Meet the New Boss…


If you ever needed a reminder that the deep differences between Democrats and Republicans sometimes don't amount to a hill of beans in this crazy world, George Bush's peroration on gay marriage yesterday does the trick.

Sez the prez who knows "we're all sinners" (the only question being whether we be in the hands of an angry god or a loving one):

"I believe marriage is between a man and a woman and I believe we ought to codify that one way or the other and we have lawyers looking at the best way to do that."

As liberals gear up to bash Bush for his reactionary thinking on this point, they ought to remember the actions of the only twice-elected Democrat president since FDR. When Bill Clinton signed The Defense of Marriage Act in September 1996–an act specifically intended to foreclose state recognition of same-sex marriages–he noted that he had "long opposed governmental recognition of same-gender marriages."

While Bush's position is no surprise, new Gallup polls on attitudes toward homosexuals are: Over the past two months, support for gay relations between consenting adults is taking a dive, as is support for same-sex unions.

That's not just bad news for gays and lesbians. It's a bad sign for a country that prides itself on individual rights and tolerance.


NEXT: Who Demagogued David Kelly?

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  1. “Now maybe that means [the people who wrote the Constitution] were just religious, authoritarian pygmies compared to the current generation’s libertarian giants, but I doubt it. On the contrary, caution is indicated when considering the idea that a practice that has only occasionally even been imagined in over two centuries of living under the Constitution is now to be considered a right protected by the Constitution.”

    Hear, hear, my good man! I, myself, would never take a negress as my bride – though, like Jefferson, I may…oh, nevermind.

  2. I will raise the possibility here, as I have elsewhere, that the recent shift in public attitudes on gay marriage may have little to do with a backlash to the Supreme Court “Lawrence” decision. Is it possible that the actual culprit is, of all things, “reality television”?

    The last few months have seen an explosion of gay life in a way that may be “too much too soon” for Peoria: “Will and Grace” was one thing — but it was a comedy. There was all the (for some people) blatant same-sex PDAs (public displays of affection — not personal digital assisstant) at the Tony awards. The Gallup poll was taken last week — just as Middle America was being introduced to “Queer Eye for the Straight Guy” (where gays give a straight guy a fashion “makeover”). This suggests on a certain subliminal level that gays don’t want to just be “left alone” — they want to “transform” straight men. At the very least, it suggests that straight men need to be “transformed.” “Queer Eye” originally ran on cable, but NBC rebroadcast it right after the aforementioned popular “Will & Grace.” For some, otherwise, tolerant individuals, this might have been too much of a morphing of the fictional into the real. Another much ballyhooed upcoming reality show, “Boy Meets Boy,” throws in the “twist” that several of the potential “suitors” of the gay protagonist are actually straight ringers.

    Again, too much for Peoria?

  3. Interesting read fyodor, but in the end she’s just pleading us to go along with it because it’d be nice and we could all hold hands and live in eternal happiness.

    I’m all for free contracts (but can we not call it marriage, then? We don’t call graduating from Middle School Bar Mitzvahs) but I”m not convinced that most, if not all, legal “benefits” should be given based on a legal contract aside from the case of the benefit. This could extend to adoption rights, shared financial responsibilities, medical rights, insurance agreements, etc.

  4. Gays can marry in France, and it didn’t take a court order to bring this about – its called a “civil solidarity pact.” BTW, it took the leftist government of Lionel Jospin to get it passed.

  5. I just looked at Postrel’s arguments.

    Seems like issues regarding children (divorce, adoption) can be sorted out with scarcely more hassle than we have today if we are just careful about how responsibility is assigned. (Although I realize that the current hassle concerning family law can be enormous. My parents divorced and twice fought custody battles over me.)

    As for tax issues, even if we don’t get rid of the income tax (WHICH WE SHOULD!), a few simplifications in tax law would render the marriage issue moot: Just tax each individual’s income, and treat a spouse who doesn’t work as another dependent in the same way that children, sick relatives, elderly parents, etc. are treated as dependents. Of course, before anybody accuses me of flunking a purity test, let me assure you that I would prefer to eliminate the income tax. All I’m saying is that a libertarian notion of marriage can be made to work with minimal changes to our current system

    Employer benefits are the trickiest part. Employers want to woo potential employees by promising benefits to spouses, sometimes completely paying for the spouse and other times charging the spouse all or part of part of the premium. Even there, however, the problem is solvable.

    Employers could, of course, try to decide on a case-by-case basis what constitutes a marriage if we went to a libertarian marriage law, but even leaving aside problems of discrimination law (which is a whole other ball of wax, dragging in the issue of free association and whatnot), it would still be complicated. So they’d obviously like to have some standardized system in place. Here’s what I suggest:

    Each couple is of course free to draw their own marriage contract, but the state will offer a standard default contract that couples can choose to use if they don’t want to go to the hassle. Just the normal stuff: Share legal and financial responsibility, share power of attorney, share all property acquired during the marriage, etc. Employers can say that they’ll consider a couple married if they sign one of those contracts or a privately-drawn contract that is similar to it in certain concrete (employer-designated) respects.

    There, problem solved.

  6. proponents of gay marriage are tackling this issue by taking end runs around the democratic process

    Whatever that means. The philosophy of the anti-gay movement has always been “democracy is fine, as long as people vote the right way”. Claiming that a constitutional amendment is necessary in order to prevent judicial activism ignores the fact that the courts can just ignore the amendment, too (they’ve been ignoring a lot of amendments the last hundred years or so). The only purpose of an anti-gay amendment is to make it impossible for those who favor homosexual civil rights to ever achieve their goals democratically.

    A number of states attempted to legalize gay marriage or gay civil unions, through the normal democratic process of voting. Then along comes Congress with its flagrantly unconstitutional “Defense of Marriage Act”.

    You know, it’s funny how few of the people complaining that they “don’t see any right to sodomy in the Constitution” realize that “the right to determine what is and isn’t a marriage” is nowhere in Congress’ enumerated powers. But then, the Constitution only matters when it’s on your side, right boys?

  7. Dan: Well put.
    It’s depressing to see so many “libertarians” who scream about their “right wing” liberty issues (guns for example), and then just shrug and say “that’s democracy, live with it” on “left wing” liberty issues (such as this marriage nonsense). Same applies to taxes and sodomy and the war on drugs. This selective libertarianism is not much better than republocratinism.

  8. Fuck the marriage issue, I am deeply offended by being included in the “we are all sinners” statement. Apparently this president has no regard of my freedom to religion and therefore is infringing on my constitutional rights. This is grounds for impeachment!

  9. P-Pat: It’s freedom of religion, not freedom from religion. God forbid our day would be free of a little preaching from the vicar in chief.

  10. Pio:

    The legislative history of the Fourteenth Amendment is something I’ve done a lot of research on. I’ve got several ms chapters on it I intend to put up on my website.

    The specific evil the amendment was meant to remedy was the Black Codes passed after the war.

    Most spokesmen for the Amendment both in Congress and in the legislatures argued that it simply required the states not to make any distinction based on race in the civil liberties of their citizens. It was content-neutral, requiring only that *whatever* civil liberties were guaranteed by the states be enforced equally against blacks and whites. The one prominent spokesman for the incorporation doctrine, Congressman Bingham, was incoherent most of the time and appears to have had little effect on anyone else’s understanding.

    The conventional common law reading of “equal protection,” “privileges and immunities” and “due process” also bears this interpretation out. There are a lot of historians of “anti-slavery constitutionalism” like Ten Broek and Crosskey who argue for an idiosyncratic radical understanding of those terms, but most influential figures in the amendment’s legislative history were more influenced by the conventional reading.

