Rebels Without a Clause

The hazards of legalizing gay marriage through the courts

Last week the Vermont legislature overrode the governor to legalize gay marriage. The week before, the Iowa Supreme Court achieved the same result by overriding the state legislature, declaring a 1998 ban on same-sex marriage unconstitutional.

For those who agree (as I do) that the benefits of civil marriage should be available to all couples regardless of sexual orientation, does it matter how we get to that destination? I think it does, because the approach taken in Iowa, although liberty-enhancing in this case, ultimately undermines a constitution's ability to constrain government action and protect individual freedom.

The seven-member Iowa Supreme Court unanimously ruled that limiting marriage to heterosexual couples violates the state constitution's guarantee of equal protection, which it said "is essentially a direction that all persons similarly situated should be treated alike." It seems safe to say that neither the constitutional convention delegates nor the voters who approved this provision in 1857 would have agreed that two people of the same sex and two people of opposite sexes were "similarly situated" and "should be treated alike" under civil marriage laws.

In fact, that remains a minority opinion in Iowa. Last month a University of Iowa survey found that only 26 percent of Iowans supported gay marriage.

The Iowa Supreme Court overrode the majority's view by reinterpreting the equal protection clause to mean something it did not mean when it was adopted. "Our responsibility," the justices explained, "is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time."

Here we are not talking about applying a constitutional provision in a way consistent with the original public understanding of it (for example, by extending the First Amendment to television or the Fourth Amendment to electronic records). We are talking about applying a provision in a way the people who ratified it would have rejected. How can a right that was "unimagined" in this sense be a constitutional right?

According to the court, "equal protection can only be defined by the standards of each generation." But if the justices had defined equal protection by the standards of this generation (in Iowa, at least), they would have let the gay marriage ban stand.

"The point in time when the standard of equal protection finally takes a new form," the court said, "is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change." Let's be frank: Under this approach, it does not take "one, or many, individuals" to change the meaning of the constitution. It takes exactly four.

As the court noted, legislatures draw distinctions between groups all the time. They establish criminal penalties, impose age restrictions, and set conditions for government benefits. If such policy judgments violate equal protection whenever four justices disagree with the reasoning behind them, the line between what judges do and what legislatures do begins to disappear.

Worse, this sort of result-oriented jurisprudence cannot be confined to decisions that limit government and expand freedom. If courts can reach "a new understanding of equal protection" that renders invalid heretofore constitutional laws, they also can reach a new understanding of the First Amendment, allowing restrictions on political speech in the name of fighting corruption, or the Commerce Clause, allowing the federal government to intervene in areas previously reserved to the states or the people.

In these and other cases, changing conditions are said to require reinterpretation, and since no constitution is perfect you or I may occasionally like the results. But over the long term we cannot count on an evolving constitution to protect our rights.

© Copyright 2009 by Creators Syndicate Inc.

Comments

[Mad Max]

From the article:

'If courts can reach "a new understanding of equal protection" that renders invalid heretofore constitutional laws, they also can reach a new understanding of the First Amendment, allowing restrictions on political speech in the name of fighting corruption, or the Commerce Clause, allowing the federal government to intervene in areas previously reserved to the states or the people.'

Establishing 'gay marriage' is another example of using illegitimate means to reach an illegitimate end.

Marriage has already received several serious wounds, in the form of unilateral divorce on demand (which is allowed in most states) and the equalization of marital and nonmarital relationships. The establishment of gay marriage can be compared to going around the battlefield and shooting the wounded. Marriage has already suffered numerous defeats in this country, and the same-sex farce is simply adding insult to injury.

[jtuf]

In these and other cases, changing conditions are said to require reinterpretation, and since no constitution is perfect you or I may occasionally like the results. But over the long term we cannot count on an evolving constitution to protect our rights.

My thoughts exactly.

[jtuf]

Mad Max, if you want to strengthen the institute of marriage, try giving it positive support instead of fighting agianst other people's fundamental contract rights. Establish a marriage counseling center or host gatherings for your friends to meet prospective spouses. You could even work to remove some of the barriers young adults face when they try to start a family. The high cost of housing and the entry barriers to many professions make it difficult for a young adult to start a family. Relaxing zoning laws and licensing requirements would help in these areas.

[The Angry Optimist]

As the court noted, legislatures draw distinctions between groups all the time. ...If such policy judgments violate equal protection whenever four justices disagree with the reasoning behind them, the line between what judges do and what legislatures do begins to disappear.

There is rhyme and reason to it, though. The levels of scrutiny that the judiciary uses is a good place to start. For one, there is no policy reason for this type of discrimination. We can at least see a rational basis for the policy of setting age and ability limits; what's the policy reason (and none of the ones offered by the state in the IA case pass the laugh test, frankly) for this type of discrimination?

Here we are not talking about applying a constitutional provision in a way consistent with the original public understanding of it (for example, by extending the First Amendment to television or the Fourth Amendment to electronic records).

This is an opinion. "Cruel and unusual punishment" is certainly interpreted in a way that is not in line with the visions of the Founding Fathers. What of that?

I appreciate the sentiment behind the article, but I do not think this decision was wrongly decided. I DO think it would have been wrong for the California Supreme Court to have invalidated Proposition 8, and that's because the people of the State amended the Constitution. If Iowa wants to enshrine gay marriage bans, let that state amend its constitution.

Mad Max,

Establishing 'gay marriage' is another example of using illegitimate means to reach an illegitimate end.

In what is same-sex marriage "illegitimate" and a "farce"? And in what way would same-sex marriage "wound marriage"? You've presented a tautological and empty, circular argument. "Gay marriage is bad 'cause it hurts marriage, and marriage is hurt by TEH GAYS!"

Make an argument that stands or admit your bigotry.

[Michael Ejercito]

"Cruel and unusual punishment" is certainly interpreted in a way that is not in line with the visions of the Founding Fathers. What of that?

It is wrong.

[VM]

interesting read, TAO! thanks!

it must be sad to be like mad max, "dickhead2", where they are so weak. such weakness.

...

[Fluffy]

It seems safe to say that neither the constitutional convention delegates nor the voters who approved this provision in 1857 would have agreed that two people of the same sex and two people of opposite sexes were "similarly situated" and "should be treated alike" under civil marriage laws.

