[PhoenixRising]

It's become unheard-of to believe that expertise can't be gained by ten minutes of Googling followed by a browse through Wikipedia. I mean, c'mon: We're all experts now.

Sad, I suppose, that I continue to believe it.

What, that your expertise extends even into fields where you clearly have not studied up on the specifics?

This is the internet and you're entitled to an uninformed opinion. You're not entitled to excuse your inability to support, extend or fight for your uninformed opinion on the grounds of your expertise in what are apparently unrelated endeavors.

The law is complex. Civil rights law is complex. Civil rights movements are complex. You're excused for not knowing it all, but now you're just being stubborn.