Constitutional Law

Is California's Gay Marriage Ban Unconstitutional?

|

Today a federal judge in San Francisco began to hear arguments in a case challenging Proposition 8, California's voter-approved constitutional ban on gay marriage, as a violation of the 14th Amendment's due process and equal protection guarantees. Early on U.S. District Court Chief Judge Vaughn Walker raised a point that will resonate with libertarians:

He stopped lawyer Ted Olson, arguing in favor of same-sex marriage, a couple of sentences into his presentation to ask if the state could simply get out of the marriage business altogether to avoid the question of discrimination.

"Yes, I believe it could," said Olson.

Short of that, I agree with Olson that the government should treat all couples equally, regardless of their sexual orientation, as a matter of basic fairness. But whether that result is required by the 14th Amendment's Equal Protection Clause (the stronger of the two arguments offered by the plaintiffs) is another matter. Surely the people who wrote and ratified the amendment would not have thought so, assuming the question would even have made sense to them. They would not have perceived a homosexual couple and a heterosexual couple as similarly situated, so they would not have seen gay marriage as required by "the equal protection of the laws." By contrast, it is much less of a stretch, given the 14th Amendment's historical background, to say the Equal Protection Clause prohibits states from trying to stop interracial marriage.

Maybe it does not matter what the people who gave us the 14th Amendment thought they were doing. But if we reject the original public understanding as our guide, I'm not sure how we stop constititutional interpretation from becoming a result-oriented process in which everyone twists the text to fit his own policy preferences. That sort of approach, while it might have the effect of contracting government or expanding liberty in particular cases, ultimately undermines whatever protection a constitution offers.

I'd like to believe Cato Institute Chairman Bob Levy when he argues that the libertarian result in this case is also the one that the Constitution demands, and I'm tempted to follow the pretty reliable rule of thumb that one should always disagree with whatever legal position Ed Meese takes. But applying the Equal Protection Clause to gay marriage is not quite the same as, say, applying the First Amendment to the Internet. The latter involves applying an existing principle to a new situation, while the former seems to involve modifying a principle so that it comports with contemporary sensibilities (and not even the majority's sensibilities, since most Americans continue to oppose gay marriage). I suppose you could say the principle is the same, while our understanding of homosexual relationships has changed. But that approach opens the door to fiddling with all sorts of constitutional provisions based on the premise that we are now more enlightened than the Framers were. (Can a new understanding of crime, drugs, or terrorism change the meaning of the Second Amendment, the Fourth Amendment, or the Suspension Clause?) And since in this case it is still a minority whose views are said to define what equal protection requires, it is not at all clear what the standard is for deciding when evolving opinion trumps the original understanding.

The plaintiffs challenging Proposition 8 make their case here. George Mason law professor Nelson Lund, who is advising the proposition's defenders, replies here. The motion for dismissal of the lawsuit is here.

Advertisement

NEXT: Menu Labeling, Meet Digital Gastronomy

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

    1. Well, I learned what a “zen koan” is from your note, so thanks for that!

  1. This is a really interesting post, and I followed it pretty much all up to this point.

    The latter involves applying an existing principle to a new situation, while the former seems to involve modifying a principle so that it comports with contemporary sensibilities…

    I can probably attribute my misunderstanding to the two hours of sleep I managed last night, but I’m reading this sentence as six of one and half a dozen of the other. Can someone please dumb it down for me? Thanks.

    1. Same-sex relationships have been around as long as human beings (including at the time the Constitution was written), but our acceptance or attitude towards them changes over time. Whereas the Internet is an entirely new concept. So, the argument is that those two concepts can’t be treated equally.

      1. “but our acceptance or attitude towards them changes over time.”

        So what if the gays all marry, but then 100 years from now society decides it was a bad idea?

        1. So what if the gays all marry, but then 100 years from now society decides it was a bad idea?

          Society then jails gay couples.

          What we need to keep in mind is that bad laws are not always forbidden by the Constitution, nor are good laws always mandated or permitted by the Constitution.

          I personally oppose the criminalization of marijuana. And yet, the U.S. Supreme Court ruling that marijuana use is protected by the Ninth Amendment and as such states can not criminalize it (drug use was not recognized as a civil right at the time of the ratification of the Ninth Amendment) would do more harm to the rule of law than the criminalization of marijuana.