This is irrelevant. They wrote the words "equal protection". If they were hypocritical cowards who would not apply those words literally, or if they lacked the imagination to see how far those words could be stretched, then it's their own damn fault for being hypocrites or fools. Once you pledge the state to equality or liberty I am entitled to push that to its most "extreme".

Here we are not talking about applying a constitutional provision in a way consistent with the original public understanding of it (for example, by extending the First Amendment to television or the Fourth Amendment to electronic records). We are talking about applying a provision in a way the people who ratified it would have rejected. How can a right that was "unimagined" in this sense be a constitutional right?

Maybe about 90% of the free speech cases decided by the SCOTUS in the 20th century would be reversed if we applied this standard. Is that really what you're endorsing? If the US attempted to re-impose the power of the state to restrict speech that existed in the first half of the 19th century, when the founding generation still lived, it would be time for open revolution and blood in the streets, babe.

According to the court, "equal protection can only be defined by the standards of each generation."

I would agree that this is false and incorrect. "Equal protection" has one meaning and one meaning only, and it crosses all generational lines and applies to all contexts: it means the most absolute and complete obligation on the part of the state to treat all citizens equally that one can imagine.

It actually DID protect gay marriage immediately upon ratification. The state merely failed to justly apply it until now.

[wanna opt out of ubiquitous nu]

Gay Marriage by Judicial Fiat

So now it'll be mandatory. Just what I predicted.

[It\'s all about enforcement]

A strictly interpreted constitution that isn't enforced doesn't protect rights, either.

[Hugh Akston]

Oh goody, another gay marriage thread.

This should be a productive discussion.

[How many times do I have to sa]

Those persons who are attracted to the same sex are and were "equally protected," yes, even when it came to marriage.

[Thomas O.]

I've been married for almost six years to a wonderful lady. Our marriage is strong and happy, and we love each other greatly. And these neo-Puritans would have me believe that same-sex marriage is going to weaken or destroy all that. Two men in a loving relationship wanting to marry each other? More power to 'em! It doesn't diminish the love I have for, or my desire to stay married to, my wife one iota. Once we get past all the right-wing scare tactics, gay marriage will be a non-issue.

[BruceM]

How can a right that was "unimagined" in this sense be a constitutional right?

Jacob you're someone with whom I agree practically all the time, especially re: drug prohibition, but I think you're wrong here. First of all, I'm sure homosexuals at the time the Constitution was written dreamed of and imagined being able to get married and enjoy the legal benefits thereof like everyone else, but quietly kept those dreams to themselves. Regardless, this is ultimately the problem with "originalist" theories of constitutional interpretation. All else being equal, we should first ask what the framers intended or thought about by the words they wrote. But to suggest they intended to limit the rights of Americans to only those that they could have imagined at the time of the framing is quite ignorant and it doesn't give the framers their fair shake - these were very intelligent people. Questions like whether self-aware, sentient robots should have basic civil rights are things they could not have "imagined" at the time but that doesn't mean the costitution doesn't protect such rights.

Constitutions should be interpreted with a presumption of liberty. A presumption that they intend to convey rights, not limit them. The Constitution and Bill of Rights are clear that they only list some rights, and that it's not an exclusive/exhaustive list nor should it be interpreted that way (expressio unius est exclusio alterius). That's a clear product of the Federalist/Anti-Federalist debate but at the very heart of it is the realization that there are rights out there that we have not yet thought of. That goes for the framers and it goes for us. One day we could be talking about rights based on genetics or other sciences not yet fully developed. Transgenic rights - if you're a human-dog chimera, do you still have rights under the Constitution? If such human-dog hybrids become police officers, can they use their superhuman sense of smell to sniff out probable cause that regular humans can't smell? The question of whether you have a reasonable expectation of privacy against scent-based sniffs of superhuman dog-men police officers was certainly unimagined at the time of the framing, but that doesn't mean the Constitution doesn't answer the question.

Finally, Constitutional issues based on the advancement of technology are far more plausible than constitutional issues that arise merely because a particular minority, like homosexuals, is willing to publicly identify itself as its members are no longer scared of being instantly murdered, or because people are more willing to question the propriety of religion holding sway over law.

Finally, I don't buy the "slippery slope" argument for one second, and as someone who wants to end drug prohibition I think it's quite irresponsible of you to make such a lame, baseless argument. I'd like to think that you'd have no problem with a court affirming and recognizing our fundamental human right to self-medicate or freely alter our consciences with drugs. There's no such thing as an irresponsible way to recognize a basic right.

[Ben]

Jacob Sullum says:

We are talking about applying a provision in a way the people who ratified it would have rejected. How can a right that was "unimagined" in this sense be a constitutional right?

Well, let's step back and look at this.

According to your reasoning, blacks have no rights. Because at the time the constitution was written, they weren't considered people. And you're perfectly ok with this. The only mention of race in the constitution is amendment 15, ca. 1870 or so. Which refers to voting. Still doesn't give 'em the right to sit in the front of the bus today. You know, with "people."

But wait! There's more! Get these Judaic Carving Knives free if you Order Now! In Hitler's Germany, Jews were considered less than human, and treated accordingly. The law and general public opinion were pretty much aligned. But that's ok with you, right? No reason for any thinking German to say, "hey... wait a second..."

Or perhaps, is it the duty of the few people who can actually think to look at the general intent, the healthy core of the ideas presented in things like constitutions, and say "ok, hold on. Clearly, the people are prejudiced or wrong or whatever, and these core ideas need to be enforced in a more even handed manner."

The same way, yes, the EXACT same way, that a correctly thinking person looks at electronic documentation and communications and finds that the 4th amendment does indeed have a core that applies to these issues unconsidered by generations past; and consequently, they try to protect it against the poor interpretations of the current crop of flaming idiots in the judiciary, executive and various legislatures.

And Reason writers!

Jacob, your argument is essentially "the people that wrote the constitution were prejudiced, so it's ok if we enforce their ideas in a prejudiced manner."

