Gay Marriage in Massachusetts?
After much fuss (including a lecture from the Supreme Judicial Court), the Massachusetts legislature voted today to allow voters to determine the fate of same sex marriage in the Commonwealth.
Although the legislature’s vote is only the first among many before the Massachusetts Constitution is amended to ban gays and lesbians from marrying, it is a huge victory for opponents of same sex marriage.
ECS: Perhaps, just perhaps, it’s a victory for the voting public of MA, those who actually ought to have a say in whether Gay marriage should be foisted on the people by judicial fiat–or whether it’s something the people themselves decide.
Comment by Guy Murray — January 2, 2007 @ 4:14 pm
Ah, but that’s the question, isn’t it? Many same sex marriage opponents would agree with you, but supporters would contend that marriage is a civil right and as such should not be subjected to the whims of the popular vote.
Comment by ECS — January 2, 2007 @ 4:19 pm
This is an important step. The left wants to cut the people out of the process but we need to be cut back in.
Comment by al_miller — January 2, 2007 @ 4:20 pm
2. Yes the left will just keep on inventing civil rights and keep on cutting the People out.
Comment by al_miller — January 2, 2007 @ 4:21 pm
Yes, Al. We don’t need no more stinkin’ civil rights!!
Comment by ECS — January 2, 2007 @ 4:22 pm
Except there’s no body of constitutional or other law, that suggests “gay” marriage is any right at all. You and I both know that “right” was made up out of judicial whole cloth. I am distinguishing between the fundamental right of marriage, and a non-existent right of “gay” marriage.
Comment by Guy Murray — January 2, 2007 @ 4:27 pm
and where the hell’s Saddam when you need him?
Comment by Guy Murray — January 2, 2007 @ 4:28 pm
Guy, I’m persuaded by the reasoning the courts followed to strike down anti-miscegenation laws, despite the lack of constitutional precedent permitting interracial marriage. I haven’t heard a convincing explanation why gays are any less deserving than blacks to marry the person of their choice.
Comment by ECS — January 2, 2007 @ 4:36 pm
ECS, Gays are free to marry, as long as it’s a person of the opposite gender. Individual courts, which have reasoned as you suggest (I think only the MA court has so reasoned) are in the extreme minority. I don’t want to take up an incredible amount of space disputing the anti-miscegenation law argument, so please see the post here, where the CA appellate court shows why those laws don’t apply to gay marriage.
Furthermore, assuming you are asking for a “new right” a new fundamental constitutional right as it were, rights that are so “objectively, ‘deeply rooted in this Nation’s history and tradition,’ [citations] and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ –then I think it most certainly needs to be addressed legislatively or by a vote of the people–not one or two judges who have driven off the deep end.
The right you’re talking about has never existed–so it’s a bit difficult for folks to swallow that it meets the above criteria.
Comment by Guy Murray — January 2, 2007 @ 4:48 pm
ECS,
Unfortunately, Guy does not have a convincing explanation to your question. Those that are against gay marriage cannot argue logically as to why it should be banned. They can only resort to tradition. They also refuse to acknowledge that they messed up the institution of straight marriage through easy divorce, out-of-birth wedlocks, and adultery. If they want to strengthen marriage then they need to criminalize those things. But they refuse to even give consideration to that and instead want the gays and lesbians to be the scapegoats for their own sins by denying them the same basic right that they misused.
And it doesn’t hurt them that they can tax the gays and lesbians at the higher single taxpayer rate to finance all the government programs used to combat the societal ills associated with the easy divorce, out-of-wedlock births, and adultery.
Gays and lesbians only make up 5% to 10% of the population but supposedly we are the reason for 90% of society’s ills.
Comment by Michael — January 2, 2007 @ 4:51 pm
Michael,
That’s what the law is Michael–tradition, precedent, stare decisis. The fact is that the history of civil rights is not on your side of the argument.
That’s right Michael, I’m a 43 times divorced, out of wedlock father of 50, who regularly adulterates with any woman who catches my eye. Not only that I’m a homophobe–so naturally my legal arguments would mean squat!
Give me a break!
Comment by Guy Murray — January 2, 2007 @ 4:57 pm
Thanks, Guy. I remember that post – it was very well written. I believe there is a sufficient basis in the U.S. Constitution to extend the right to marry to gays and lesbians. The U.S. Constitution protects marriage as a “fundamental” civil right, and I believe that gays and lesbians deserve to participate in the fundamental civil institution of marriage.
Comment by ECS — January 2, 2007 @ 4:59 pm
Guy,
So you do agree that all of the political, legal, moral and secular effort being expended on banning same sex marriage would be more productively put to use in fighting easy divorce, out-of-wedlock births, and adultery? Please refer me to the numerous posts you have done in arguing these items. I would be interested in reading them. I already am familiar with the amount of time you spend on the same sex marriage issue.