      2. The writers of the 14th Amendment didn’t know about the existence of DNA, so the true mechanism of human sexuality would be as novel to them as the internet. (“New shit has come to light, man.”) Thus the only salient premise for this little brain fart of a blog post is indefensible; gay marriage = the internet.

  2. I’m glad someone at Reason has realized that the Constitution is not a libertarian document…

    1. It may not be, but the Bill of Rights is not preceded by a preamble limiting its reach to the feds, now does it?

      Further, many in the founding generation recognized that adherence to the notion that the state governments were somehow benign and not to be feared was claptrap and not fit for a free people.

  3. Maybe it does not matter what the people who gave us the 14th Amendment thought they were doing. But if we reject the original public understanding as our guide, I’m not sure how we stop constititutional interpretation from becoming a result-oriented process in which everyone twists the text to fit his own policy preferences.

    I think the way that you square that circle is by saying that the people who ratified the 14th Amendment did so because they wanted to pat themselves on the back about how they were supporting “equality”, and did not necessarily think of every possible situation where the principle could be applied. So in a fit of idealism they approved wording that could be applied to force outcomes they would not personally have supported if polled contemporaneously.

    Sure, in 1865 the people would have just said, “Kill all the fags!” the day after they voted for this shit, but that’s their problem. They weren’t consistent, and they let their love of highflown rhetoric get the better of them. Caveat emptor, motherfuckers. You passed it, now we get to use it.

  4. What is marriage?

    1. I think it’s that thing they see in the desert sometimes.

      Sorta like imaginary water.

      1. Do lots of gay people go to the desert?

        1. In the desert, you can remember your name; for there ain’t no one there to give you no shame.

  5. I like Fluffy’s assessment. It is not possible or a good idea to figure out what biases people had 150 years ago and interpret the laws they passed based on that. If it says that all people should be treated equally under the law, then it really means all people, even if the authors were only thinking about race.

    1. If it says that all people should be treated equally under the law, then it really means all people, even if the authors were only thinking about race.

      And yet, the Fourteenth was insufficient to overturn laws denying suffrage on the basis of sex ( Minor v. Happersett )

      Was Minor decided wrongly?

        1. Yes.

          How was the U.S. Supreme Court’s decision in Minor wrong?

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

    This is not reallly about the meaning of marriage. It is solely about the priveledges and protections afforded to persons who are married. If the state strips away all the priviledges and protections afforded to married people, then the issue goes away. Yet that is extremely unlikely to happen.

    So now is does come back down to the legal definition of “married”. To some people, it is blatantly obvious that two men cannot be married, so the 14th doesn’t apply. To other people, any two persons that join into a common household can be married, so the state must show some rational reason to discriminate between couples based upon the genders of the persons that comprise the couple.

    It will be interesting to see the direction the court goes.

    1. I suppose that the issue hinges on whether there is equal protection of all people or not. IOW, a straight man cannot marry another man in California, neither can a gay man. A gay man can marry a woman, so can a straight man. Is this not equal protection?

      1. No it’s not. And I am really tired of seeing this line of argument.

        The essence of common law marriage has been when two people declare publicly that they are married and then they live as though they are married, then they are married.

        So now in our glorious modern society, two men or two women can publicly declare they are married and live like a married couple. The police won’t come arrest them. Their neighbors won’t drive them from their homes. Society is coming to grips with this.

        So now the equal protection issue is whether or not these new couples are similarly situated in the eyes of the law as compared to traditional man/woman marriages. If they are, then they must be afforded equal protection under the law.

        1. But even that line of reasoning suffers from obvious question-begging: A heterosexual common-law marriage is recognized for the simple reason that it mimics in form the formal marriage in every respect and is completely dependent upon that legal arrangement for its definition. That is not the case with a homosexual relationship. What you’re trying to do here is to create the common-law institution first, then make de jure marriage spring from it, like Hera from Zeus’ head.

          1. Hera did not spring from Zeus’ head; Athena did.

            1. That’s just bigoted anti-incest propaganda. Of course Hera sprung from Zeus’s head, and then they got married. The story was covered up by evil bigots who wanted to punish loving relationships between fathers and daughters.