    And the fact that the XIV was passed unconstitutionally by puppet governments, imposed on states defeated in an unconstitutional war, should lead us to interpret the amendment as narrowly as possible.

  11. Phil and Pio:

    But the Ninth Amendment was originally a restriction on the federal government, not the states. It was to defend us AGAINST the feds, not to be enforced BY them. I’m all for using the glorious Ninth, o my brothers, as a weapon against federal drug laws, etc.; just as I’d like to use the Tenth to do some serious pruning of the Commerce power.

  12. The interesting theme that I notice here is the anti-democracy streak of many libertarians.

    The idea that the citizens of a state may choose one particular method or another of organizing their family units seems to really chafe on a lot of libertarians.

    Rather than doing the heavy lifting, and asking what types of family arrangements are good or bad, many here seem to think that the viewpoint of the majority of people, as reflected by their elected representatives, is simply irrelevant. This is generally summed up in a statement along the lines of “the state has no right to say who can marry whom”…

    Maybe I missed something – is the premise of libertarianism now not limited government is best, but rather all government is completely unwarranted?

  13. Bush’s comment that “we’re all sinners” was a call for equality and tolerance, not an intolerant statement. It’s not easy to miss that.

    I’m puzzled but not surprised by Gillespie’s confusion of tolerance for gays and moral acceptance of gays. One of the charms of the old libertarianism is that it didn’t pretend that we needed to approve of everything permitted. The new libertarianism–the Reason(c) Libertarianism–affirmatively rejects that view. Now, they say, libertarianism means approval of drug use, not just tolerance. It means approval of homosexual activity, not just tolerance. And so on, down the typical left/right cultural splits. It’s no longer a beyond-ism, and it certainly isn’t “of the right” any more.

  14. They can huff and puff all they want but I don’t see how they’re going to get a goddamn constitutional amendment through two-thirds of the states.

    California, Oregon, Washington, Maryland, New York, Connecticut, Vermont, Massachusetts, Rhode Island, Minnesota, Wisconsin — that’s 11 I can come up with off the top of my head that would be highly unlikely to go for this. I’m not familiar enough with the sexual politics in other states to guess particulars but I wouldn’t be surprised if there’s another eight or nine states that also would be seriously divided on the issue.

    My take on the horse race.

  15. Since when are moral acceptance and moral approval the same thing?

  16. “Maybe I missed something – is the premise of libertarianism now not limited government is best, but rather all government is completely unwarranted?”

    Government inherently is the use of force, which is an evil – taxes are taken under threat of fines and prison, laws – esp. vice laws and regulation deprive individuals of their freedom to act, etc. It is only justified to prevent or counteract a greater evil, such as violent or property crime, for example. Technically, the individual should have the right to “opt out” of government if he so chooses. (I suppose you could call this an individual right to secession.) (That is, as best I can state it, the “pure” form of the libertarian argument. Few adhere to it completely, of course.)

    In this case, the question is “does government regulating the nature of the family unit prevent greater evils?” Except regulations to avoid child abuse, forced arranged marriages, and the ilk, many/most libertarians would say no, and thus that government should not regulate marriage, no matter how popular that regulation is.

  17. No, Stephen, it means that libertarians are not majoritarians.

  18. Stephen Fetchet,

    The premise of libertarianism is that government should be limited to its proper role of protecting citizens from violations of their rights to physical security and rightful property.

    Rather than falsely accusing libertarians of wanting no government at all, try telling us how defining marriage fits into the above.

  19. Kevin:

    I dont know enough about the history of the times to argue with you about the 14th amendment’s creation, but the court has interpreted it to mean that the BoR applies to the states (if that interpretation is historically correct, i dont know, but it’s settled law). Also, if one subscribes to a substantive interpretation of the Due Process Clause (which is what the Lawrence opinion seems to do), then this whole matter might fall under liberty.

    Out of curiosity, why was the Civil War unconstitutional (other than the whole thing with Lincoln blockading before a declaration of war)?

    The feds arent enforcing jack, it’s the courts doing the enforcing. And ultimately, only the courts can enforce the constitution.

  20. Stephen Fetchet,

    Don’t you repeatedly accuse libertarians of being “anti-democracy” and don’t lots of folks here repeatedly explain to you quite articulately why they don’t believe democracy should reign supreme? Obviously the Founding Fathers believed that there should be limits on legislative power (and only the House was selected by direct democratic vote while the Senate was chosen by state legislatures). As others have stated here, unless you’re categorically against all judicial review, it’s hypocritical to accuse those who would like certain laws they consider to be unconstitutional to be declared such and overturned via judicial review of being “anti-democratic.”

    That said, I would certainly agree with the point made elsewhere on this thread that all things being equal, I’d prefer laws I dislike to be changed via officials directly elected as that causes less backlash and lasting wounds, not to mention that it has a truer ring of basic fairness.

  21. Stephen:
    The issue is that individual rights (freedom from laws in a given domain) should come first.

    Have you heard of the “tyranny of the majority”? The writers of our constitution understood it well and specifically tried to prevent it. They feared straight majority rule, so in a sense you are right.

    The word “democracy” gets thrown around in a lot of ways it shouldn’t. Democracy (or elections) is only part of the picture.

  22. RVMan argues that government is inherently evil because it has a coersive component – except when it is using the coersive component to protect property.

    I’m just wondering, why is it that people can’t construct the type of local community – at least up to the state level – that they would like to live in? Isn’t the denial of near absolute freedom in legislation to states and localities equally coersive? Or is the right to define what kind of community you want to live in not really an individual right that can be exercised collectively?

    I ask because the gay rights activists aren’t asking for the privatization of marriage, except and unless it means the elimination of marriage entirely. Read what the Village Voice has to say about that. Instead, they are insisting that there is a federal equal protection right that mandates that gays must be allowed to marry.

    Isn’t that request for national government recognition of gay marriage even more oppressive than local and state level refusal to acknowledge gay marriage? After all, the states will be compelled to take action if the gay rights activists get their way, but are presently not taking any action at all.

    It seems to me that if the coersive power of government is inherently evil unless used purely defensively, than any state involvement in human relations whatsoever – save the regulation of those relations to protect people from the predations of others – is illegitimate and “evil” – I use quotes because if government must be inherently standardless, I don’t know how you can apply a finite standard of good and evil to it.

    Anyhow, if government must be so limited, then we must forget the marriage laws, school laws, taxes to build roads or regulate markets, whatever, to create our Hobbesian wonderland. In short, no government at all absent a defined, imminent threat to property.

    But wouldn’t this deny a right of self determination to people who would like to build a specific type of community? Or doesn’t that right count?

    And as for the founding fathers and the Constitution, well hell, that’s nothing but a piece of paper drafted by a bunch of elected officials acting democratically, which was then ratified by the states – again by their citizens acting democratically. If the will of a majority, or in that case a supermajority is insufficient basis to set rules for a community, why then should the Constitution hold a privileged position, as against all other forms of democratic expression? Why should our national counter-majoritarian streak automatically counteract local rule by majority? They are just two separate democratic determinations, and I am now under the impression that democratic decision making is presumptively suspect, because we are all about protecting the rights of the minority…

  23. Congratulations, thoreau, and many happy returns.

  24. “I am now under the impression that democratic decision making is presumptively suspect”

    Stephen Fetchet, you exasperate me! No one here said “democratic decision making is … suspect”, only that it is only part of the picture!