Thanks.
Comment by Michael — January 2, 2007 @ 5:01 pm
Hate to leave the party early but it is 5:00 pm on the east coast and I have an Elder’s Quorum Presidency meeting to attend. Talk to you later.
Comment by Michael — January 2, 2007 @ 5:03 pm
Michael: Enjoy your EQ party.
ECS: I have no disagreement with you that marriage is a fundamental right. But, that’s not what is really at stake. I understand you to be arguing for a new fundamental right, that is, making gay marriage a fundamental right. All I am saying is that there’s little to no judicial precedent for that “new fundamental right.” Therefore, the better course when creating such a new fundamental right is to have the legislature, or better yet the people decide it by a vote. This is what I understood the point of your post to be. And, that you probably didn’t think the people should be left with that responsibility.
I’m not saying the people couldn’t create such a right. They probably could if they wanted. I think it should be left up to them is all.
Perhaps I just don’t understand your argument. I am suffering from Saddam burn out.
Comment by Guy Murray — January 2, 2007 @ 5:13 pm
Was the overturn of anti-miscegenation laws the invention of a “new fundamental right?” Did the Supreme Court “invent” the right of individuals to marry a person of another race “out of whole cloth?”
Just how many supposed “sins” should we legislate against by a public vote? Let’s see….LDS believe it is sinful to drink coffee. Notwithstanding the fact that no other religion shares that tenet, should we put a constitutional ban on coffee drinking to a public vote? After all, people have no recognized “right” to drink coffee, do they? Why should they have any right to do what is permissible within their faith, if it goes against yours? Hurry! Gather those signatures, and spend millions of dollars in a campaign to see that the public votes to make drinking coffee illegal!
While we’re at it, I do believe there’s a religion somewhere that requirs nuptuals to be celebrated outdoors, and in total nudity. By golly, we’d better get a ballot initiative to keep those LDS folks from having indoor wedding with their clothes on! After all, if we can get the majority to pass such an initiative, that’s all that matters! Anything else would be “inventing” a right for LDS “out of whole cloth!”
Hyperbole? Of course, but some people are so unable to see past their own noses, that hyperbole seems the only way to get their attention. All most gays and lesbians are asking is to have the same legal rights for their families—including their children–that are enjoyed by other citizens. The fact that you (or even a majority of voters) happen to think I’m a “sinner” has no bearing on what my rights are as a citizen.
Comment by Nick Literski — January 2, 2007 @ 6:44 pm
Polygamy is a fundamental right in about half the world and has been well known and accepted for thousands of years. I, for one, am glad that it is not recognized as a fundamental right in the US and most of the rest of the developed world.
The gays say that their cause is different but I don’t think it is. I think that there is just as much basis for a “rights finding” court to call polygamy fundamental as it is to find gay marriage fundamental.
This is why these rights should be based on the will of the people. Any thing else is tyranny.
Comment by al_miller — January 2, 2007 @ 6:48 pm
So, your argument comes down to (a) you prefer that polygamy be illegal, therefor (b) people should only have the right to practice polygamy if the majority of voters approve of it?
Following that logic, there are many religionists who would just LOVE to outlaw LDS-ism. After all, they would prefer that LDS-ism be illegal, since they believe it’s a dangerous false religion. Therefore, nobody should have a right to be LDS, unless the majority of voters agree it’s okay!
Allowing those LDS to be LDS without a majority vote of approval would be TYRANNY!!!!
Comment by Nick Literski — January 2, 2007 @ 6:53 pm
First, let’s keep the histrionics to a minimum, and any ad hominem attacks (including personal accusations of bigotry) will be deleted.
Fundamental civil rights should not be subject to popular vote. That marriage is a fundamental right is well established, and I’ve already said that I see no material legal difference between allowing interracial marriage and allowing same-sex marriage.
In the interests of full disclosure, I can’t in good conscience oppose same sex marriage -Â not only because of legal reasons – but also because of my personal relationships and experiences with my gay friends. Just this morning, I chatted with a good friend who found the perfect wedding rings for his upcoming marriage to his partner of eight years, and this afternoon I made plans to go to the movie “Dreamgirls” with another gay friend (woo-hoo!). My close personal friendships have biased my perspective on this issue to the extent that I have extreme difficulty understanding why gays and lesbians shouldn’t be granted the same privilege to marry the person of their choosing as heterosexuals are.
Comment by ECS — January 2, 2007 @ 7:25 pm
What you are calling “histrionics” is, as I said, hyperbole to make a point.
I don’t believe I made any ad hominem attacks, let alone accused anyone of bigotry. If I did, please feel free to point it out to me, as such was not my intention.