          2. What states recognize common law marriage? Mine does not.

          3. …and strange women lying in ponds distributing swords is no basis for a system of government.

            1. Oh! Come and see the violence inherent in the system! Help!
              Help! I’m being repressed!

        2. It’s a very important line of argument, as it hinges on the expectation that marriage is between one woman and one man.

          The route you take applies equally well to polygamous relationships. You carefully excise the implicit “of different sexes”; why not another group excise the implicit “two people”?

          (Especially if you rope in the “contemporary sensibilities” addendum Sullum made.)

          1. Don’t worry – it’s in the works. In one of the few states that already recognizes gay marriages, unsurprisingly.

            1. This is a goodness

          2. Polygamy is best understood, and usually practiced, not as a marriage of 3 or more persons together, but as one person’s having more than one marriage at a time. That is, it’s not that A, B, and C are married in a single marriage, but rather that A is married to B and A is married to C. Laws against polygamy are a regulation on marriage, not a redefinition of it.

            1. Wow, that is some fine hair-splitting there – regulation vice redefinition. Gay marriage, which AFAIK has never had legal sanction in human history compared with plural marriage which has a rather long, if inglorious, history.

  7. I agree with Jacob Sullum. There is room for political resolution of this issue without trying to shoehorn it into the Constitution. If we don’t respect original intent, we’re no different, at the core, from the statist Left who want to cram every one of their pet projects into the text of the document. Ultimately that leads to having no Constitution at all, something I think few of us here would relish.

    1. Oh, I don’t know. Considering these days the Constitution is more likely to be used to whack the majority of people who live under it over the head than it is to protect their rights, I’m not sure I see much point in trying to protect it. I think we’ve reached the point of diminishing returns – protecting the Constitution is more likely to lead to the government interfering in civil society than it is to restrain it.

      1. It’s hard to argue with that, but before we jettison the Constitution completely, let’s consider what might take its place. Is it really so different from what we have now, and isn’t that the whole point?

        1. Well, that’s the age old question of whether your situation is bad enough to warrant the risk of overthrowing the established order and gambling the new order will be an improvement. That’s always subject to opinion. My opinion is that we’re getting close to the point where it would be worth taking that risk.

          1. Again, very hard to argue with that. If we had a handful of Jeffersons, Washintons, Madisons and Franklins around, I’d be reaching for my musket. But all I see are Pelosis, Reids and Boehners.

            1. That’s reason enough to reach for your musket. Keep in mind the Pelosis, Reids and Boehners all came to power under the authority of the Constitution. If it can’t protect you from them, then what does it protect you from?

            2. Think of the Pelosis, Reids and Boehners as the contemporary equivalents of the then ruling English govt – not the cheeky upstarts.

              1. You know, comparing them to Pelosi, Reid, and co., that’s rather insulting to the renowned statesment of 18th century Great Britain… Sorry, couldn’t help being a little facetious.

          2. The US Constitution is rarely used to mandate the beating over the head. What some people would call the beating over the head is symbolic only, in twisting the document’s meaning to allow intrusions on liberty. You hardly ever see its being used to require intrusions on liberty. So if you got rid of it, I don’t think it’d be any improvement.

            The situation is quite different with the constitutions of the several states, which are frequently used to mandate intrusions on liberty.

            1. Of course, in the context of that twisting, they use the legitimacy and authority provided by the document.

              Which is perhaps the most frustrating aspect of the living constitutional crowd – they want to tear down the lawful authority and legitimacy of the constitution while simultaneously preying on it.

              1. Exactly. At this point the twistings have become so convoluted and outrageous it’s probably more advantageous just to pull the rug out from under the authority than to continue trying to defend the original intent.

  8. I believe gay marriage is legal under the “Do you seriously think this is your fucking business?” clause, but I am going to have to recheck that.

    1. This is also called the 9th Amendment to the United States Constitution.

      “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

      1. Which rights are included thereunder?

        1. Bill, that is answered in the 10th.

          “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

          1. Would that include the right to define who can be married?

            1. On the part of the individual(s) who want to get married, yes.

            2. They key here is that a right is not a right if it infringes upon the equal rights of other. I do not have a “right to healthcare” because that would imply that someone can violate your rights by taking your property to pay for it. Tho lesbians getting married does not prevent you from getting married to a person of the opposite sex.