    You harp on rvman’s use of “evil,” and I would agree that the cartoonish nature of that word limits its usefulness. His larger point, however, is that the use of force should be limited to when something worse is at stake. Personally, I would streamline that sentiment by saying that government power should be limited to when illegitimate force has already been used to violate someone’s rights. One of the basic premises of libertarianism is the non-initiation of force. Once force has been initiated, counterforce is legitimate, and the government may act in that regard.

  25. As to whether gov’t recognition of gay marriage is coercive:

    Well, in addition to the promise to love, honor, and cherish, etc., most people who marry in that spiritual/personal/family sense also want to share their belongings and responsibilities. So they go to the courthouse and sign a marriage contract. A contract is a legally binding agreement, and so the state must be involved, otherwise it isn’t a legally binding agreement.

    Most libertarians would say that any two adults (or more, in Utah 😉 should be able to sign a contract in which they agree to share property and responsibility for each other. It shouldn’t matter to the state whether the adults signing it are 2 unrelated heterosexuals, 2 men in West Hollywood, 6 adults in Utah, or 2 cousins in Alabama. The law should just allow consenting adults to join in whatever arrangement they want.

    Now, there are 2 ways to do this:

    1) The government (presumably state government, not federal) simply wipes the slate clean on marriage, and each couple has to draft their own contract. This is the “no law” situation.

    2) The government comes up with a standard contract, calls it a marriage contract, and lets consenting adults either sign such contracts, or else modify it as they see fit. This is the “standard-issue marriage with room for modification” situation. Because it involves the government taking the initiative to define something, and because the government _appears_ to be making a value judgement by stamping the word “Marriage” at the top of the contract, I guess you could say it’s coercive in some nitpicky sense of the word.

    But, at the end of the day, the result will be the same: Consenting adults can enter into their own private arrangements as they see fit. I really couldn’t care less what the label is, or whether the gov’t has a “standard issue” marriage contract ready for those who want it.

    To briefly touch on the issue of majority rule/minority rights: I would say that whenever the gov’t initiates an action the consent of the majority (be it a local majority in the case of local laws, a statewide majority in the case of state laws, or a nationwide majority in the case of federal laws) should be NECESSARY, but NOT always SUFFICIENT. Sometimes a supermajority should be needed, and other actions should simply be beyond the scope of gov’t, regardless of how large the majority is (e.g. telling people what books they can read).

  26. Thank-you, Tim!

  27. To continue,

    Regarding whether a local government can make their its laws to build a specific type of community, well of course, AS LONG AS those laws don’t violate their citizens’ rights. In that respect, local legislatures are no different from the national legislature. If a local government wants to punish rape with the death sentence and make grand larceny a minor misdemeanor, no libertarian principle is violated and federalist principles would say that the federal government should have no say in whether this is right or not. But if a local legislature votes to make their parks off limits to one race of people, that would be a violation of that race’s rights and should be overturned in whatever court it goes to. Capiche?

  28. More,

    Someone on this thread said libertarians are not majoritarians. That does NOT mean we or they are ANTI-MAJORITARIANS as you imply. There’s a difference, and hopefully Thoreau’s recent post has explained it to you. Regarding protecting the rights of the minority, the one legitimate role of government is protecting the rights of ANYONE, but the minority has CERTAIN rights in no less a manner than the majority. Notice I said “certain,” because there are also issues that get to be decided by the majority. But what the majority cannot do is trample on people’s rights. Okay?

    Nah, you’ll probably go on claiming libertarians don’t care a whit about democracy, no matter how much my and others’ arguments have clearly refuted that.

  29. “But wouldn’t this deny a right of self determination to people who would like to build a specific type of community? Or doesn’t that right count?”

    If a certain group of people wants to make themselves into a specific type of community, they can do so, just draw up a contract and all sign up to it. People who like this type of community can have it, people who don’t can be free of it (Robert Nozick’s “framework for utopia”).

    If they want to determine it democratically, however, then yes, it automatically become suspect. Democratic decision-making will almost always involve a minority which disagrees w/ the majority, but is coerced to go along. It is no violation of the majority’s rights to protect the minority from coercion, since the majority doesn’t have any coercive rights in the first place (it is composed of individuals without those rights, and those individuals dont magically gain any rights just by banding together).

    There is nothing inherently good about democracy. It is just the form of government most likely to, over time, produce a fair and liberal government.

  30. Fyodor: I didn’t know that the death penalty had been generally accepted as falling within libertarian principles. Isn’t it a violation of a citizen’s right? (Relatively coercive too, I would say.)

  31. xray,

    I wouldn’t claim to have read everything (or even anything) written on the subject, but I would say that libertarianism is neutral on the death penalty issue as long as (naturally) it is only invoked to punish someone who has already violated someone’s else’s rights. Absolutely it’s coercive, but then all punishment is. And y’know, if you refuse punishment, you may end of with the death penalty anyway! That the death penalty is the ultimate use of coercive power is good reason not to use it except when absolutely necessary (or maybe even not at all), but I wouldn’t say it violates libertarian principles, properly applied.

    BTW, while I haven’t read up on the subject, I do remember my girlfriend once calling the local Libertarian Party to get the “official” view on the issue, and she was told that the LP was neutral.

  32. fyodor: Thanks. (Sounds like my kind of girl!)
    I guess my general mistrust of the competence of government makes me lean towards the view that execution is never acceptable because it’s unrevokable.

  33. I used majoritarian because I couldn’t think of “mob rule” at the time. Democracy isn’t mob rule, though I think it degenerates to that at times especially in the case of victimless “crimes”. Certainly whether anyone considers gay marriage distasteful or not, it certainly harms no one who doesn’t want to be involved.

  34. Why shouldn’t libertarians be anti-majoritarian? The Bill of Rights is, and for good reason. If the majority could be relied upon to respect everyone’s rights to speak or worship freely (or to not do so at all), there would be no need of a 1st Amendment.

    That said, there are only two choices when it comes to rights not explicitly protected by the Constitution (or necessary to upholding those that are), and that is to defer to a legislative majority or to a majority of nine unelected lawyers on the Supreme Court. One wold think that libertarians could see why the former is a wiser course procedurally and politically than the latter.

    The pity, of course, is that there is no amendment protecting a right to privacy, one that would encompass such areas as sexual practices among adults, or taking in mood altering substances into one’s own body. Such is well past due.

  35. I think the view that libertarians regard democracy with suspicion may have less to do with the fact that they sometimes object to the will of the majority becoming law than with the frequency with which they do so.

    Let’s not kid ourselves; we are not living in a state of nature, building a society from scratch. We are living in an existing society that has regarded — legally and otherwise — certain things in a certain way for a very long time. These things include drug use, homosexual conduct, marriage, and many others. Before changing the legal status of any of them we need to answer not only what this should be in the abstract but why do we need to change it now from what it has been.

    Now if the majority of Americans wants to make such a change, they may be right or wrong to do so, but the political consequences of their decision are consequences they have accepted responsibility for. This is not the case with a change imposed by a court or, for that matter, by any other authority unaccountable to the people. The courts are a useful and necessary check upon the passions of temporary majorities, as they were intended to be, but when they undertake to impose changes in long-established institutions like marriage they risk undermining their own legitimacy and that of the government as a whole.

  36. Mona: a legislative majority is extremely vulnerable to the shifting and short-lasting whims of the people. It is most likely to degenerate to “mob rule”, especially since it has no incentive to protect the rights of the minority from the majority (a majority which most likely is responsible for the legislature’s election and possible re-election).