Comment by Nick Literski — January 2, 2007 @ 7:41 pm
Nick and ECS: In my opinion you can’t compare the cases which the overturn anti-miscegenation laws with these cases which seek to re-define marriage. Those cases dealt with the restriction a state might place on a fundamental right, the fundamental right to marriage. Courts have routinely stated that marriage is a fundamental right. The recent California appellate court which considered gay marriage (see link above) began its analysis of fundamental rights confirming that marriage per se is in fact a fundamental right. All citizens, including prison inmates, have the fundamental right to marry the person of their choice. This is exactly where the same-sex couples asked the court to conclude their analysis. While marriage per se may be a fundamental right, the state has always placed reasonable limitations on that right including age restrictions, blood relatives, and polygamy. To take a line from that case, which I particularly enjoyed:
I believe the concurring justice in CA case explained quite clearly just why those the racial laws are not the same as restrictions on the definition of marriage, which is what is at issue here:
The courts rightly found that racial restrictions did not pass constitutional muster. But, they were not dealing with the definition of marriage.
Comment by Guy Murray — January 2, 2007 @ 7:49 pm
ECS; I would also add that you speak of fundamental rights. You either do not or will not distinguish between fundamental right to marriage which is a long held and protected fundamental right, vs. a new fundamental right you would like to be created–preferably by judicial decree.
Do you agree there is no fundamental right to “gay” marriage. Please cite me to some authority that has established and protected that right.
Comment by Guy Murray — January 2, 2007 @ 7:52 pm
Guy – racial restrictions on the fundamental right to marry are now considered impermissible, but as you know, anti-miscegenation laws were fairly common before Loving. Incidentally, it’s inapposite (not to mention disrespectful) to compare marriage between consenting adults of the same sex to someone choosing to marry her dog. The question of polygamy is more difficult, but references to beastiality as being similar in kind to same sex marriage are unwarranted.
In any event, neither the opinion you cite nor your comments so far distinguish the substantive differences between the constitutional invalidity of racial restrictions versus the restrictions based upon sexual orientation.
Comment by ECS — January 2, 2007 @ 8:21 pm
ECS:
That begs the question about whether they were the same as current laws and long standing case law on the traditional and legal definition of marriage as between a man and woman.
I didn’t make the comparison. I merely referenced a line in the court’s opinion that I liked, and that was simply making a point–as was I. That point is that one does not have an unfettered right to marry whom ever one wants. You are making the comparison to bestiality not I. Nor was that ever my intent.
See, I don’t see it as an argument on a restriction to marry–but rather on the definition of marriage. I think there’s a distinction there i.e., a substantive difference if you will.
You really haven’t answered my question about whether you believe same sex marriage is a fundamental right, and if so what legal authority you would proffer supporting that position.
Would you agree with me that the legal definition of a fundamental right is a right that is:
Perhaps that’s where we need to start.
Comment by Guy Murray — January 2, 2007 @ 8:48 pm
Guy, the bestiality reference was to this quote that you mentioned you enjoyed:
I’m not sure how you (or the court) can completely dismiss the connection between a statement of someone marrying their dog and bestiality, but I guess it’s possible.
With respect to the definition of marriage, again, most people pre-1967 would have agreed that the fundamental right to marry did not encompass the right of a black man to marry a white woman.
I agree that a state may impose reasonable restrictions upon marriage, however, I also agree with the Goodridge opinion that there is no reasonable basis upon which to exclude homosexuals from marrying each other.
Comment by ECS — January 2, 2007 @ 9:39 pm
ECS
I’m aware of the quote to which you referred. And, it remains a quote I enjoyed.
Because I’ve now told you twice that it never even entered my mind–though it has yours for a second time. Just as it never entered my mind that there would be a connection between that statement and incest–i.e., having sex with one’s aunt, or the even more absurd thought, a rose pedal, June 29, or a sunny day. Why don’t we move on?
We seem to be talking past one another. I’m happy to address all the other statements you’ve made–but first what I’d like to know from you is:
1. Do you agree with this analysis and definition of a fundamental right as outlined by the U.S. Supreme Court in Washington v Glucksberg 117 S.Ct 2258:
You have two choices–yes or no.
Comment by Guy Murray — January 2, 2007 @ 10:45 pm
I should have explained myself a bit better in my earlier comment – perhaps this makes things more clear:
Marrying a dog = beastiality
Marrying an aunt = incest
Marrying the date of June 29, a rose petal or a sunny day = mental incompetent unable to enter into a valid contractual relationship
Marrying someone of the same sex = ?
Do you believe that someone who chooses to marry someone of the same sex is either mentally incompetent or engaging in socially dangerous behavior akin to incest or beastiality? Because one of these things is not like the other in this list here.
