As the fight over gay marriage continues in Massachusetts, we find out that the proponents are bypassing the legislature and the people and going to the courts to get their way.
One of the things that helped keep gay people from all over the country flocking to Massachusetts to get married, and putting the “full faith and credit” clause to the Constitution to the test, was a previously-little-known 1913 Massachusetts law that said that a marriage conducted in Massachusetts that was illegal in the home state of one of the participants would not be valid. It was put in place as a stand against inter-racial marriages, but the law was never repealed.
So when a couple from Hart’s Location, NH drove down to Massachusetts to tie the knot, they were informed that since New Hampshire wouldn’t let Les and Ed conjoin, neither would the Bay State.
Yes, the courts do have the ability to strike down laws. But there are other ways — ways that depend on the will of the people. And if gay marriage is in any way going to succeed, it has to have the support — or at least the grudging tolerance — of a majority of the people.
Under our system of government, the three branches provide checks and balances on each other. When one branch is perceived as going too far, the others can act to stop them.
In Massachusetts, the governor can appoint successors to the judges making the unpopular rulings. The legislature can impeach and remove them from office. And in a further step, the people themselves can simply change the Constitution and re-write it to suit their beliefs, not those of the judges.
Such a move is underway right now. People are getting petitions signed to ban gay marriage, in backlash to the high-handed moves of the court and the outright obstructionism of the legislature. And, naturally, those two bodies are doing everything they can to hamper the petition effort.
It’s a tough call for me. On the one hand, I’ve long been a supporter of gay marriage. But I’m an even stronger supporter of democracy and the rule of law, and the side I support has abused that, while their opponents are acting in the truest sense of democracy.
I don’t think this will end up in a civl war or revolution in Massachusetts, but damn, it’s fine entertainment.
Hey, just to make this clear, the wall of anti-gay text above was NOT posted by THIS Mark.
Bullwinkle:
“Claiming it’s a right or unconstitutional pissed a lot of people off. If they keep trying to shove it down our throats by circumventing the legislative branch they’ll only keep hurting their cause.”
I understand that, and I’m usually one of the first to bristle when someone claims a “right.” If only you knew me.
But, on some issues I don’t have faith in the legislative branch, and this is one of them.
John, I have stated several times that I couldn’t care less one way or the other and I don’t. I don’t have an opinion that it shouldn’t exist, I don’t care. I only care that they try to circumvent the legislative branch. There’s a reason we have things set up that way and they have absolutely no respect for our system. If you weren’t the wanker you accuse me of being you might have gotten that message. Gays aren’t icky at all. You, however, are one scummy little turd.
Mark, after calling my logic circular how do you define this:
If gay marriage is to be viewed as a civil rights issue, which I do, then it should be decided by the courts rather than waiting for the masses to lighten up. I’m not advocating judicial activism.
Rectangular? Not that I’m saying it’s a complete contradiction of itself, but it is.
Mark,
Actually I wasn’t criticizing you when I pointed out that one line, I was trying to use it to reinforce my point that besides blood and age the state (IMHO) has no valid concern in proscribing who gets married to whom, though a strong case can be made against multiple partner marriages because of civil contracts, real property, fiduciary obligations, and the rights of the child in a multiple partner family.
Yes, I do agree that the reason we have a federal republic is specifically because the founders weren’t overly fond of entrusting the demos, hence the constitution has specific amendments that do safeguard the rights of all people, not just those in the majority. However I am loath to use the courts to overturn popular amendments, especially when we’re talking about super majorities, not just simple majorities. When you have 60+ percent of the voters turning out to adopt an amendment using the courts for an end run is a recipe for disaster. Example – Worcester v. Georgia ruled that the state of Georgia couldn’t impose its laws on Cherokee reservations, President Jackson refused to enforce the order of the court: “John Marshall has made his decision, now let him enforce it!” Jackson was totally wrong, didn’t help the Cherokee much though, did it?
IMO Congress and the courts have no place dictating who can marry whom, or how, or when. Rather than look to the 14th amendment I prefer the one-two combination of the 9th & 10th amendments:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
-and-
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
These two amendments suggest to me that the privilege of marriage as it is legally recognized by the states cannot be denied an individual because of their sexual orientation without said proscription passing strict scrutiny.