The whole idea of a constitution in a republic is to override the general populace AND the legislators with regard to certain ideas. It's not a democratic mechanism. It's not populist. It's about the best and brightest trying to see to it that the tyranny of the majority doesn't hammer any particular minority. EVER.

As soon as you find yourself digging for arguments that disadvantage a minority defined only by their personal, consensual choices, you, sir, have failed the test of being a sensible advocate for liberty. Liberty isn't about a democratic mindset. It never has been, and it never will be, or at least until the populace has the benefit of some significant genetic engineering so that median IQ no longer means "drooling, populist culture following, superstitious idiot."

[The Angry Optimist]

There is such a way to be irresponsible with basic rights. Would you like a Libertarian Dictator? You might have basic rights for a while, but you won't have stability in that governance model.

[Solana]

This is getting old, Sullum.

[The Angry Optimist]

*There is such a way to be irresponsible in recognizing basic rights

[The Angry Optimist]

Solana and Others - the arguments have been laid out, and reasonable people can disagree, but being dicks about it is dead wrong.

[The Angry Optimist]

Look, do libertarians want a top-down, one-size-fits-all government, do they want a mix of bedrock rights and state autonomy, or total state autonomy, rendering the Ninth and Tenth Amendments tautologies?

Before you people try to go after Sullum, think this shit out.

[dhex]

"And these neo-Puritans would have me believe that same-sex marriage is going to weaken or destroy all that."

speaking of marriage like it's a person or an animal seems kinda misplaced. yet people do it.

hell, i'd go so far as to say two men or two women who don't really love each other aren't going to affect my marriage. other straight couples who are making shitty marital decisions aren't going to affect my marriage either.

it's more like a fear of folk magic or witchcraft than anything concrete.

[Anon]

Ben,

Even if we assume that the constitution said what you ascribe to it, we are discussing the 14th amendment here, and it is pretty obvious that it made everyone citicenz and afforded them the same rights, etc.

Fluffy,

As much as I like the result, the equal protection clause does not mean, or at least was not meant to mean, what you think it means. "Equal protection of the laws" only means "treat all citizens equally" by perversion of the phrase. A large amount of the work the equal protection clause does should be done by the privileges and (or?) immunities clause. Again, I like the result, but lets not miss the forest for the trees.

[brotherben]

tao, libertarians, like everyone else in the U.S., want a government that perfectly represents their beliefs concerning society. And as with the Bible, we all interpret the constitution according to our beliefs and desires.

We all approach the rules with whims of iron.

[Solana]

Solana and Others - the arguments have been laid out, and reasonable people can disagree, but being dicks about it is dead wrong.

*yawn

[The Angry Optimist]

Isn't that cute? Solana cannot join the discussion on an intelligent level, so he's going to pretend to be bored by it.

Poor baby...sorry we're talking over your head. Should we only use monosyllabic (oops) words from now on?

[peachy]

TAO, you may have noticed that Reason writes three kinds of articles on gay marriage - 'doing it through the courts is undemocratic/provokes a backlash', 'extending conventional marriage retards the effort to get government out of the business altogether', and 'they probably didn't mean the law that way when they wrote it.'

Judging from the vexation expressed in the thread, I'm not the only one who thinks they didn't need to go over old ground yet again; find a new angle, put a link to the archive, or just talk about something else. It's the same reason the two Youngs get a consistently negative reaction - it's not so much that people disagree with them (although there's a lot of that), it's that they never say anything new.

[Solana]

Haha!

TAO, I am bored by it. We have this exact same discussion every few days. Consider the dead horse beaten. Also, no need to be a dick!

[The Angry Optimist]

we do? we had the discussion about the role of the federal government's interference (or alternatively, protection of bedrock rights) vis-a-vis the states, and what libertarian beliefs on those interferences are? We talked about the Ninth, Tenth, 14th Amendments and the Due Process/EPC?

I missed that.

[The Mythical Canadian Libertar]

While I certainly agree with the principle Jacob Sullum espouses regarding the courts' potential to diminish their capacity to uphold rights when they aim for specific results, I think it's misapplied in this argument. If the people of Iowa, upon learning of this decision, collectively smack their foreheads and exclaim "that's not what we meant by 'similarly situated,'" they can amend the constitution as Californians did. Until then, the law as written offers equal protection to the similarly situated, not the similarly situated unless the similar situation is a romantic relationship. Restrictions on what constitutes a similar situation, should there be any, should need to be made explicit, not inferred. There's nothing "activist" about a presumption of liberty.

The people who ratified the law aren't here to tell us what they meant, and it's wrong of us to guess when we have the option of simply applying the law. As Scalia likes to put it, "It's the law that governs, not the intent of the lawgiver."

[JP]

I outsource my comments on this topic to The Angry Optimist and The Mythical Canadian Libertarian.

[peachy]

I agree - allowing interpretation for original intent allows far too much subjectivity into the process. "Well, it says 'equal protection,' but I'm pretty sure they weren't thinking of [insert class] when they wrote that, so tough shit for them." Indeed, it's that kind of thinking that leads to the gradual reduction of enumerated rights - "well, when they wrote 'arms' that wouldn't have covered 'assault rifles' because they didn't exist yet, so I guess we'd better prohibit those."

And, as you say, if the electorate doesn't like the literalist interpretation in a particular case, the existing law can be superseded by one that actually says what the authors mean it to say.

[kinnath]

Prior to 1998, the status of "gay marriage" in Iowa was basically not defined. The equal protection clause had been in place since the ratification of the state constitution in the 1800's.

But since no party with legal standing had brough a suit against the state for refusing to issue marriage licenses to same-sex couples, the court system had not ruled one way or the other as to whether or not the equal protection clause did or did not require the state to recognize gay marriages.

In the 1990's, social conservatives, seeing the direction that the gay rights movement was taking, came to believe that:

1) a lawsuit would soon be filed

2) THE COURTS WOULD PROBABLY RULE IN FAVOR OF THE GAYS! OH MY GOD!!!!!!!!

So the social conservatives, acting through the republican party, got a law written to head off the this upcomming disaster.

In a classic case of unintended consquences, the new law prompted a lawsuit that allowed the court to clearly and unambiguously decide that the NEW LAW was unconstitutional because it violated the equal protection clause of the state constitution.