    The Supreme Court is a body whose members are extremely scrutinized for suitability by all kinds of expert bodies (for example, the ABA) and critics, and has no incentive to do anything other than what it feels is right.

    The ninth amendment does protect privacy as well as any other rights one can imagine (see this:

  37. Pio,

    Re your link, hell that’s why I didn’t go to law school! 🙂 Any chance you could, uh, summarize??

    Though as I’ve said previously in this thread, my own understanding of the 9th Amendment is based on the notion that the People were held to have inalienable rights just by that being the nature of humanity, and that a system of rights had been developed over many years by English courts resulting in the tradition of Common Law. Persuant to all this, the 9th Amendment’s specific purpose was to say that any rights that had been (or would be) developed under this system could not be said to not exist just because other rights had been spelled out in the BoR.

    In this reading, there’s really nothing wrong with the courts coming up with any rights they like, as long as they justify them in accordance with the precedents and reason set forth in Common Law.

    Does the article you link to connect in any way to my formulation?

    Come to think of it, I once heard or read that one of the provisions of Common Law was that the Throne could not interfere with an Englishmen’s choice of imbibement. If true, maybe it’s a damn shame that the BoR was even drafted, as that may have been the death of the Common Law tradition, which may actually have been much more tolerant!

    Of course, it hasn’t stopped England from having a Drug War too….


    Heh, thanks! She’s quite inquisitive and often embarrasses me with her prediliction for asking questions! But sometimes I do learn something….

    Regarding distrusting government with unrevokable sanctions, I see your reasoning and would lean towards that position myself, but I sure wouldn’t want to bet all libertarians do!! But then, I often find that many libertarians are less interested in what I understand to be libertarian principles and more just into digging guns and hating taxes!!

  38. How does the libertarian argument about gay marriage extend to a union of say – 5 men and 3 women?

    Marriage as it has always been understood is 1 man and 1 woman. Changing the definition to be 2 men or 2 women or 3 parakeets and a giraffe is really not the business of the government.

    Obviously, the government should merely enforce contracts of marriage like any other contract, and leave the definition of that contract to the church or individuals concerned. People could then call marriage whatever they wished, and not worry so much about what their neighbors are doing.

    Although, since the government has so deeply entwined itself into the definition and practice of the culture’s most important institution, you can’t really be surprised about people’s resistance to it so suddenly and fundamentally changing the definition, and label them all as reactionary bigots.

  39. In my humble opinion, I believe the majority of people who are ardently against “marriage,” between homosexuals do so for what they would refer to as “moral,” reasons. And history is replete with examples of repression in the guise of morality.

    In other words, the “ick factor,” still influences many people’s supposed rational opinion.

    I would just like one person opposed to gay-marriage to explain to me how they will be harmed by it?

    PS Let’s just privatize marriage, get the government out of the business altogether and be done with it. Yeah, like that is going to happen.

  40. JDM, no, marriage has not always meant that. Many people in Utah still practice plural marriage, which was condoned by the Mormon Church till the US forced them to abandon the practice in order to become a state. I’m sure there are plenty of other examples, but I’m no history bug.

    And while I don’t doubt that someone somewhere calls all opponents of gay marriage “reactionary bigots,” I don’t think anyone here has done that, and if so (I’m too lazy to peruse each and every post), I’m sure it’s a minority view. So why bring it up?

  41. Pio,

    The war was unconstitutional because the federal government had no legitimate power to compel a state to remain in the union against its will.


    I agree your rights don’t come from the Constitution. But the federal government’s powers do. The Supreme Court is not a bunch of Platonic guardians appointed to enforce rights as such, or rights grounded in general morality, but to enforce the Constitution as a legal document. The federal government has no more power to stop infringement of civil liberties in a state, without some specific constitutional warrant, than it does to overturn the laws of Britain or France. State rights don’t trump people’s rights, true, but that doesn’t make the federal government the arbiter of people’s rights, either. Outside the states’ specific delegations of power to the federal government, Congress is as foreign to them as any European legislature.

    And BTW, references to being a “knee-bender” are especially unfortunate, given the topic of conversation.

  42. Pio — I am familiar with Randy Barnett’s POV and often agree with him. Nevertheless, it is sheer folly to assume that a majority of unelected lawyers should rule the whole country, merely because they are “scrutinized.” So are politicians scrutinized, by voters, to whom they are supposed to be responsive. They can be unseated and their laws repealed. Undoing judicial fiat is infinitely more difficult, and countenancing judicial rule is a supremely non-libertarian and anti-democratic notion. An unelected cabal of lawyers is responsive to no one: Dred Scott is not their only egregious error but it did have the most severe consequences. Once they have ruled, it can take a civil war to undo a mistake.

    Moreover, I do not wish to live in an oligarchy, not even one approved by the lawyers in the ABA. I prefer the checks and balances built into the democratic system bequeathed to us and the messy demands of arguing with and persuading my fellow citizens. Among other things, I am a lawyer, and let me assure you you do not want us ruling from the bench, beyond the reach of the people. Some of that is inevitable given acceptable levels of judicial review, but what you argue for is wholesale oligarchy by the ABA.

    What on Earth makes you think that a JD, and approval by a committee of other JDs, is the best credential for governing us? The New Deal was given us largely by lawyers and judges. Sure, if Randy Barnett, 9 of him, were on the High Court I could look the other way and accept rule by Philospher Kings, Esq., but that ain’t ever gonna happen.

    The founders knew this, and that is why they did not establish a 3rd Branch with the sweeping authority you would give it. Representative democracy will see imperfections, but these are not as bad as life under a small band of lawyers with whom you are stuck.

  43. “JDM, no, marriage has not always meant that. Many people in Utah still practice plural marriage, which was condoned by the Mormon Church till the US forced them to abandon the practice in order to become a state.”

    I don’t doubt that someone somewhere calls “polygamy” “marriage,” but I don’t think the vast vast majority of western culture accepts it as legitimate marriage. So why bring it up?

    “And while I don’t doubt that someone somewhere calls all opponents of gay marriage “reactionary bigots,” I don’t think anyone here has done that, and if so (I’m too lazy to peruse each and every post), I’m sure it’s a minority view. So why bring it up?”

    Not in so many words. The proponents of gay marriage like to say that the opponents are simply irrationaly anti-gay, and therefore oppose gay marriage. Since belief in marriage for anyone gay or otherwise is essentially irrational, that’s hard for me to swallow. The argument is over who forces who to believe in which fairy tale, so it’s impossible to have a rational opinion either for or against gay marriage.

  44. “The argument is over who forces who to believe in which fairy tale, so it’s impossible to have a rational opinion either for or against gay marriage.”

    That may be the most inane comment I’ve seen posted on this board. There are any number of rational opinions about gay marriage, including that the state has no business discriminating against same-sex couples in its conferring benefits; this position is not illogical. You do not demonstrate a grasp of what the word “rational” means.

    When gay partners are exempt from taxes, then denying them he benefits their heterosexual counterparts enjoy will be reasonable and fair.

  45. So, basically, it seems like most (but certainly not all) people in this thread think that any two (or more in Utah 😉 consenting adults should be able to enter into a legal arrangement with all the aspects currently accorded to legal marriages in this country.

    Some people think this should be brought about by getting the state out of the marriage business, and other think it should be brought about by extending the legal arrangement of marriage to include homosexuals. But almost everybody agrees that the state should let any two consenting adults enter into contracts with essentially the same aspects as marriage contracts under current law.

    So why are we arguing?