Answering your question about the definition of a fundamental right, I choose yes.
Comment by ECS — January 2, 2007 @ 11:16 pm
ECS:
Marrying a dog ≠beastiality
Marrying an aunt ≠incest
Marrying the date of June 29, a rose petal or a sunny day ≠mental incompetent unable to enter into a valid contractual relationship
That’s my mathematical rendition. I still think that one sentence you have latched onto in the court’s opinion (which as I’m certain you are most definitely aware was dicta) was meant really only to make the point that there are restrictions the state can and does place on marriage. And, I think we are both in agreement (to a certain degree) the state can and does do that.
IF, one had or has a tendency to engage in beastiality one would not need to marry a dog, etc., etc.
No
Yes; but, this is a religious and moral argument, not a legal argument, which is what I believe we are debating.
No–but again I don’t really see how that fits in. I was never making, and am not now making the connections you have described in your mathematical equations above.
Yes, but that’s not really in the legal argument realm is it? I thought we were discussing the legal arguments here.
Since you agree that a fundamental right is one defined by the U.S. Supreme Court as :
Do you then agree that same sex marriage under this definition is not, has not, or cannot be considered a fundamental right?
Comment by Guy Murray — January 2, 2007 @ 11:38 pm
18. Nick Nick hello Nick let’s be real.
Comment by al_miller — January 3, 2007 @ 12:24 am
Lets say this eventually goes to a vote in Mass. I would bet that the states electorate would vote in favor of SSM. Thoughts?
Comment by bbell — January 3, 2007 @ 11:55 am
al_miller:
I am most certainly being “real.” I simply gave an example of how your logic plays out, that would be “close to home” for you. Absurd? Of course it is—just as absurd as your example was.
Guy:
You are being rather careful in how you frame the question. As you acknowledge, there is a fundamental right to marry the person of your choice. THAT, my friend, is as far as the analysis need go. Instead, however (and you’re not alone in this), you ask a separate question of whether there is a “fundamental right to gay marriage.” In framing the question this way, you avoid the impact of the existing case law. Anti-miscegenation laws were once upheld via the same rhetorical trick, i.e. “is there a fundamental right to interracial marriage?”
Since interracial marriage had not been “long recognized,” etc., it was NOT found to be a “fundamental right.” Eventually, in *Loving*, the Supreme Court overruled itself, and acknowledged that the earlier framing of the question was inappropriate. The same thing applies in regard to same-sex marriage. You wish to argue thusly: (a) society does not have a long history of recognizing same-sex marriage, therefore (b) it doesn’t fit the definition of a fundamental right, so (c) we should continue to discriminate at will. The argument is circular, at best., and comes down to nothing more than religious tradition.
The proper analysis, however is (a) marriage to the person of one’s choice is a fundamental right, therefore (b) society cannot legally deny this right without showing a compelling interest on the part of the state. (c) The state has no compelling interest in preventing gays and lesbians from exercising their fundamental right to marry the person of their choice. Therefore, (d) they must be allowed to exercise that fundamental right, regardless of their gender or sexual orientation.
Comment by Nick Literski — January 3, 2007 @ 12:27 pm
Forgive me if this ground already covered, but can someone explain to me what exactly is so threatening about same-sex marriage? I hear all of this talk about “protecting” marriage…from what?
Comment by Chris Williams — January 3, 2007 @ 12:30 pm
Nick, that’s a fair analysis of the issue, but you could take it one step further – as the Goodridge court did – and state that there is no reasonable (rational) basis to prohibit gays from marrying. This reasoning (summarized in this excellent, but brief, article) avoids the sticky situation of creating a suspect class based upon sexual orientation/preference (which is an important issue in and of itself, but perhaps best saved for a separate case).
Chris, I don’t understand how gay marriage threatens heterosexual marriage. In fact, gay marriage _strengthens_ meaningful societal relationships, allows for more personal responsibility, and encourages long term relationships. I think the common misperception/stereotype/fact of homosexuals (especially gay men) having mulitple sexual partners and short relationships is one result of their inability to marry each other.
Comment by ECS — January 3, 2007 @ 1:07 pm
I agree with you, ECS, but the “rational basis” test is very easy for the government to win. In Washington, for example, the court went for a “rational basis” of encouraging child-bearing and raising children in heterosexual families. In short, marriage in Washington is nothing more than one giant breeding program.
Of course, the logical extension of that is to deny marriage licenses to ANYONE, until they can provide proof of current fertility! Funny how they didn’t take their “legal reasoning” that far.
Comment by Nick Literski — January 3, 2007 @ 1:30 pm
ECS, I agree with you. I think advocating same-sex marriage is, in many respects, a “conservative” position. The objections most people seem to have with SSMis based in religious condemnation of homosexuality (and the “yuck” factor many people have with homosexuality, particularly male homosexuality).