In many ways, the new law just sped up the process of getting a court decision that the state consitution which was written in the mid-1800's required the state to recognize that any pair of consenting adults could get married.

[crimethink]

it must be sad to be like mad max, "dickhead2", where they are so weak. such weakness.

I may be a dick, but at least I'm God's dick.

Still haven't figured out why I get a "2", though.

[Libertymike]

BruceM-

Professor Randy Barnett has also opined that there should be a presumption of liberty.

[?]

kinnath
In many ways, the new law just sped up the process of getting a court decision that the state consitution which was written in the mid-1800's required the state to recognize that any pair of consenting adults could get married.

First of all, I don't think you really mean that, but maybe you do. Any pair of consenting adults? A pair consisting of a sister and a brother, a brother and a brother, a father and a son, a father and a daughter, a man and a woman who is currently married to someone else?

Secondly, do you know how ridiculous that sounds? "...the state consitution which was written in the mid-1800's required the state to recognize that any pair of consenting adults could get married." That would be news to anyone in the mid 1800's.

[Libertymike]

I disagree that it would be wrong for the Supreme Court of California to invalidate Proposition 8. Likewise, the Supreme Court of Iowa would be right to invalidate a constitutional amendment limiting marriage to heterosexuals.

The presumption of liberty must always trump democracy whether the two wolves and a sheep deciding what is for lunch is arrived at by legislativve fiat or constitutional convention. Libertarians should be careful not to sacrfice the primacy of individual liberty upon the altar of a constitution wrought by a political sub-division.

[kinnath]

Gay Marriage by Judicial Fiat

I'm going to go out on a limb and assume that most of the people that frequent this comment board are smart enough to know that:

1) legislators write unconsitutional laws all the time

2) these laws stay on the books until the court system formally rules the laws to be unconstitutional

3) the court system does not review the laws until such time as a person with legal standing to file a law suit actually files a law suit

Therefore, the mere presence of a law in the books does not mean that the law is constitutional, it only means the law has not be challenged.

The fact that a law goes unchallenged for a long time (perhaps decades) does not actually increase the odds that the law is constitutional.

And finally, the courts are every bit a susceptible to the whims of the majority as the legislature. So, it is true, that sometimes we have to wait multiple generations for public opinion to evolve so that justices can be put in place that will actually rule that old laws are in fact unconstitutional.

[R C Dean]

Word have meanings. If you don't believe this, then you don't believe in the rule of law, because the law is made of words.

The equal protection argument for gay marriage as a Constitutional right glosses over the question of what the word "marriage" means. If it means a civil union between persons of the opposite sex, then prohibiting gay marriage does not violate equal protection, any more than prohibiting male abortion violates the right to choose an abortion. Proponents of gay marriage as a constitutional right need to make the case that "marriage" means a civil union between persons of any sex, which historically is a very difficult argument to make.

Changing the legal definition of marriage is a legislative prerogative, not a judicial one. If what the courts are doing is enacting a new definition of marriage, then that is legislation from the bench.

And, of course, the argument that constitutions must be infinitely flexible to account for changing social mores and conditions runs aground on the fact that constitutions can be amended. The high bar for amending constitutions is there for a reason; to ensure that changes do, in fact, represent an actual social consensus. That consensus is not here yet on gay marriage.

Because constitutions can be amended only by a specified process, de facto amendments of constitutions by judges are also ultra vires exercises of judicial power.

For those who applaud illegitimate exercises of judicial power that advance their agenda, I remind you of the Fifth Iron Law:

5. Any power used for you today will be used against you tomorrow.

Personally, I have no problem with gay marriage. However, I have a huge problem with subverting separation of powers regardless of the agenda being advanced.

[peachy]

That would be news to anyone in the mid 1800's.

True, but - from the literalist perspective - irrelevant; if the law means what the law says, rather than what its authors intended it to mean, then kinnath is correct. And that seems to be the reasoning behind most of the pro-gay marriage rulings; if the law says 'equal protection' without enumerating exceptions, then 'equal protection' is what it means. "And," the justices continue, "it isn't our fault if you thought you were writing 'equal protection but not for the gays', because you didn't actually write it, and dammit Jim - we're judges not psychics."

[kinnath]

First of all, I don't think you really mean that, but maybe you do. Any pair of consenting adults? A pair consisting of a sister and a brother, a brother and a brother, a father and a son, a father and a daughter, a man and a woman who is currently married to someone else?

Dear "too lazy to type in a meaningful handle", you're either new here or have short memory. I'm on the record in multiple threads stating that "consenting adults" means "consenting adults" and all the "evil" combinations that you list above.

Secondly, do you know how ridiculous that sounds? "...the state consitution which was written in the mid-1800's required the state to recognize that any pair of consenting adults could get married." That would be news to anyone in the mid 1800's.

Albert Einstein was one of the most brilliant physicists ever born. Shortly after publishing his most important works, he became totally irrelevant in the field of physics because he couldn't cope with the consequences of his own brillance -- "God, does not play dice with the universe".

It doesn't bother me in the slightest that the men (women weren't relevant then) that wrote the US and Iowa state consitutions would be aghast at the modern interpretations of their works.

[Libertymike]

MadMax-

Catholics who look to the state for moral guidance are not good Catholics. Catholics who urge the state to provide shelters and safety nets are not good Catholics. Catholics who beseech the state to exclude homosexuals from marriage are not good Catholics.

As I have had to remind you in the past, Matthew, Mark, Luke and John are bereft of any references to homosexuality, never mind homosexual marriage. If Christ had thought that the state should regulate marriage, he would have said so. If he thought that the state should exclude gays from marriage, he would have said so.

By contrast, there are numerous stories in the gospels where we find Christ quite critical of Caesar and those who would toil for him and those that would curry favor with him.

Good Catholics need to repudiate the state and all of its actors. Then, just maybe, they would be worthy of eternal life.

[?]

BruceM
Questions like whether self-aware, sentient robots should have basic civil rights are things they could not have "imagined" at the time but that doesn't mean the costitution doesn't protect such rights.

What are we talking about? Human-created robots or a race of alien robots? I think the constitution protects property rights of those things created by human hands. Human-created sentient robots are property.