    Some people think that the proper way to make this happen is by getting federal courts to rule that states have no right to discriminate against homosexual couples. (And if you frame it as “any two consenting adults entering into a contract where they share responsibilities and property” it’s tempting to conclude that the 9th and/or 14th amendments cover this, since it’s framed as a sterile business arrangement rather than a “societal institution”.) The objection is that this is pulling a legal rabbit out of an unconstitutional hat.

    Other people think that a single state should legalize gay marriage (an eminently achievable goal in the next 5 years, I’d estimate) and the other states will have to recognize the marriages under the “full faith and credit” clause of the Constitution. The objection is that a single state can then set a policy that all 50 states are bound by, sort of defeating the whole federalist notion that the states all get to set their own policies within certain Constitutional boundaries. Of course, other federalists will then retort that if Vermont lets Michael Jackson marry a Catholic Priest the other states have no right to shoot it down.

    Still other people think that this should be done state-by-state, using the democratic process (with all the caveats that the people using the word “democratic” may or may not intend it in the “nightmare scenario” sense of “50.1% gets to dictate anything it wants to the other 49.9%”, and they may or may not mean it in the benign sense of “acting through elected officials.”).

    So, basically, we mostly agree on the ends (let private individuals enter into whatever arrangements they want without government interference) and we disagree on the means.

    Well, here’s my take: Sure, it would be ideal if all 50 states brought about this reform via their democratic/legislative processes. But that won’t happen, so the “full faith and credit” process is a reasonable way to do it. If the Constitution means what it says, then this is not a creative interpretation, it’s a downright literal interpretation. The state of Vermont will declare that George and Floyd share all legal and financial responsibilities, and the other 49 will just have to cope with it.

    As to using the 9th and/or 14th: If you separate the legal aspects of marriage from the emotional/spiritual/moral aspects of marriage, a marriage contract is a pretty darn sterile piece of business. Share property, power of attorney, etc. Seen in that light, a little bit of common law plus a _tiny_ bit of plausible creativity with the 9th and/or 14th amendments should suffice. The Constitutional creativity is far more benign than most of the Constitutional creativity we see nowadays, but I don’t think society is ready to sterilize marriage like that.

    So, here’s hoping that Vermont goes the final step!

  46. See, Clinton was articulate enough to refer to “same gender marriages.” I know plenty of heterosexuals in same sex marriages.

  47. The backlash was quite predictable, as the proponents of gay marriage are tackling this issue by taking end runs around the democratic process, using the courts and a handful of state legislatures to try to create a national gay marriage right, rather than doing the hard work of slogging it out state by state.

    One can only pray that this doesn’t create the kind of festering wounds that were put into play by Roe v. Wade.

  48. “Do you consider homosexuality an acceptable lifestyle?” I’m gearing up to nominate this the dumbest poll question of the year (saying a mouthful I admit, thus my hesitation). Some intellectually agile libertarian gent is going to have to explain why anyone anywhere should be concerned about my opinion on that tender subject, yes no or indifferent.


  49. “Other people think that a single state should legalize gay marriage (an eminently achievable goal in the next 5 years, I’d estimate) and the other states will have to recognize the marriages under the “full faith and credit” clause of the Constitution. The objection is that a single state can then set a policy that all 50 states are bound by, sort of defeating the whole federalist notion that the states all get to set their own policies within certain Constitutional boundaries. Of course, other federalists will then retort that if Vermont lets Michael Jackson marry a Catholic Priest the other states have no right to shoot it down.”

    thoreau — I agree. The Full Faith and Credit clause will be the linchpin, and as a so-called strict constructionist, I have no problem with that. If, as it must pursuant to that clause, a state recognizes marriages of heterosexuals from other states that could not licitly be enterd into in their own, and also recognizes dissolutions that would not be valid in their own jurisdiction, then there is no principled reason why the same could not and should not be true of same sex marriages and their dissolution.

    Unless, of course, the conservatives abandon their historic insistence that matters of marriage are the sole province of the several states. DOMA begins that hypocritical process, and the religious right seeks to continue it by constitutional amendment.

  50. RC, perhaps gays and lesbians are finally realizing that true liberty means not having to beg the indulgence of one’s fellow citizens (and legislators) to exercise a right that should be patently obvious; and are instead urging the courts to grant long-overdue recognition to an unenumerated but nevertheless basic right.

  51. Mona,

    Actually, the FF&C clause does not require one state’s acceptance of another’s gay marriages. The clause was based on the international law of comity, which included a huge loophole for disregarding another state’s law when it was morally repugnant to the state in question. For example, Blackstone said that slavery was so morally repugnant to the laws of England that any slave under the laws of another country would become free simply by setting foot on English soil. That’s why the comity clause had to be modified by the fugitive slave clause to prevent free states from freeing runaway slaves. Even so, free juries in the north often refused to enforce property in runaway slaves, thus compelling the federal government to pass fugitive slave laws without any common law due process for the accused.

    Which, by the way, brings us back to the issue of the states’ malfeasance in civil liberties that supposedly led to the civil war. The federal government, until the secession of 1861, was a central enforcer of slavery, and would have continued doing so had not the slaveocracy been so stupid as to secede and turn a likely lame-duck and doomed president into a president with majorities in both houses.

  52. Phil:

    The problem is, if the courts can enforce rights without regard to the actual text of the Constitution, they can also refuse to enforce rights that ARE in the text–the Fourth, Fifth and Sixth Amendments come to mind in the aftermath of 9-11. The Bill of Rights was created to reassure the peoples of the states that the *federal* government would be kept under restraints. Protection of civil liberty against state governments was rightly regarded as a matter for the peoples of the states to work out internally.

    The courts are just as much an agency of the state as the legislative and executive branches. So how is begging the indulgence of the courts to enforce a right based on the personal whim of judges any less of an indignity?

  53. “There are any number of rational opinions about gay marriage, including that the state has no business discriminating against same-sex couples in its conferring benefits; this position is not illogical. You do not demonstrate a grasp of what the word “rational” means.”

    You think? Irrational does not mean illogical.

    The rational opinion is that the state has no business giving people who live together benefits over people who do not whether they are gay, straight, married, unmarried, etc. It is irrational to propose solving the problem by adding more favored pairings to the already wholly irrational institute of state sponsored marriage. Gay men are free to marry any woman they want. Gay women are free to marry any man they want. They choose not to for irrational, though supremely important reasons.

    You can argue all day about what marriage is, but there is no basis for an appeal to reason about a term with no physical reality, especially when you are completely and obviously wrong about what the term has always meant to the vast vast majority of the culture you are arguing it with.

  54. Kevin — Yes, but the case law on “moral repugnance” is pretty narrow as to what laws may be denied comity, as must be so if the FFC clause is to have meaning. I do not think it would be improper to require a state to recognize the same-sex marriages of another. If opponents want to demonstrate “moral repugance,” let them try, but that is a heavy burden to meet, as it should be. Let them try to show decent people should pass out in horror at the prospect of two women enjoying all the same state-conferred benefits a man and woman enjoy when they marry.

    Subjective notions of moral repugnance are properly left to the purview of courts. I do not believe a majority of contemporary jurists would accept that Sue and Ann’s enjoying the same benefits as Sue and Ed could reasonably be described as repugnant.

  55. For any American, gay or not, when the government is an obstacle to liberty and the pursuit of happiness the courts are the prescribed course to take. This is not an end run, it is a charge down the middle.

    Personal liberty is not a whim of the majority in our Republic as it might well be, for instance, in a democracy.