Comment by Chris Williams — January 3, 2007 @ 4:23 pm
Nick & ECS: I can understand how as proponents of SSM you both would like to see the American judicial system implement the practice, regardless of the consequence to the legal system. It’s much easier to re-write public policy through the stroke of a pen in a legal opinion without the legitimate legislative or initiative (i.e., voter) process.
Loving, is not like the cases that are deciding SSM. No matter how many times you want to make the comparison, and in fact do make that comparison, it will just never be so.
Loving involved the criminalization of marriage based on racial restrictions. Loving did not involve statutes that involved the definition of marriage. In Loving, the married couple were actually convicted of criminal conduct. There is nothing at all factually similar to the cases that are discussing statutes which define marriage.
The reason, Nick, I frame the question the way I do, is that is the way the question needs to be phrased in a legal analysis. Loving did not analyze, as you suggest a fundamental right to interracial marriage. Rather, the question was whether there was a fundamental right to marriage. Of course, the court answered that question in the affirmative.
In the cases dealing with the definition of marriage the question remains: is there a fundamental right to marriage? Again, the answer is affirmative; however, that is not where the analysis ends. Since the real question in the marriage definition cases involves the definition of marriage, not the criminalization based on race–the courts must address whether marriage, i.e, a long held fundamental right means a fundamental right SSM.
Of course, the answer is no, as SSM has never been considered a fundamental right, and fails the legal test and definition of what is a fundamental right. Furthermore, from a legal perspective, same gender attraction SGA (whatever that exactly means) is not at all like having a racial characteristic such as African-American, Hispanic-American, Asian-American, and many, many other forms of ethnic heritage) In other words, in my analysis SGA is not a suspect class, as is say being Black, or Hispanic, or name your ethnic background.
As the CA appellate court it its opinion noted about Loving:
And, of course they would. The are grand canyons of difference between the Loving cases, and the ones being heard today about the definition of marriage. Courts today are being asked to re-write literally thousands of years of the definition of marriage–something about which the Loving cases had absolutely nothing to do:
So, if you recognize that what you really want to do is re-define marriage, I think you need to ask the question, who legitimately gets to do that? This was what I thought the purpose of ECS’ post to be–to debate the merits of whether the people themselves or through their representatives are the ones to decide the definitional aspects of marriage, or whether unelected judges should legislate that from the bench.
That said, I have absolutely no legal issue with allowing people the right to vote on marriage’s definition. Indeed, I think that is how the question ought to be answered. That is all I am saying. I am making legal arguments, not moral arguments.
If a majority of the good folks in MA, or CA, or any other state want to define marriage to allow SSM, then more power to them. At least putting the matter to a popular vote will give the “new” institution a legitimacy that is entirely missing in what you want to see the courts do in actually re-writing legislation from the bench and changing the traditional definition of marriage that has stood for thousands of years.
As far as the moral implications, well we have a difference of opinion. That’s just fine. You have a God given right to your moral opinions, as do I. But let’s be very clear here: I’m not asking that courts uphold the Proclamation on the Family. I’m asking that they operate only as courts; that they follow constitutional precedent, and analyze cases and constitutional law as has been done in prior cases. Let people decide how they want marriage defined. That’s how legislation is supposed to work, either through direct initiative or the legislature–not the court system.
Comment by Guy Murray — January 4, 2007 @ 8:51 am
Guy Murray wrote: Furthermore, from a legal perspective, same gender attraction SGA (whatever that exactly means) is not at all like having a racial characteristic such as African-American, Hispanic-American, Asian-American, and many, many other forms of ethnic heritage) In other words, in my analysis SGA is not a suspect class, as is say being Black, or Hispanic, or name your ethnic background.
Why not?
Also: If a majority of the good folks in MA, or CA, or any other state want to define marriage to allow SSM, then more power to them. At least putting the matter to a popular vote will give the “new†institution a legitimacy that is entirely missing in what you want to see the courts do in actually re-writing legislation from the bench and changing the traditional definition of marriage that has stood for thousands of years.
On one hand, I agree with you. Same-sex marriage will sink much deeper roots and be viewed as more legitimate if it is introduced through the legislative process (as was the case in California, until the Governator vetoed the bill) or by referendum. I suspect that same-sex marriage will ultimately win a popular vote in Massachusetts, particularly since the sky has not fallen since gay couples began marrying there.
On the other hand, I disagree with you. Civil rights don’t get to be put before the electorate for a vote. And this is a civil rights issue. Despite your assertion above that homosexuality is not like race from a legal perspective, sexual orientation is increasingly treated legally as is race, gender and religion when it comes to protection from discrimination.