Unfortunately cases that have gone to court so far seem to favor the 14th amendment route and the problem with that remains what I’ve talked about before. A perfect example of this is Zablocki v. Redhail, here the court found in favor of the petitioner, but the decision actually hurts the same-sex marriage case because the Court arrived at the judgement that the right to marry was a fundamental interest, not a fundamental right. Also that case found that any state law that interfered directly and substantially with the privilege of people seeking to marry must be able to pass critical examination, which is the rhetorical equivalent of intermediate scrutiny and not the more stringent standard of strict scrutiny. So it is possible for states to write marriage amendments that do proscribe same-sex marriages as long as they pass the lesser standard, that is as long as you rely on the 14th amendment as your test.
Also, no, not a lawyer but there are three of them in the family and my wife is a paralegal, so I’ve gotten a piecemeal legal education over the years.
mark, (small m)
If you actually went out and met some gay people instead of reading about them in books you might be able to discuss the matter without sounding like a complete fucking idiot.
A couple people keep bringing up the tyranny of the majority, they should keep in mind that there is also the tyranny of the minority. Just to keep that in the open, it is not only the majority that can force their views onto others.
Mark:
Actually Robert reminds me of something I wanted to ask.
What are your views on Incorporation Theory?
Do you see it as a necessary reaffirmation of the Bill of Rights, or as something more? Do you agree with how it is has been applied?
It would help in understanding your arguments better, and how they may or may not gel with other amendments (such as amendments 9 and 10 brought up by Robert).
First, it is a baseless assumption to assume that civil rights are involved.
There is a greater and more compelling body of evidence that homosexuality is a choice than that it is purely biological (i.e., not a choice). If it is a choice, then it is not a civil rights issue. Discrimination laws are designed to prevent someone from treating people differently because regardless of how they act, they look different. But treating someone differently because of arguably chosen behavior means treating them differently because, regardless of how they look, they act differently.
Second, if homosexual marriage is legalized, indications are that the homosexual lobby will use the imprimatur of state sanction to force all sorts of spousal rights, including medical insurance. The push for civil unions first and marriage later seems closely related to the hope of getting insurance to pay for extremely expensive medical treatments for AIDS for male homosexuals, and closely related to adoption rights for female homosexuals. That affects all of society, right?
Third, if you want to see the deletorious effects of homosexual marriage on society, look no farther than Europe, where in the nations that have legalized gay marriage, the social costs of declining marriages and increasing out-of-wedlock births is clearly harming the family as a social unit. And Europeans’ birth rate is so low that Europeans are in danger of being supplanted by an alien culture.
Fourth, I’m really glad that we don’t pass laws based on what Mark can imagine might affect his kids.
Do we not routinely treated individuals differently in our society based on their actions? At what point in history did sexual preference and personal action become civil rights?
Robert Modean:
You bring up some great points, and I didn’t even consider the 9th and 10th amendments. You’re very articulate and your arguments are well-reasoned. You’re the poster child for those who think lay people are completely qualified to interpret the constitution. Unfortunately, people like you are extremely rare.
Your comments about the Indian issues bring up another point that I’m sure no readers of this blog could handle. Everyone seems to think that the Constitution is the “supreme law of the land.” It is, except for vast categories of treaties that are, at worst, co-equal “supreme laws of the land.” Many treaties completely trump the Constitution. Some of the Indian treaties fall in that category, but I’m not sure about the specific ones that may have been at play in the Georgia case you referred to.
I’m gonna sign off this thread in a minute. I was hoping to hear some solid state interests in prohibiting gay marriage, but all we’re getting is unreasoned emotional drivel. I guess that sort of proves my point, to an extent. Oh well. You know, ten years from now, everyone will be wondering why this was even an issue–kinda like everyone post Brown v. Board has wondered why Plessy was ever an issue.
Bullwinkle:
No, there is no contradiction there. Where do you see it?
Consider that the paragraph begins with “if.” If what I start with is valid, then a well-established constitutional test should be applied. Not an activist, ad hoc policy decision by the court, but a well-established, mainstream, constitutional test. Where’s the loop?
Bullwinkle, are you familiar with math? Have you ever taken a logic course? Can you say syllogism? There are tools to test the validity of logic. Perhaps you should familiarize yourself with them.
The bottom line is you’re not interested in dealing with the issues that would matter to a court. You prefer operating on emotion and, although you claim you would be content if gays could marry, I don’t believe you. There’s some major blockage to your thought processes.