  56. JDM – If you want to claim that no people should enjoy the benefits the state confers on married heterosexuals, fine. I find some of the arguments there persuasive, tho I’m leary of casually throwing out a whole body of family law that is embedded throughout the rest of our legal system. In any event, that position is not going to prevail anytime soon. In the meantime, these state-conferred benefits of marriage should not be denied to same-sex couples.

  57. Every perceived right is not automatically a Constitutional issue until the courts prove otherwise, or at least shouldn?t be.

    The default setting should be to the lowest community level and then move in ascension as the case warrants; city, county, state, federal.

    Gay marriage would be a state issue just as Roe v. Wade should have remained a state issue. Consider the Lawrence v. Texas ruling. Since the previous SCOTUS ruling in the 80s, over half of the states that had such laws had repealed them. I?m not trying to dredge up an aside here but I?m only making the point of letting the democratic process work and not to be circumvented by a handful of unelected judicial activists.

    If the court can grant you rights now found in the Constitution they can ignore or invalidate rights protected by the Constitution. You?re advocating the dismissal of Constitutional protection for the sake of one feel good issue.

  58. Kevin,

    Are you saying that it’s not worth getting the court to recognize unenumerated rights, because they might also interpret away enumerated rights? That sure seems to be what you’re saying, in which case why have a Ninth or Tenth — or Fourteenth — Amendment at all? Why not simply say, “The only rights we have are the enumerated ones” and have done with it?

    If you’re going to rely on the good will of your fellow citizens to be allowed exercise your rights, you’re going to be waiting a loooooong time. Majoritarianism is the antithesis of liberty.

    Ray, you seem to be saying the same thing. So is it your position that either we have no unenumerated rights, or that they are not worth pursuing and securing? What kind of liberty is that?

  59. “In the meantime, these state-conferred benefits of marriage should not be denied to same-sex couples.”

    Why not? Why should the benefits not be conferred to same sex couples who live together as roomates but are straight as well? Because they are not participating in a marriage as the culture understands it? Neither are gay couples. It’s somewhat puzzling to me to watch libertarians support using the state to effect cultural change. (Not that you consider yourself libertarian, but some do.)

  60. “The problem is, if the courts can enforce rights without regard to the actual text of the Constitution, they can also refuse to enforce rights that ARE in the text–the Fourth, Fifth and Sixth Amendments come to mind in the aftermath of 9-11.”

    They are not enforcing rights w/o regard to the constitution, they are just enforcing rights that are not enumerated by the constitution. These are still protected by the text, in the 9th and 14th amendments.

    “The Bill of Rights was created to reassure the peoples of the states that the *federal* government would be kept under restraints. Protection of civil liberty against state governments was rightly regarded as a matter for the peoples of the states to work out internally.”

    It was regarded as such originally, but the various abuses of federalism leading up to the civil war convinced the country to pass the 14th amendment, which among other things force the states to not violate the people’s rights (and liberty).

  61. “why have a Ninth or Tenth — or Fourteenth — Amendment at all? ”

    Many people agree with that sentiment. Robert Bork, in his confirmation hearings, referred to the 9th amendment as a meaningless “inkblot” .

  62. And JDM —
    In ordinary discourse, when one lacks reason one lacks the capacity for logical, rational, and analytic thought. There is a strong relationship between the rational and the logical, and that relationship entails reason. Many of the arguments about same-sex marriage are mired in reason, and are therefore both rational and logicl, because they are grounded in reason.

  63. What possible benefit can be articulated for excluding Gays from marriage? What or who is being protected? What exactly is the benefit that such an amendment is designed to protect?

  64. “Not that you consider yourself libertarian, but some do”

    I am so libertarian it must show up in my DNA samples.

    “Why should the benefits not be conferred to same sex couples who live together as roomates but are straight as well?”

    Because straight people have the option to secure the benefits with an object of their erotic affection, and gay people do not. To take an example of a dear friend of mine, he has been partnered with the same man for almost 9 years, but his partner is a foreign national. They play all kinds of games proving that he (the partner) is entitled to be in this country by virtue of supposedly peforming labor that the American workforce cannot adequately supply. This is bullshit, and if they were straight they could marry and secure a benfit their staight counterparts enjoy, namely, the knowledge that one of them will not at any moment be deported.

    Now, as a libertarian I do not believe in the immigration restrictions on the partner, married or not, straight or gay. But I share the outrage these two feel that, given the restrictions, and as taxpayers, they have a sword of Damocles hanging over them that straight people do not have to fear. These two must live in the real world, and in the real world, real gay people every day see inequitable treatment that their straight counterparts can avoid.

  65. Ray: The court cannot grant me any rights.

    My rights are innate. The courts may rule, correctly or incorrectly, in reference to those rights. Nobody grants me anything. I am not a knee-bender who comes begging to those who may style themselves my betters – whether by assumptive power or virtue.

    I am not the one turning the Constitution inside out over a single issue. Nor do I believe that the States have any more authority to abridge any liberty (and I do not mean license) than the federal government. States Rights do not trump People’s Rights.

    In case anyone isn’t reading between the lines, I am a libertarian. I don’t particlarly feel good about this or any other issue while people cling so to authoritarianism.

  66. My understanding from ol’ college days was that the point of the 9th Amendment was to acknowledge that the (legal) basis of all our rights lay in the tradition of English Common Law , a series of judicial decisions made over centuries thoroughly independent of any sort of ennumerated Bill of Rights, which England did not and still does not have. The 9th Amendment goes on to say that, hey, if we forgot anything (that’s established by Common Law), that don’t mean it’s now gone. Based on this, I would say that it’s perfectly in keeping with strict Constitutional interpretation to invoke a right that’s not spelled out in the BOR if either (preferrably) it was clearly laid out by the Common Law tradition or (more of a stretch admittedly) is seen as in keeping with the principles that underlay that tradition. To simply say, we think there should be a right to X and we invoke the 9th Amendment isn’t good enough. But ultimately, there’s always going to be differences in interpretating such a vague and dated system. Unfortunately, we’re already at the point where the SCOTUS does just about whatever they want without regard to strict Constitutional interpretation, and I don’t know what can be done to remedy that….

  67. Glad to hear the President of the USA, a secular nation whose “separation of church and state” is stated in the First Amendment of the Constitution and the historical writings of its Founding Fathers, referring to all of the country’s citizens by saying that “we’re all sinners”. That’s really tolerant of freedom of religion.

    The President can have his/her own personal religious views, but the law of this country forbids those views from being imposed on anyone else via the legal system. When you approach a legal issue starting out from a religious perspective (that has been developed from a collection of oral stories of uneducated, nomadic wanderers from 2,000 – 5,000 years ago that make wild, unsubstantiated claims that have never been objectively verified and in fact violate the known laws of nature and science), you invite and deserve ridicule.

    Philosophy and the law does not require God or religion in order to work, and that is what the US Constitution recognizes. (And any reference to the “Creator” in the Declaration of Independence is cleary a description of the Founding Fathers’ general Deism and is not a reference to any “Christian God” or any other currently popular religion’s God as a cursory study of history easily demonstrates.) Philosophy and the law require reason, logic and consistency. Apply these principles to an issue and you will be able to have a rational discussion about that issue.

  68. What possible benefit can be articulated for government sanctioning and defining marriage at all? What or who is being protected? What exactly is the benefit that such an amendment is designed to protect?

    It is of no benefit and no responsibility for any secular government to manage a religious/cultural institution in this way.