        2. Rights don’t come from the state. That’s the point. Presumptive liberty as Prof. Randy Barnett argues.

        3. All of them not mentioned specifically above.

    2. If you’re appealing to the government to grant you a license to engage in an activity, then right there you’ve made it the government’s business.

      1. Notice Olsen’s comment to the judge, that the entire dispute could be resolved by simply recognizing that recognizing marriages of any kind is an inappropriate activity for government to be engaged in.

  9. . . . nor deny to any person within its jurisdiction the equal protection of the laws.

    It doesn’t matter what you intend when you sign a contract. The words you apply you signature govern. So original intent has limits; and the 14th is extremely clear in its language.

    1. See my comment at 5:17.

    2. That’s mot really true. The first premise of contract interpretation is to determine what the parties meant by the words they used.

      Some courts say words that have a plain meaning are interpreted according to common usage no matter what the parties subjectively meant, but other courts are willing to consider the subjective belief of the parties in an effort to figure out what the parties’ meant, and not what a court thought they meant.

      Under the latter premise, then you must think about original intent in trying to figure out in context what exactly the drafters of the Fourteenth Amendment were trying to accomplish.

      In the end, the equal protection argument comes down to defining the class–is the class of affected persons gay people or is it just people. If it is the latter, then marriage laws don’t seem to violate equal protection, since all people have the equal right to marry an opposite sex spouse (however meaningless that right is to a gay person).

      If it is the former, then marriage laws may violate equal protection, since gay people are essentially excluded from the institution by the definition. I say “may” violate, because courts may still permit unequal treatment if the societal interest in unequal treatment appears strong enough.

      I think proponents of traditional marriage probably have the stronger argument on defining the class, whereas if gays win the argument on defining the class, the traditional arguments for unequal treatment seem pretty weak to me.

  10. Today a federal judge in San Francisco began to hear arguments in a case challenging Proposition 8, California’s voter-approved constitutional ban on gay marriage, as a violation of the 14th Amendment’s due process and equal protection guarantees.

    Unless the Judge pulls a rabbit out of his ass, Marriage is not one of the enumerated protected rights which the 14th purports to make applicable to all states. The only thing Porposition 8 does is to define Marriage ( a type of contract ) as one between a man and a woman. That’s it. It does not prohibit people from making all other sorts of contracts, including civil unions.

    Obviously, the solution would be to have the State get out of the business of marrying people, leaving that decision to churches and other private organizations, but until that happens, we will have these controversies.

    1. It sounds high-minded to say that, Viejo, but unless you’re willing to see 45 year-old guys marrying their 10 year-old girlfriends they’ve met on the internet, the state is going to be involved in marriage.

      1. Because somehow that 10-yr old is able to enter into legally binding contracts with other parties.

        Why is marriage the only legal contract which minors are able to enter into? It seems to me that the age of marriage should be set at the age of majority, seeing as it is nothing but a contract.

        1. Where does the 14th Amendment exclude minors?

          Don’t kick open a door unless you’re willing to deal with what’s behind it.

        2. Where does the 14th Amendment exclude minors?

          Don’t kick open a door unless you’re willing to deal with what’s behind it.

          1. But that’s the old, “just because it’s not in there, doesn’t mean it’s not a right.”

            Now the age at which a person is considered a “minor” is very much debatable, but that persons clearly below that threshold can be treated unequally for their own safety has been obvious throughout.

            In other words the 14th excludes minors via the 10th. Children are excluded from any legal obligations forced on them by adults, until such time as they are capable of consenting.

            1. A10 is about separation of powers between the federal government and state governments. Your explanation makes no sense whatsoever.

              1. The point is that it’s a given a five year old can’t consent to virtually any contract and the contract is unenforceable by common law. Maybe it’s more a 9th than a 10th argument, but I can’t imagine that matters much.

                Yes there’s plenty of room to discuss to the degree children can consent to contracts and and what types of contracts those are, but I don’t see how the 14th changes that any.