But to suggest they intended to limit the rights of Americans to only those that they could have imagined at the time of the framing is quite ignorant and it doesn't give the framers their fair shake - these were very intelligent people.

Can it be doubted that if they got a message from the future that their work would one day be used to impose gay-marriage they would not set immediately to fix the language?

[The Angry Optimist]

I disagree that it would be wrong for the Supreme Court of California to invalidate Proposition 8. Likewise, the Supreme Court of Iowa would be right to invalidate a constitutional amendment limiting marriage to heterosexuals.

Uh no. This is totally incoherent. If it the discrimination is contained in the state constitution, then the discrimination cannot be, via not only basic rules of logic but a Whole Act/Statute/Constitution Rule of Interpretation, violative of the State Constitution.

The presumption of liberty must always trump democracy

A presumption of liberty is just that: a presumption...that is, we presume liberty until you present proof otherwise. Amendening your constitution to enshrine discrimination, though reprehensible, a waste of time and a very bad idea, rebuts that presumption.

This isn't your personal Libertarian Dictatorship, LM.

I agree with RC: you guys want kritarchy, be careful what you wish for, as the saying and song goes.

Good Catholics need to repudiate the state and all of its actors. Then, just maybe, they would be worthy of eternal life.

Ha! But-for a state action (the crucifixion), planned by God, the Easter "Miracle" never could have occurred. Christianity is founded on a state action on Friday and a "heavenly" action on Sunday.

[Tony]

The theocrats don't care about democracy or government functioning as it's supposed to if it goes against their particular agenda. Courts have long had the charge to interpret constitutions. If a law violates a particular constitution, they have the responsibility to strike that law down.

That's not to say that the judicial branch is completely immune to politics. But accusing them of acting tyrannically every time they issue a ruling you don't like isn't very helpful.

[The Angry Optimist]

Can it be doubted that if they got a message from the future that their work would one day be used to impose gay-marriage they would not set immediately to fix the language?

People...the Founding Fathers didn't write the 14th Amendment.

And, can it be doubted that, if they found out we weren't punishing rapists with death anymore (because of *our* view of the Eighth Amendment), they would fix it? And should we care?

[P Brooks]

Gay marriage: I just don't give a shit.

But that is an awesome illustration.

[brotherben]

It is a good picture but without a man around, who does the forking?

[?]

The Angry Optimist
People...the Founding Fathers didn't write the 14th Amendment.

So write a right to gay marriage amendment.

[Ray Butler]

People! Jurisprudence is the law. Look it up before you complain again about activist judges.

For the Originalists: You don't want to live there. Remember that they did NOT have assault weapons, radio, television, or rock n' roll.

[Libertymike]

TAO-

Personal libertarian dictatorship? That's a good one! My first edict would have to be to remove myself as dictator. Question is, what would I do if "the people" demand that I not step down? Would I be able to resist the temptations of power? If presented with a substantial bribe, would I take it in return for banishing you and MNG to one of his hypothetical islands?

Okay, gotta give you some props on your observation that "Christianity is founded on a state action on Friday and a 'heavenly' action on Sunday." Never thought of that TAO. Good line.

[Libertymike]

Ray Butler-

They did not have assault weapons bans, either.

[Mad Max]

'Mad Max, if you want to strengthen the institute of marriage, try giving it positive support instead of fighting agianst other people's fundamental contract rights.'

If marriage were a contract, then you might think that a person who got married at a time when divorce was only granted for fault would be able to object when their spouse sought a "no-fault" divorce. But that isn't the case. The courts have held that it's perfectly constitutional to allow "no fault" divorces in spite of the defendant spouse's legitimate expectations, based on the fact that at the time of the marriage, divorce was granted on fault grounds only.

'Establish a marriage counseling center or host gatherings for your friends to meet prospective spouses. You could even work to remove some of the barriers young adults face when they try to start a family. The high cost of housing and the entry barriers to many professions make it difficult for a young adult to start a family. Relaxing zoning laws and licensing requirements would help in these areas.'

I prefer a both/and approach. Reduce *all* barriers to true marriage, whether in the form of bad zoning policies or otherwise.

[Mad Max]

'Make an argument that stands or admit your bigotry.'

I admit that I'm a bigot by *your* definition.

Of course, I have a problem with your definition.

[R C Dean]

People! Jurisprudence is the law.

Actually, its not. "Jurisprudence" is the philosophy of law.

Words have meanings, you know.

Look it up before you complain again about activist judges.

I suggest you look it up before complaining about the illiteracy of others.

Even if you take the vulgar definition of "jurisprudence" to mean the body of law, what we are talking about here is the legitimacy of certain aspects of that body of law.

Simply saying "Its the law" begs any number of legitimate questions, beginning with "Is it really?" and ending with "But should it be?"

[Mad Max]

'Catholics who look to the state for moral guidance are not good Catholics.'

I do not look to the state for moral guidance. Unless you consider my running for Congress as a Libertarian Party candidate to be truckling to Caesar.

'Good Catholics need to repudiate the state and all of its actors. Then, just maybe, they would be worthy of eternal life.'

Interesting . . . I've been out-fundamentalisted on an H&R comment thread. Is this a sign of the Apocalypse?

[Tony]

"Is it really?"

The courts decide this.

"But should it be?"

Legislatures decide this.

[prolefeed]

If they were hypocritical cowards who would not apply those words literally, or if they lacked the imagination to see how far those words could be stretched, then it's their own damn fault for being hypocrites or fools.

Yes, I can see how the FF were hypocrites or fools for not seeing how far their words about the Bill of Rights would be stretched to mean it's OK to ban guns, or severely limit free speech, or apply the Commerce Clause to virtually any transaction. What a bunch of morons!

You, apparently, take the Alice in Wonderland view that words mean whatever you choose to make them mean. This is not generally conducive to enhancing freedom via a strictly followed constitution limiting the government's power.

[J sub D]

Jacob Sullum argues that you should, because the approach taken in Iowa, although liberty-enhancing in that case, ultimately undermines a constitution's ability to constrain government action and protect individual freedom.