  69. A “cursory study of history” appears to be all JJB has done, not only because he appears to confuse the entire generation of the Founders with Madison and Jefferson but also because the great majority of Presidents, Supreme Court Justices and other leaders of American society since would have found Bush’s language unexceptionable, and the idea of gay marriage revolting.

    Now maybe that means they were just religious, authoritarian pygmies compared to the current generation’s libertarian giants, but I doubt it. On the contrary, caution is indicated when considering the idea that a practice that has only occasionally even been imagined in over two centuries of living under the Constitution is now to be considered a right protected by the Constitution. The idea that this right ought to be established by judicial fiat in order to be free of any taint of consent by the majority is even more suspect, however consistent with the best current libertarian theory.

  70. The fact is, the arguments for Christianity and all its trappings are so pathetically weak that the only way the can attain influece is via force. That’s why they’re political. Tolerant, rational people don’t become politicians. They live their lives as if they were free.

  71. I’m a Libertarian who got married in the Catholic church a month ago.

    When my wife and I made our vows to love, honor, and cherish, till death do us part, in the presence of family, friends, and the Lord, we were married in the only sense that really matters to us in the end. The government has NO jurisdiction over that, thank God!

    However, to make our lives somewhat easier in regard to property, inheritance, medical decisions, etc., we also went to the courthouse and got a marriage certificate. We signed a legal contract saying (in a nutshell) that we take full legal and financial responsibility for one another and everything that we own or do (please, nitpickers, don’t start tearing this apart, you get the gist). The government has applied the word “marriage” to such a legal arrangement.

    Now here comes the obvious question: Why should ANY government, be it state, local, or federal, bar two consenting adults (or more, if you live in Utah 😉 from agreeing to share what they have and take responsibility for one another? It shouldn’t matter whether the adults are a young man and woman in Santa Barbara, two men in San Francisco, two cousins in Alabama, or 5 adults in Utah.

    If the right to share property and responsibility with another consenting adult via a contract isn’t covered by the Ninth Amendment, then what is?

    So, basically, here’s how it breaks down:

    Moral, social, religious, and family aspects of marriage: None of the gov’t’s business, any two adults can make those vows if they wish.

    Legal aspects of marriage: A contract that any two adults should be abel to enter into, as a matter of personal sovereignty and property rights.

    Finally, why on earth should this type of contract be a federal matter? Doesn’t Bush have any regard for the 10th amendment? Oh, wait, dumb question 😉

  72. Scott Harris:

    AMEN! I could not agree with you more!
    God isn’t going to help us, if not even the courts will protect our liberties any more!

    What business of anyone, especially politicians, is it to withhold benefits from any group because they don’t like that group’s “lifestyle”? Provided that lifestyle doesn’t infringe on others. And even then it often is a give-and-take issue of what constitutes infringement.

  73. The Ayatollah shows his ignorance in his comment re: “gender” vs. “sex.” Gender is applied to the masculine-feminine distinction in French & Spanish, for example. Sex refers to “male” or “female.” Gender has since replaced “sex” as the prissified way to ask the same question, and has hence become the PC-ignorant way to refer to one’s sex.

  74. Scott,

    I’m not doing anything with the Constitution, turning it inside out or whatever.

    Read the Federalist Papers and other related documents and try to understand the reason the Constitution was written to begin with. To protect our rights by limiting the government’s power. If it is not explicitly a a federal matter, decide as close to home as possible.

    It feels good to you and others to have such things decided by judicial fiat but that doesn’t jive with the long run protection of a free people being to decide for themselves on how to live.

  75. thoreau,

    You sum up the issue from a libertarian POV pretty well, which, as it usually does, pretty much comes down to individuals can do whatever they want and the government’s role should be limited to enforcing valid contracts between consenting adults, making the central yay or nay dilemna moot. Hard to argue with that!

    However, Virginia Postrel does just that here:, where she argues that it’s necessary for the governemnt to take a stand (preferrably in favor of allowing gay marriage). I think her argument essentially comes down to the complications and inefficiencies inherent in making the marriage contract a free-for-all. I’m not sure whether I agree with her or not, but I think it’s worth considering her POV before we all happily wash our hands of the question on the grounds that the government just shouldn’t be involved in the first place….

  76. “For any American, gay or not, when the government is an obstacle to liberty and the pursuit of happiness the courts are the prescribed course to take. This is not an end run, it is a charge down the middle.”

    My point is that seeking political goals (the legalization of abortion and/or gay marriage) without going through the political process opens up deep and festering wounds in this country. For a handful of judges and state legislators to create gay marriage (for this is how it will be perceived) for the entire nation (for this is the avowed strategy of gay marriage activists) will very predictably create a backlash. After all, the militant feminists created a deep and lasting division that poisons our politics to this day by asking the courts to create a right to abortion (for so it has been perceived) rather than doing the heavy lifting of getting abortion laws legislatively repealed state by state.

    I am not positing any opinion on gay marriage or abortion rights in predicting that going the judicial activism route will exacerbate tensions in the long run.

    As it happens, I think people should have the right to an abortion early in their pregnancy, but that Roe is terrible Constitutional law because it displays contempt for the text of the Constitution (“emanations of penumbras” my ass).

    I also think that the states should be free, but not required, to amend their marriage laws to recognize gay marriages. Anyone who believes that the current route being pursued by gay activists will not create a bitter and brutal backlash and generations-long divisions ignores history at their peril.

  77. The 9th Amendment, as well as the 10th, are limits on federal power. Seeking to employ them to overturn a state law is perverse at best, and not something one would think libertarians would countenance.

    Of course DOMA and Bush’s latest pronouncments are outrageous. The federal government has historically not involved itself in domestic issues such as marriage, and indeed over a century ago our federal courts developed a doctrine whereby they refuse to hear and decide matters that might make rulings impinging on divorce or divorcing parties per se. (This is a form of federal abstension doctrine known as the Domestic Relations Exception, for anyone interestd.)

    The 9th and 10th amendments do not properly impede states regulating weho may marry and how they may divorce, and neither is there any warrant for homophobes to pass federal legislation to forbid gay couples from marrying.

  78. Ray,

    I believe you and Scott really have the same concern: How to limit overbearing government. Your difference appears to be in who does the limiting. There is ample proof in history, that people deciding for themselves, usually means a strong-armed group reaping the benefits of making decisions with the support of the indolent and unwitting majority. There has got to be an institution to regard the concerns of the minorities (of any kind): an independent judiciary. I fail to see why you insist on using the loaded catchphrase “judicial fiat” for the work of a quintessential institution of a free people.

  79. It feels good to you and others to have such things decided by judicial fiat but that doesn’t jive with the long run protection of a free people being to decide for themselves on how to live.

    The problem is that these “free people,” by amassing the power of majoritarianism, are also deciding that other people shouldn’t get to enjoy the same freedoms. That’s simple, bullying, mob-rule, no matter how it’s achieved.

  80. Fyodor:
    Barnett basically says that the history of the 9th amendment should lead one to assume that it covers an infinite spectrum of rights, so any law that confines any right should be presumed unconstitutional unless the government can connect it to a significant interest, ie those that are enumerated in the constitution.

    Mona: I am not supporting general judicial rule, I am saying that the courts are far better at protecting minority rights than a legislative body. Politicians are scrutinized by the voters, thats true, but therein lies the problem. They are held responsible to the majority of voters, and are therefore less likely to do anything to protect that majority from the minority. Besides, cases where the court hurts minority rights, like Dennis and Plessy, are usually cases where the court has upheld laws that hurt minority rights (Scott is the exception). You are atttacking the courts for agreeing with that legislature of yours.