You asked me a series of questins earlier, but you haven’t commented on my responses. I’m sure you didn’t like my answers, and I’m sure you’ll be even more disappointed when you talk to a lawyer and discover I’m right. Your questions were simple, and the fact that you asked them reveals the depth of your cluelessness. Really, most high school graduates should know these things. You’re so far out of your element it is embarrassing.
I’m done now. I will not be returning to this thread, so feel free to flame me behind my back. I’m sure you’ll be in good company with Chief Muser and JD who also seem to have ADD or reading comprehension disorders.
Equal protection of the laws, folks. Learn something about it. Before you begin to seek some answers, perhaps you should take a screen shot of your comments here. Then, once you know what you’re talking about, you can re-read those comments and blush before your private mirror. You’ll probably cringe and puke when you realize the idiocy of some of your comments.
I’m not talking about all of you–and the exempt ones know who you are. You’re rational.
Cheif Muser said:
“There is a greater and more compelling body of evidence that homosexuality is a choice than that it is purely biological”
How old were you when you decided to be heterosexual, Chief? Did you do it straight (sorry) away, or did you dabble in the dark side a bit first? If you wanted, could you decide to go gay again now? Because see for me it isn’t a choice at all, I am not attracted to naked men in the least. And I really don’t need to read any studies to realise this.
Mark said:
“I was hoping to hear some solid state interests in prohibiting gay marriage…”
Couple of issues, gay marriage is not necessarily prohibited by the state. There are people who will marry gay people in this country, and no one gets arrested, it is just not recognised by the state. Not recognising something is different than prohibiting it. Secondly, the state is the people, theoritically at least, so how the community views it is the issue here.
It seems increasingly to me what we have is a clash between the traditional view of marriage and the modern world. The concept of marriage into pre-history has been a man and a woman, founding a new entity greater than themselves: the family. That is what the word marriage has come to symbolise: two different things forming a union greater than the sum of the parts. A marriage of chocolate and peanut butter, for instance. No ad man worth his salt would propose a marriage of chocolate and chocolate.
But now marriage has increasingly become a legal entity, more concerned with benefits and tax advantages than children and families, and traditional society is upset. Traditional society is the “state” in this country, and I would repeat my asserstion that the problem I have with the idea is you are forcing society, or the state, to recognise a concept they are not ready for yet. I think a civil union compromise is the civil solution.
How can a constitutional amendment be unconstitutional? If a constitutional amendment violates an existing amendment it seems that the new amendment overrides the old amendment. Case in point is prohibition established by the 18th amendment, which was later repealed by the 21st amendment. If an existing amendment overrides a new amendment, then a court could have ruled that the 21st amendment was unconstitutional. That logic, however, would prevent any significant change to the constitution and would render moot the process for adding amendments.
In the case of a definition of marriage amendment that violates an existing equal protection amendment, the new and more specific amendment takes president over the older and more general amendment. Any other logic violates the right of the people to amend the constitution, which is the most fundamental right of the people.
Next issue: Mark states in his first post that “What rational interest does the state or the populace have in interfering with that?” My question is where does it say a person’s motivation must be rational? As a Christian some would say that my entire belief structure is irrational, but are religious people excluded from voting and petitioning the government based on their beliefs? Not if you want to vote and petition the government based on your beliefs! And before you bring up the 1st amendment you better read it again. It’s a double-edged sword and even though only one edges has seen much use, the other edge is just as sharp. Based on my religion I view homosexual relations as immoral as do many other people, maybe enough people to pass a constitutional amendment. Some will view that as being homophobic, but I consider such people to be moralphobic. Let the people vote.
We used to be a country who elect a president every four years and now were run by judges self appointed tyrants to black robes with little wooden hammers who have made themselves our leaders through abuse of power and being blind as bats although a bat can see more these judges have blinders on
Why do I need to get permission from the state to get married?
Because.
Just because.
Because marriage has many legal benefits, which are bestowed by the state. At least that’s what Gays argued before the Massachusetts Supreme court. Those who don’t care about legal benefits can just live together in whatever arrangement they want. Why worry about a state defined definition of marriage?
What two consenting adults do…
Hmm. Well, I guess if the will of the electorate isn’t good enough to settle this issue, we’ll just have to settle it the way we settled slavery.
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