Did not and will not RTFA. I agree with Jacob. Since government recognition and seperate rules for married folks ain't gonna go away, I'm all for gay marriage. Still judicial overreach has always concerned me whether I agree with the policy imposed or not. Don't bother to ask, that applies to Roe v Wade as well.

[J sub D]

Same ol' arguments in the comments. Who'd a thunk that?

In the spirit of Godwin, we need to coin a new term for those who toss out slavery when it has no bearing on the discussion at hand.

Yeah Ben, I looking at you.

[kinnath]

Did not and will not RTFA. I agree with Jacob. Since government recognition and seperate rules for married folks ain't gonna go away, I'm all for gay marriage. Still judicial overreach has always concerned me whether I agree with the policy imposed or not. Don't bother to ask, that applies to Roe v Wade as well.

Following up on R C Dean's comment as well . . .

The CA Supreme Court found that the marriage laws in the state of CA violated the CA constitution. So far so good.

The CA Supreme Court then declared what the laws should be or should mean. Big judicial overreach.

The IA legislature passed a very simple law -- a marragie can only be between one man and one woman.

The IA supreme court ruled that this new law violated the equal protection clause of the state consitution. Again, so far so good.

Then they applied the straightfoward logic that if one-man/one-women law is not valid, then the law must recognize two-men and two-women marriages as well. This is not an overreach it is a simple application of the ruling that one-man/one-women is not valid.

So the rulings in CA and IA are very different. The IA ruling is not a case of judicial imposition of "new" laws from the bench.

[brotherben]

J sub, "Forrested"?

[Joker]

Congrats to gay couples. Now you too can be married and miserable, just like us breeders.

[Posthensile]

"The establishment of gay marriage can be compared to going around the battlefield and shooting the wounded."

On behalf of my gay sister, FUCK YOU, ignorant bitch.

[R C Dean]

"Is it really?"

The courts decide this.

Actually, they don't, for most laws, which are never reviewed as to constitutionality by the Courts.

And, naturally, there is the constitution, the existence of which is not determined by the courts.

"But should it be?"

Legislatures decide this.

Except when they don't, of course, such as when courts take up the issue of constitutionality, or laws are created by regulatory agencies.

[lunchstealer]

Dunno, this sounds an awful lot like the old conservative "don't rock the boat" thinking that led to opposition to things like Brown v Board of Education. I mean, separate-but-equal was considered constitutional for a long time, but it seriously wasn't. I am not particularly unhappy that a court decided not to wait for a legislature to decide that.

It's not as if it's a stretch to apply the 14th in this case. From a legal (not practical) standpoint, my wife could divorce me and marry Donald Trump for his money. I can't divorce her and marry Donald Trump for his money. The only reason is that I'm male and she's female.

[kinnath]

R C, refresh my memory for me.

The CA decision was that Civil Unions were seperate and unequal -- that was the equal protection violation, right?

So the court should have sent the matter back to the legislature to fix either civil unions or marraiges, right?

[Mad Max]

'On behalf of my gay sister, FUCK YOU, ignorant bitch.'

The forces of love and tolerance strike again!

[R C Dean]

Agree with kinnath, with one caveat here:

The IA supreme court ruled that this new law violated the equal protection clause of the state consitution. Again, so far so good.

Only if you reject the argument that "marriage" means one-man/one-woman. If that is what marriage means, then there is no discrimination in not allowing gay marriage, just as there is no discrimination in applying laws on motor vehicles to automobiles but not to horses, even though both are modes of transportation.

The civil rights cases, by contrast, dealt with an artificial limitation on marriage, barring marriages between different races. Marriage was never understood mean one-man, one-woman, one-race, so the miscegenation laws constituted the imposition by the state of a discriminatory restriction on marriage.

[R C Dean]

The CA decision was that Civil Unions were seperate and unequal -- that was the equal protection violation, right?

So the court should have sent the matter back to the legislature to fix either civil unions or marraiges, right?

That is my recollection. I thought the CA court rewriting the statute was the clearest case of judicial legislation that you could possibly ask for.

[kinnath]

Only if you reject the argument that "marriage" means one-man/one-woman.

The ruling was about "similarly-situated", not "marriage" per se.

just as there is no discrimination in applying laws on motor vehicles to automobiles but not to horses, even though both are modes of transportation.

A motorized vehicle weighing in execess of 2 or 3 thousand pounds capable of carrying upwards of 5 or 6 passengers in speed in excess of 100 mph. Versus a fine stallion capable of carrying a jockey at what 20 mph?

It's back to simularly situated.

[Posthensile]

"Can it be doubted that if they got a message from the future that their work would one day be used to impose gay-marriage they would not set immediately to fix the language?"

People have been aware of the existance of gays for thousands of years. So I gotta say the answer to your question is no.

[stuartl]

I'm all for gay marriage -- well, actually I don't think it is any of the state's business -- but having the courts decide this is very bad strategically.

The court's decision on abortion was ahead of the country; it would have been made legal eventually in most states. The consequence of the Roe v Wade court decision was the rise of the religious right.

Legislatures will gradually legalize gay marriage in most states, don't fuel the bigots. Do we really want every red presidential candidate for the foreseeable future to be all about religious morals?

[Posthensile]

"In the spirit of Godwin, we need to coin a new term for those who toss out slavery when it has no bearing on the discussion at hand."

How about Sambo's Law?

[Posthensile]

"The forces of love and tolerance strike again!"

Coming from a bigot, I shall take that as a compliment. Thanks!

[Divorce Lawyer]

*smiling, rubbing hands together*

Gay divorce...

[kinnath]

I'm all for gay marriage -- well, actually I don't think it is any of the state's business -- but having the courts decide this is very bad strategically.

Can't speak for the other states, but the IA legislature passed a blatantly unconstitutional law 11 years ago. It is totally appropriate for the IA supreme court to strike it down.

Noted that some will argue with my selection of "blantantly" above. But given the unanimous decision by the supreme court and that the decision was written by a republican; we can assume the decision was not particularly difficult for the court.

[Mad Max]

'Coming from a bigot'

Could you provide your definition of bigotry and explain why I fit the definition?

Or perhaps 'bigot' is merely a synonym for 'disagrees with me.'