      2. My 10 year-old girlfriend was not unresponsive.

      3. That’s a completely different story as it involves a minor who is unable to consent to such a contract.

        I just don’t understand why all marriages can’t just be folded into contract law and be done with it. That would clearly bring “gay marriage” under the scope of the 14th but not force the other side to have to “lose.”

        1. I’ll ask you, then: Where does the 14th Amendment exclude minors?

          1. Like I said above. I feel the 10th does the trick. It prevents the government from enforcing the power of contract on children and does so via virtually unanimous consent of the people.

        2. I just don’t understand why all marriages can’t just be folded into contract law and be done with it.

          Because that would totally trash the way divorce law works. How are you going to award “damages” (alimony and child support) according to the “best interests of the child” a.k.a. the mother, or “costs” (legal fees) according to the “ability of the parties to pay” a.k.a. the father, if it was the mother who broke the contract, which it usually is? Tricky.

          California is a “community property” state. That means everything you earn or receive after marriage is by the mere fact of dates half your spouse’s, full stop. Doesn’t matter who actually earned it. Suppose you work and slave 20 years at your profession, becoming the world’s expert, and the day after you marry a cocktail waitress you get a $10 million prize from the World’s Expert Foundation. Ding! She’s instantly $5 million richer. How is that going to survive folding marriage into ordinary contract law?

          Or how about fraud? Let’s say wife cheats and has a child, then leads husband to believe it’s his, so he supports it. Later on he gets suspicious, does a DNA test, finds out the child is not his. He divorces her and wants out of his support obligations because of the fraud. Bzzt, sorry! Not going to happen. He’s on the hook until age 18, and the actual father is not. That’s settled law.

          Family law is, for the most part, a giant engine to put the screws to men for the benefit of the mothers of their children. Up to a point, that’s not unreasonable, biologically-speaking. The next generation has to be raised, after all.

          But personally, I shake my head in disbelief that gay men or women would willingly put their heads through that noose. If I were so lucky as to have the state prohibited from messing around with my cohabiting agreements, save that they must conform to contract law, I would let that sleeping dog lie and skip happily off into the sunset.

          Indeed, how about we trade? Let gay men and women be subject to marriage law, in exchange for letting heterosexuals escape it. I’d vote for that in a flash.

          1. Because that would totally trash the way divorce law works.

            +1

            That’s the reason the government allows this circus to continue: To keep the lawyers well fed.

          2. Because that would totally trash the way divorce law works.

            Thats the best reason to do it yet.

            I have argued many a time that wedding vows should be treated as legally binding oral contracts. Dont put “til death do us part” in your contract unless you mean it.

            I have no problems with no-fault divorce if that is what you agreed to in your marriage contract. However, if you didnt, the state forcing no-fault on the licensees is wrong. Divorces should include fault in the decision making process.

            1. So you’ve never been party to a contract that you wanted out of, or wanted to modify?

              1. I have been, they either expire or have escape clauses.

                As far as modifying, you renegotiate with the other party (or in the case of a church wedding, the other parties).

      4. Re: Jeffersonian,

        Underage girls cannot marry without their parents’ consent. Your point IS moot.

  11. But applying the Equal Protection Clause to gay marriage is not quite the same as, say, applying the First Amendment to the Internet. The latter involves applying an existing principle to a new situation, while the former seems to involve modifying a principle so that it comports with contemporary sensibilities (and not even the majority’s sensibilities, since most Americans continue to oppose gay marriage).

    No it doesn’t. It requires that the principal codified into law in the fourteenth amendment be applied as intended by it’s authors to a situation it’s authors hadn’t contemplated. I don’t find the presumed bigotry of those authors, or the prevailing bigotry of the current populous in any way relevant. That’s why it was written into the constitution in the first place! To protect the disenfranchised.

  12. i don’t see why everyone on here is so closeminded. why do you all keep limiting marriage to two people? why can’t I join in a 5 way marriage of consenting adults and we all have the same benefits as a 2 person marriage?

    1. The slippery slope argument, that’s so original in this debate. Almost as original as the one about how a gay man can marry a woman, therefore he’s equally protected.

      1. When principles are stated so broadly as to encompass situations not contemplated by the person stating them, it’s not a “slippery slope” to point that out. MB is right to note that.