Let’s be clear. I have no interest in forcing Mormons, Baptists, Catholics, Muslims or Jews to perform same-sex marriages. If that offends or contradicts your doctrines, fine. All I ask is that religion return the favor and stay out of my life. Because though you protest that your concerns are entirely legal, I find such protestations to be less than credible. Opposition to same-sex marriage is primarily rooted in moral objections to homosexuality.
And so I ask again: What is the threat that same-sex marriage presents to “traditional” marriage and to society at large?
Comment by Chris Williams — January 4, 2007 @ 10:06 am
Guy, your legal analysis is well reasoned and I appreciate the tone in which it is presented here.
I’d like to follow up on your assertion that restrictions on homosexuals marrying each other are permissible, while racial restrictions are impermissible.
Surely you are familiar with famous footnote 4 from the U.S. Supreme Court’s Carolene Products opinion, where Justice Harlan Stone ushered in a new era of equal protection jurisprudence:
Although the question in Massachusetts is a result of a judicial opinion decided on rational basis review, and is not so conveniently procedural as the enacted legislation at issue in Carolene Products, homosexuals are a “discrete and insular” minority as defined by Justice Stone. Therefore, legislation specifically targeting homosexuals (including referenda and state constitutional provisions) deserves no less than the same strict scrutiny applied to legislation targeting racial or ethnic minorities. Thus, regardless of the definition of “marriage”, legislative restrictions specifically targeting homosexuals are impermissible as a matter of law.
Comment by ECS — January 4, 2007 @ 10:48 am
Of course, restricting marriage to persons of opposite sex does not “specifically target[ ] homosexuals.” Any person may marry any other person, so long as (1) he or she is of the opposite sex, (2) he or she is of age, (3) he or she is unmarried and (4) he or she is not within the proscribed degree of consanguinity. The law doesn’t care what the sexual orientation of the intended spouse is; nor does it care whether you or the intended spouse is by nature promiscuous or pedophilic or whatever.
Comment by Mark B. — January 4, 2007 @ 12:58 pm
Mark B. – arguing that restricting marriage to heterosexuals doesn’t specifically target homosexuals is the same discredited reasoning used to justify restricting marriage to those of the same race, i.e., – Any person may marry any other person, so long as (1) he or she is of the same race, (2) he or she is of age, etc.
If homosexuals are a discrete and insular minority akin to racial and ethnic minorities, then, in the absence of a compelling governmental interest, the restrictions preventing homosexuals from marrying each other are unconstitutional.
Comment by ECS — January 4, 2007 @ 1:23 pm
Guy wrote:
“The reason, Nick, I frame the question the way I do, is that is the way the question needs to be phrased in a legal analysis. Loving did not analyze, as you suggest a fundamental right to interracial marriage. Rather, the question was whether there was a fundamental right to marriage. Of course, the court answered that question in the affirmative.”
Actually, Guy, that is the way the question needs to be phrased if one wishes to AVOID the proper legal analysis. You have, btw, stated the exact opposite of what I said regarding the analysis given in the Loving case. Loving recognized that the fundamental right to marriage was improperly denied by anti-miscegenation laws. The same analysis by honest judges (as opposed to right-wing judges governed by their political and religious preferences, rather than by the law) would inevitably find the same for same-sex marriage. In order to avoid that conclusion, certain courts have instead re-worded the question, ignored the fundamental right to marriage altogether, and asked if there was a fundamental right to same-sex marriage. When you phrase the question in such extreme isolation, you can justify a negative finding.
I still find it unfathomable that you wish to subject the rights of a minority to a majority vote. By your logic, the Supreme Court had no business ruling in Loving, but should have directed a popular vote on the issue of inter-racial marriage. Then, if the majority of the public opposed it (as was a sure bet at the time), then persons who wished to marry someone of another race should be denied that ability.
Further, I would suggest that you do a bit of reading on the subject of marriage, before concluding that marriage has always been between “a man and a woman” for “thousands of years.” Common sense should tell you that’s a dangerous generalization to make, but at least some education can correct your assumption.
Comment by Nick Literski — January 4, 2007 @ 1:24 pm
Nick, it’s true the legal concept of marriage between a man and a woman is a relatively new phenomenon, but Guy is absolutely right that marriage has traditionally been understood to be a relationship between a man and a woman.
Thank goodness, however, that we live in a time and a place that examines these traditions to determine whether the traditional way of doing things merely serves the interests of the majority at the expense of the minority, or whether these traditions are essential components of a progressive democratic society.
Comment by ECS — January 4, 2007 @ 1:59 pm
Just to pose some questions from a layman with little legal and political background:
Under what circumstances is it acceptable to include the descrimination of a minority into the fundamental workings of our legal system?