I suppose that, I described people as 'bitches,' I would be a prime candidate for the title of bigot. Depending on who hands out these titles.

[Mad Max]

I suppose that if I described [etc]

[BobN]

Another way of putting this: The citizens of Iowa in 1857 were so deeply prejudiced against, and misinformed about, homosexuality that they would never, ever have contemplated same-sex marriage*. And we're a lot like them.

There, all fixed.

* In the certainty of their hindsight and ignorance of history, "social conservatives" fail to understand that the idea of same-sex marriage is hardly new. In fact, it has always been with us. It has survived silently in the hearts of gay people and, in those who have derided and ridiculed us, it has lived loudly in their taunts and insults. "What do you want to do, marry each other!?! f**king qu**rs!"

[Dee]

I have a female partner and WE DON'T SUPPORT GAY MARRIAGE! Quite frankly, we don't support ANY government-sponsored religious institution. I don't need the government's permission to love someone, nor should heterosexual couples, hippie communes, polygamists, etc. As long as people are consenting adults enteri
ng into relationships of their own free wills, why does the government need to be involved? While I don't understand polygamists relationships or hippie communes, I have adopted a "live and let live" attitude.

My personal beef are the extra perks that married couples get--the ability to have their Social Security benefits go to a surviving spouse, the protection that prevents one from testifying against a spouse, etc. Most other things can be gained through private contracts. Honestly, Social Security is a big ponzie scheme anyway and should not be forced on anyone. I can leave my 401K to anyone I choose.

I wish gay rights groups would become more pragmatic and try to achieve the end results through more productive means. The implementation of the FairTax would remove the issues with respect to taxes and marital status.

And for those who think that gay marriage somehow threatens your marriages...give me a break. With a 50%+ failure rate, marriage has bigger problems than gay folks wanting in on the fun.

And for the gay people who are gung ho on the term "marriage"...get used to the term divorce too. I have yet to meet a divorced person who was happy with the government's help in dissolving the union--especially those with kids.

[thoreau]

So, I've lived in California for a while now, and my wife and I have yet to figure out how gay marriage would hurt us, or how the passage of prop 8 helped us. Our marriage has been completely unaffected by efforts to legalize or ban gay marriage. So I'm forced to conclude that maybe, just maybe, what gay couples do has no real impact on us, and we should just leave them the hell alone to live as they see fit.

[Posthensile]

"Could you provide your definition of bigotry and explain why I fit the definition?"

Main Entry: big?ot
Pronunciation: big-t
Function: noun
: a person who won't listen to anyone whose ideas or beliefs are different from his or her own; especially : one who regards or treats the members of a group (as a racial group) with hatred and intolerance
- big?ot?ed /-t-d/ adjective

"Establishing 'gay marriage' is another example of using illegitimate means to reach an illegitimate end."

"The establishment of gay marriage can be compared to going around the battlefield and shooting the wounded. Marriage has already suffered numerous defeats in this country, and the same-sex farce is simply adding insult to injury."

Textbook bigotry. And vile as well.

[Ross]

"why does the government need to be involved?"

Taxes.

[Fluffy]

If it means a civil union between persons of the opposite sex, then prohibiting gay marriage does not violate equal protection, any more than prohibiting male abortion violates the right to choose an abortion. Proponents of gay marriage as a constitutional right need to make the case that "marriage" means a civil union between persons of any sex, which historically is a very difficult argument to make.

RC Dean -

This would mean that the state, if it chose, could define marriage to mean that only persons of the same race could marry, or could declare that Jews can't marry, or what have you.

And by the way - there is no "historically". In legislative terms marriage means whatever the statute defines it to mean, and only that and nothing else. And a legislature bound by equal protection has no power to define it to mean anything that fails to supply equal protection.

The civil rights cases, by contrast, dealt with an artificial limitation on marriage, barring marriages between different races. Marriage was never understood mean one-man, one-woman, one-race, so the miscegenation laws constituted the imposition by the state of a discriminatory restriction on marriage.

That's simply not true. The history of the Christian form of marriage goes back to antiquity, and I can find all sorts of bizarre restrictions on marriage in the record if you want. Suffice it to say right off the bat that non-religious marriage would have been seen as an absurd concept for millennia. Does that mean that, since the word "marriage" is hopelessly entangled with its history in your view, that the state should never have had the power to recognize non-religious marriages? Or that the equal protection clause would not apply if a state passed a law saying atheists could not marry?

As much as I like the result, the equal protection clause does not mean, or at least was not meant to mean, what you think it means.

It can only possibly mean three things:

That laws cannot be crafted that apply to one citizen and not another;

That laws cannot be crafted that advance benefits to one citizen and not another;

That the executive branch cannot decline to extend the protection of the laws to any citizen or class of citizens.

It's pretty straightforward, really, as far as I am concerned.

I'm unimpressed by the claim that taken literally, such an interpretation of the equal protection clause would crash a good fraction of our existing laws and practices. That's a feature to me and not a bug.

Yes, I can see how the FF were hypocrites or fools for not seeing how far their words about the Bill of Rights would be stretched to mean it's OK to ban guns, or severely limit free speech, or apply the Commerce Clause to virtually any transaction. What a bunch of morons!

Bzzt! Wrong. I am the one arguing that the meaning of the text of the Constitution is that supplied by a plain reading of the text, and that no other consideration is needed. It is the failure to apply this standard that has led to an erosion of the enumerated rights.

[Mad Max]

Posthensile,

Interesting that you didn't explain why any of my remarks were bigoted; you simply quoted a couple of these remarks and declared, in conclusory fashion, that the remarks were bigoted "[A]nd vile as well."

Interestingly enough, you seem to fit your own definition. By referring to people who disagree with you as bitches, you have displayed hatred and intolerance.

You are hoisted on your own petard.

[Posthensile]

"You are hoisted on your own petard."

Yeah, you're right. My sister wanting to marry her partner of several years is at once farcical and an illegitimate end. Got it now. Thanks for the enlightenment.

[Mad Max]

Yes, indeed, posthensile, by describing people with views different from your own as bitches, you are clearly signalling your willingness to listen to them. In referring to people as bitches, you are clearly demonstrating love and tolerance.