    Oh, and its definitely possible to “fix” judicial rulings, just pass an amendment. The 16th amendment was passed that way, and probably others which i can’t remember. The problem comes along when the majority of those voters cant agree on the amendment.

  81. I think that we are mostly agreeing on the ends, but the means for getting there is very important and definitely worth a debate. The Founders, after all, told us very much about process, but not really that much about results.

    First, do not assume that just because one state recognizes gay marriage that all states will be forced by the full faith and credit clause to go along. After all, concealed carry permits aren’t portable from one state to another, so why should marriage permits be.

    Second, I am all for courts protecting minority rights against majoritarian abuses. However, I prefer the rights that are protected to be pretty clearly set forth in the Constitution, and I do not see any Constitutional basis for overturning state laws that prohibit gayt marriage.

    For the Court to inject itself into hotly contested social/moral issues is a recipe for political disaster. Most recently, the abortion decisions set of two generations political warfare. Even if you agree with the ends, not every means is appropriate.

    The tide is running in favor of the gay activists, but if they try to force the pace too much, they are liable to create a backlash and harden some positions unnecessarily. That is all I am saying.

    Libertarians, of all people, should be very suspicious of rule by 9 judges. There is nothing inherently libertarian in the Supreme Court, and it is considerably less accountable than any elected legislature. Accountability of public officials is a good thing, remember? The proper role of a Supreme Court is to check government abuses, not to sit on the cutting edge of setting societal norms. Thataway, gentlebeings, lies the “vanguard of the proletariat” and I don’t think you want that.

  82. It’s interesting to see all of this debate over the meaning of the 9th and 14th amendments to the US Constitution, but the most likely case of a judge ruling same-sex marriage is in Massachusetts and none of the plaintiffs arguments rely on the US Constitution at all.

    Their arguments all rely on the Massachusetts Constitution. In fact their first argument isn’t even a constitutional argument. They point out that nothing in Massachusetts law prohibits same-sex marriage. There are some words (like husband, wife, etc.) that have traditionally implied a certain gender, but since the Mass. pasaage of the ERA statutes with gender specific words have been interpreted in a gender neutral fashion when possible.

    I don’t know what the Mass Supreme Judicial Court will rule, but it won’t have anything to do with the US Constitution. Some may argue on whether the US Constitution will require other states or the Feds to recognize such marriages (or to what extent to recognize such marriages), but the Feds have no business telling Mass how to interpret Mass law.

  83. A couple points about the law.

    The right to get married under the Constitution, as explained in Virginia v. Loving (how appropriate) is the right of a person of any race, to get married to a person of the opposite sex of any race. It’s not a right to “marry anybody I want to marry” because corporations and sometimes governments are people under the law, and God knows, nobody would want to be married to Enron or the State of Massachusetts. (Welfare recipients notwithstanding).

    The Full Faith and Credit Clause as Kevin pointed out above provides for “comity” between the states. Each state generally tries to recognize the equal dignity (sovereignty) of the other states, and tries to give effect to foreign state court and legislative judgements, where giving effect to them would not be contrary to the laws of the state, or its public policy.

    One of Congress’s powers, however, is to determine the effect that the laws of one state, will have in another state. This is how the Defense of Marriage Act operates. It commands that no state shall be forced to recognize a gay marriage or civil union authorized in another state.

    The problem for opponents of gay marriage faced with constitutional challenges is two-fold.

    First, Romer v. Evans in 1986 held that a government actor cannot single out an insular minority for “worse” treatment than the majority would get. In Romer, the court struck down a Colorado constitutional provision which stated that no locality could accord special rights to homosexuals — e.g. job preferences, or special social or professional functions for gays. The reasoning was cloudy, but arguably DOMA singles out gays for “worse treatment”. After all, if straight people can get married… Should a court ignore the distinction I made above with respect to Loving v. Virginia, then Congress’ power to determine how one state’s gay marriage laws are interpreted in other states is abrogated by Romer. In other words, DOMA would be struck down.

    The other problem is that states opposed to gay marriage (or for that matter polygamous or polyamorous marriage) might be forced to give Full Faith and Credit to G/P/P marriage thanks to Lawrence v. Texas. The narrow holding in Lawrence found that the right to sodomy is well entrenched in the common law. That wasn’t exactly true, but Justice Kennedy said it, so it is de facto true, and there is a right to consensually sodomize pretty much whoever you want to sodomize. The broader holding was that morals and tradition can never form a rational basis for a public law. This wasn’t directly stated, but it is a holding of the case, because Justice Kennedy stated that whether morals and tradition could be the basis for a law was the central question, and in striking down the sodomy law, answered it in the negative.

    (By the way, Hayekians should be alarmed and panicked by this holding in Lawrence… it is radically anti-Hayekian…)

    Anyhow, the defenses against an assertion of G/P/P marriage under Full Faith and Credit are that a state’s public policy or law forbids recognition of gay marriage. Since morality and tradition can’t form a rational basis for a law (and by extension for public action) then a state’s assertion that “foreign state” G/P/P marriage is void on public policy grounds will be struck down. Likewise, a denial of marriage rights to gays, while allowing it to heterosexuals, would be singling out an insular and distinct minority (gays) for treatment worse than that meted out to heterosexuals. So the law of a state not recognizing or expressly forbidding gay marriage is likely invalid.

    Theoretically, the Full Faith and Credit clause is a discretionary notion. Courts of a state are free to exercise broad judgment in determining whether to apply a “foreign” state’s laws. However, the present Supreme Court majority is given to fabricating history and ignoring inconvenient laws and legal doctrines in order to keep in step with the latest trends among the legal elite, so I wouldn’t count on anything happening.

    In all likelihood, if the question of gay marriage comes before the Court, the court will look to see what the academic and media elite think, and then it will make up some rationale to get to the desired result. The violence to the fabric of the law will be terrible, but as long as we are content to be wussies and hand off all the difficult social questions to the Court, rather than duking it out in the legislature and at the polls, it’s what we should come to expect.

  84. Here’s another place to look:

    Article I, Section 10: “No state shall…pass.any law impairing the obligation of contracts” (the …. is because it’s a long list of things that states may not do).

    Suppose that two men draw up a contract. They agree to share their property, their legal and financial responsibilities, etc. etc. They cover all of the same bases as a marriage contract. They grant each other power of attorney. So, basically, they have a marriage contract without the word “marriage” at the top of it.

    (Some gay rights activists would say “That isn’t good enough” because they want society to APPLAUD their union, not merely recognize and enforce it, hence they want the word “marriage” on the paper. Well, what’s in a name? A gay marriage by any other name would still confer legal protections. But that’s another issue.)

    So, these two men have their contract with all of the same provisions as a marriage contract. The state then says “Sorry, this is invalid, we don’t let men grant each other power of attorney and share property.” Can they say it’s unconstitutional for the state to impair the obligation of their contract?

    I know, I know, the states have passed plenty of other Big Government laws that impair the obligations of contracts. I’m not holding my breath for that Constitutional provision to actually be enforced any time soon. I’m merely asking if, in principle, this is a valid Constitutional argument.

  85. Why do people constantly associate liberals and Clinton, “As liberals gear up to bash Bush for his reactionary thinking on this point, they ought to remember the actions of the only twice-elected Democrat president since FDR. When Bill Clinton…” Any serious liberal would not consider Clinton as a liberal, so why do other constantly imply that Clinton was a liberal or loved by liberals?

  86. EMAIL:
    DATE: 01/20/2004 11:40:19
    One must be poor to know the luxury of giving.

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