Are we subjects of our legal system, or are we its authors? Aren’t we free to amend legislation that we believe is incorrect and unfair to those who are suffering because of it?
Will there ever be any way to accurately represent the concept of homosexuality as it exists in popular fact? Will it be possible to dispel misconceptions started by bigotry and fear to come to accept men and women as they are and not as we percieve them to be?
or is the movie Crash right? Is the world a horrible place and there’s nothing we can do about it?
please consider these nuggets of idealism, treat them as you will, I think they are fundamental to the debate and important to think about when you look at the roots to both sides.
Comment by ERK — January 4, 2007 @ 4:25 pm
Boy, these discussions are all the same. It’s a good thing modern-day prophets have already decided the Church’s position on this issue and made it very, very clear. Latter-day Saints have no reason to go through any mental gymnastics. Simply “follow the prophet.”
Comment by Geoff B — January 4, 2007 @ 5:19 pm
Gee, why didn’t I think of that?
Comment by Chris Williams — January 4, 2007 @ 5:31 pm
Geoff, are you being sarcastic? If not, your post may well be the most frightening blog entry of 2007.
How could anyone believe in a deity who “blessed” them by eliminating individual thought? Your words make me imagine an alternate reality where Lucifer won the battle in heaven. It’s almost as if I can see and hear his loyal subjects right now:
“Wow! It’s a good thing Lucifer has already made all our decisions for us and made life very, very clear. Thanks to him, we have no reason to go through the mental gymnastics of making choices! Simply ‘do what Lucifer says.’”
Comment by Nick Literski — January 4, 2007 @ 7:48 pm
Nick, no, not sarcastic. The Brethren have made the Church’s position on this issue quite clear. No reason to stress about it. There are things in life that I stress about and things that I don’t. This is not one of them. But you’re welcome to stress about it if it makes you happy.
Comment by Geoff B — January 5, 2007 @ 10:01 am
Geoff,
For many gay Mormons and their families, the Church’s position (and the language it uses to communicate it) is distressing. I realize that you may not much care about that, but it is a source of pain for many.
Comment by Chris Williams — January 5, 2007 @ 11:09 am
There have been a few interesting discussions over at Times and Seasons and other blogs regarding concerns expressed by some political pundits with the directive “follow the prophet”, and exactly what this means with respect to Mitt Romney. Does Mitt Romney have the same obligation to unquestioningly follow the prophet as Geoff B seems to suggest? If so, we could have a real “Manchurian Candidate” on our hands
Comment by ECS — January 5, 2007 @ 1:05 pm
From Joseph Smith onward, the prophets of this dispensation have guarded against simply taking their word as the word of deity. They (particularly Brigham Young, for example) have taught that individuals are to take responsibility by studying, pondering, and praying about what the president of the church (or anyone else) teaches. To abandon this responsibility, justifying one’s laziness by facile mantras like “follow the prophet,” is an enormous insult to that deity who created you with a brain. It is a direct and unmistakeable adoption of Lucifer’s plan, with only a different object for the idolatrous worship it entails. To do so, while claiming to be doing the will of deity (let alone thanking deity for the “benefit” of “not having” to use your mind), is blasphemy at best.
Comment by Nick Literski — January 5, 2007 @ 2:00 pm
In my view, the Church’s position is to communicate the correct principles embodied in the commandments of God. This is not the source of pain. Evil, deceit, and ignorance are the root source of all sorrow and suffering. “Wickedness never was happiness”.
Comment by Jim Cobabe — January 5, 2007 @ 4:10 pm
The hedonists of the church glom on to all of these statements to justify their disobedience. Nick, It is tiresome. The church will never accept gay marriage or any form as gay relationship as normal. It is time for you to repent or move on but the debate is over.
Comment by al_miller — January 5, 2007 @ 5:11 pm
Do you really think, al_miller, that Joseph Smith, Brigham Young, and Gordon B. Hinckley have made such statements just to help those bad ol’ “hedonists” out? I doubt it. What is tiresome is how so many LDS will readily stand in judgement of others, but can’t seem to think about their own lives at all, other than how they can avoid any and all personal growth by just following unquestioned marching orders.
I suspect that neither you, nor I, have any idea what the church will “accept” at some future time. Not so long ago, Bruce R. McConkie adamantly intoned that persons of African descent would never receive the Priesthood until the millennium—and then he later ate his words.
Frankly, it doesn’t matter to me whether the LDS church accepts homosexual relationships as “normal.” What matters to me is the *political* insistance the LDS church seems to have on the matter, spending millions of dollars in fear campaigns, in order to see that a minority is deprived of basic civil rights.