[Beowulf]

interesting argument. I guess this logic would also invalidate Brown v Board of Ed and Griswold v Connecticut. The Founding Fathers would have been unlikely to endorse desegregation or access to birth control. I guess it would also invalidate the Supreme Court's role as a counterweight to the caprice of the majority.

[Posthensile]

"by describing people with views different from your own as bitches, you are clearly signalling your willingness to listen to them."

I didn't describe people as bitches, I described you, an openly homophobic, oppressive bigot, who in turn describes my sister and her partner's struggle for equality, to be an illegitimate farce. Big difference.

[KipEsquire]

The opposite of libertarianism is not authoritarianism. The opposite of libertarianism is majoritarianism.

Therefore, between Chapman's repeated crap postings and this gobbledygook, Reason is increasingly becoming a very un-libertarian magazine.

Pity.

[crimethink]

And by the way - there is no "historically". In legislative terms marriage means whatever the statute defines it to mean, and only that and nothing else. And a legislature bound by equal protection has no power to define it to mean anything that fails to supply equal protection.

Then they can't define it to mean any two unmarried non-related people can get married either, since that fails to provide equal protection for polygamists and incesters. And even if you define it to satisfy those interests I'm sure we'll find more bizarre arrangements that are still forbidden.

This is what happens when you try to stretch the clear concept of individual rights to become a sort of "couple's rights".

[crimethink]

This would mean that the state, if it chose, could define marriage to mean that only persons of the same race could marry, or could declare that Jews can't marry, or what have you.

If any of those things had been requirements for marriage in every known human civilization for the past 5000 years, then you might have a point. This isn't a case of legislatures defining marriage in some bizarre unprecedented way.

The history of the Christian form of marriage goes back to antiquity, and I can find all sorts of bizarre restrictions on marriage in the record if you want. Suffice it to say right off the bat that non-religious marriage would have been seen as an absurd concept for millennia.

You're talking about one particular period of one particular civilization (and that's BS anyway -- Christians recognized the non-religious marriages of pagans as being marriages, just not the sort that Christians should enter into). In every known human society since the dawn of recorded history and likely before that, marriage has been between a man and woman, whatever other details (such as exclusivity of marriage) have changed.

[Mad Max]

Posthensile,

I asked you to offer a definition of bigotry, and you presented a definition which you yourself met.

Projection, anyone?

[Kreel Sarloo]

To whoever came up with the use of a the American Gothic image above,

The woman in the original was the pitchfork holder's sister, not his wife.

Just thought I'd point that out for those that might not be aware of that fact.

[Kreel Sarloo]

Or are you trying to say that Rich Santorum was right about that slippery slope to incest?

[Hugo Pottisch]

Jacob. Does that mean that if there were more whites than blacks, and there are, and if those whites wanted to go back to slavery.. that the court should not protect blacks? Just asking...

[BruceM]

I think Thomas Jefferson, James Madison, and Ben Franklin would be quite happy to learn that the Constitution was applied to not deny homosexuals the right to marry that heterosexuals have under the law. If someone from the future sent them a message that it would be applied in this way (I realize they did not write the 14th amendment but still) I don't think they'd change the wording to prevent it. Keep in mind the Framers were not Christian zealots. A lot were not even Christians. The only viable basis for rejecting gay marriage is religious. There are no rational secular reasons for denying homosexuals the same right (with legal benefits) heterosexuals have. A general blurt of "the children! the children!" is not a rational reason, nor does it make any sense.

[Mephistefales]

It's really just about who's entitled to single folks' tax monies. I don't see why the government should subsidize anyone's personal relationships. Here's a solution: Don't provide any governmental benefits for any marriage, gay or straight; it's just more wealth redistribution. I'll gladly give up my ill-gotten marital gains if everyone else does too.

[DavidW]

I think some people here, including the author of this article, are a little confused as to the actual threat behind these court rulings. As far as I'm concerned, the peaceful interactions between individuals (whether you and I disagree with them or not) is NOT something government should have been involved with in the first place. Peaceful interactions are well within our liberties, and government involvement can only result in the weathering of such liberties. Arguments of equality-under-the law seem moot compared to the premise already established; that government CAN effect on the peaceful relationship you have with another human being. When you're dealing with an entity that specializes on the monopoly of the use of force, one thing can lead to a terrible other.

Ladies and gentlemen, no matter how the courts rule in issues of gay marriage this will only lead to government being even MORE involved in our private lives. We have already given consent for Uncle Sam to determine which relationships are "legitimate"; it is up to us to take that back so that we may resolve our differences through peaceful means. And Peace necessarily entails tolerance and compromise, which are things you will not find in Government.

[Epicurus]

"Ladies and gentlemen, no matter how the courts rule in issues of gay marriage this will only lead to government being even MORE involved in our private lives. We have already given consent for Uncle Sam to determine which relationships are "legitimate"; it is up to us to take that back so that we may resolve our differences through peaceful means."

No one wants the government involved in protecting the historical and religion-based definition of marriage than the god-fearing church going folk who still are in the majority. "We" aren't going to take back anything in this regard if the issue is left to majority rule.

[Epicurus]

I meant to say:

No one wants the government involved in protecting the historical and religion-based definition of marriage more than the god-fearing church going folk who still are in the majority.

[Epicurus]

Angry Optimist wrote: "I DO think it would have been wrong for the California Supreme Court to have invalidated Proposition 8, and that's because the people of the State amended the Constitution. If Iowa wants to enshrine gay marriage bans, let that state amend its constitution."

So the majority should be able to restrict the application of equal protection of the laws to groups they don't like by constitutional amendment? Get ready to get on a cattle car for a trip to the labor camp. Arbeit Macht Frei!

Fundamental human rights should not be subject to the whims of the majority.

[John]

This ain't a democracy, dude. If it were extended to popular opinion, interracial couples wouldn't have been granted marriage licenses (oh thank you sir!), yet you agree to extend constitutional rights to all Americans by being a citizen here.

[Epicurus]

No one could even buy a rubber in most states if it were up to legislatures or majority vote. (Google Griswold v. Connecticut if you don't believe me.)

The American majority is by and large ignorant and superstitious.

[nike shox]

is good