Comment by Nick Literski — January 5, 2007 @ 5:21 pm
Yes while BRM was saying that other general authorities like David O Mckay were making statements that indicated otherwise. Never in the history of the church was a proclamation on race promulgated that would make doctrine out of something that was widely regarded (among the brethren) as something that would be change and be revealed in the Lord’s due time.
This is a real tired and worn out argument. I challenge you to find one statement of a general officer of the church that suggests that gay marriage is subject to future revelation. I guarantee you we will have women members of the 12 before that ever happens. Just so you understand–that means never.
Nick, its honestly time for you to find another issue. You’ll beat your head and your soul to a bloody pulp over this one. Misconstruing and twisting statements from Brigham Young, Joseph Smith and Gordon B. Hinckley to fit your pet cause is a lost cause.
Comment by al_miller — January 5, 2007 @ 11:37 pm
Wow, al_miller, you must be feeling awfully threatened, for you to try so hard (and more than once) to silence those who disagree with you.
In your insecurity, you misconstrue my point. I’m not trying to lobby for the LDS church to change it’s position on homosexuality. The LDS church is already so far from the Mormonism taught by Joseph Smith, that I find it a basically worthless corporation—no more useful than any other church down the street. The LDS church’s opinion on homosexuality is simply irrelevant. (I will say, however, that the recent “interview” with Dallin Oaks was disturbing in how it taught parents to reject their gay children by refusing to recognize/entertain/acknowledge their partners, etc.)
What is relevant, however, is the LDS corporation’s insistance on spending millions of dollars in member contributions, in order to lobby for the denial of basic civil rights to a minority. Since I am part of that minority, I find this conduct problematic. Even if it makes al_miller feel uncomfortable, I’m not going to silently sit by and watch. I will criticize that practice every chance I get. Deal with it.
Comment by Nick Literski — January 6, 2007 @ 1:11 pm
Nick, I understand how strongly you feel on this issue. But this is a public forum, so when you make inaccurate statements, you will get criticized. No, gay marriage is not a basic civil right — that’s why no state except Massachussetts has recognized it as such, and that may not be a permanent development.
You may want it to be recognized as such, and there is an ongoing public debate about it, and at some point it could change. But to talk about gay marriage as if it is already a recognized civil right that the vast right-wing conspiracy is somehow trying to subvert is simply inaccurate. Your credibility (sic) suffers.
If you want to contribute to the conversation, you’re a welcome commenter. If you just want to vent about why we (and most of America) don’t accept your vision of gay marriage and all the reasons you don’t like the LDS Church — well, I’m sure there are forums where you’ll get a pat on the back for that sort of thing.
Comment by Dave — January 6, 2007 @ 1:33 pm
My insecurity? Oh puhlease Nick. That kind of invective is an empty leftist technique.
You have clearly revealed that you think that this is just an empty corporation. So your sticking around to debate with people you think are empty seems a bit creepy to me. Most people would say it is time for you to get a life.
Comment by al_miller — January 6, 2007 @ 10:06 pm
Chris Williams:
Because SGA is not now, and has never been considered in American constitutional jurisprudence, as far as I know, to be to be a suspect class. If you can cite me to appellate case law so holding, I’m happy to read it. Most, if not all the appellate cases visiting this issue have opted simply to strike down statutes based on the “rational basis” constitutional analysis. Not even the MA court in Goodrich made the legal leap that what was at stake was either a fundamental right or that sexual orientation was a suspect class.
ECS:
No, sorry, I just don’t share your view of that monumental footnote in a commerce clause case about whether
I don’t see any applicability to Justice Stone’s footnote, and the leap in jurisprudence you would like to make and have so stated–though I credit you for your creativity!
Nick
It doesn’t really matter to me how you want the question phrased. What matters is how appellate courts in American Jurisprudence are and have framed the question. I have no doubt that you are an avid proponent of SSM. That’s fine. All I’m saying is that the most legitimate way to achieve that goal, assuming it is to be achieved is through the initiative and/or legislative process–not by judicial fiat.
Again, there is no fundamental right to SSM. If you can cite me to some appellate opinion so stating, I’m happy to consider the legal argument. But absent some legal precedent, I’m sorry, but your analysis and desire just aren’t enough to convince me of this new legal right or new legal suspect class.
Comment by Guy Murray — January 6, 2007 @ 11:00 pm
Nick,
One last thing . . . I don’t know where you live, or to which judges you have reference: but, the appellate panel in the CA case which rejected SSM and those who would consider it a fundamental right, or those who want it a suspect class are anything but what you describe above.
The First Appellate District Court, which heard this case sits in San Francisco (hardly a right wing community governed by religious preferences. You can read about Justice William R. McGuiness here. You can read about Justice Joanne C. Parrilli here.
Comment by Guy Murray — January 7, 2007 @ 2:03 am