      2. The slippery slope argument, that’s so original in this debate.

        Slippery slope applies because of a thing called “precedent”.

        1. So let polygamists go to court and argue their case if they want to. Why should gay rights advocates and litigants have to answer for them?

    2. Marriage shouldn’t have any benefits that are not granted to individuals.

      1. What makes you think it does? Can you name one?

        1. There are some tax benefits.

          Also, only 100 gallons of beer can be brewed in my household in a year. If I was married (or had a 2nd adult living here, for that matter) it would be 200.

    3. i think its a valid question: whats the principle/reasoning behind marriage being limited to 2 people?

    4. 1 husband is definitely enough for me. couldn’t imagine dealing with several more!!!

      1. Funny, my wife said the same thing…:)

  13. Of course it’s not unconstitutional. Any powers not delegated to the Federal Government in the constitution are left to the states.

    California can do what it wants by the voice of the people. The voice of the people spoke, and the people voted that the definition of marriage remains with its traditional definition.

    That’s not unconstitutional, at all.

    I’m all for getting out of the marriage business altogether. As long as the state benefits of being married are offset by tax reductions!

    I think the polygamy crowd has a LOT more to moan about than the homosexual crowd. It’s unconstitutional to put a federal ban on polygamy. They’ve been harassed and persecuted by the government much worse and for much longer than have the homosexuals. And they have a much better argument. All they want is to be left alone. While you have single men going around impregnating several women at the same time (and isn’t criminal), you have a married man caring and loving for his several wives and their children, but it’s criminalized. They want it decriminalized, not legalized. They don’t care if it’s recognized by some secular State. They just want to be left alone.

    The homosexual crowd want a lot more than to be left alone. They want the traditional definition of marriage changed, and they want the government and cultural benefits that come with traditional marriage. Mostly, it’s a big-government movement, not a pro-liberty movement. And they won’t stop with just the simple definition of marriage. I guarantee you much more is to come in this entire big-government movement.

    1. I guarantee you much more is to come in this entire big-government movement.

      You don’t say…

    2. They just want the same rights and benefits afforded to straight married couples. To many, that excludes a “separate but equal” treatment such as civil unions. By “traditional marriage” you of course mean heterosexual marriage, and of course gay rights advocates want to change the definition to include them; that’s the whole point. To me, the harm of being discriminated against in this way is much worse than the harm of having to buy a new dictionary.

    3. So you are an expert on what gay people want? They want the most conservative things possible. Marriage, children, the right to serve in the military, the right to inherit property without paying taxes. They want equal rights, not special rights.

      You are, to put it simply, a bigot.

      1. So it is a violation of my rights if I want to marry my first cousin, as I am prohibited by state law from doing? Where are our equal rights?

        1. They’re at the end of an arduous legal and political battle. Why should gays have to defend the civil rights of incestuous cousins in order to have a valid complaint?

          1. I just want to understand the contour of this supposed right, and why it is okay for the state to say no in one case, but not another.

            That’s the problem with having to get the state’s permission in the first place.

            1. You’re getting the state’s permission… to receive benefits granted from the state.

              Marriage is exclusionary in a lot of ways. The question is whether it should exclude people on the basis of their sexual orientation alone.

  14. Could it not be that the “original intent” of the authors of the constitution and its amendments was that the language, nonspecific as it tends to be, can be applied to future, unforeseen situations? If they wanted us to consult what was going on inside their heads they would have just written that down. A monogamous homosexual relationship is in fact a relatively new societal concept, and can compare to a new technology. That’s the entire reason we’re debating the issue now, rather than 100 years ago.

    1. If that’s the case, then it’s an issue for the legislature, not the courts.

    2. A monogamous homosexual relationship is in fact a relatively new societal concept, and can compare to a new technology.

      Bullshit.

      1. Yes, agreed. Further, the existence of “a monagamous homosexual relationship” does not hinge upon whether it is a “societal concept.”

        1. No shit. Our laws kinda do.

      2. Not that I entirely disagree, but if it’s bullshit, you must have numbers. Share them.

        1. That strikes me as the kind of fact that could only be known via anecdotal evidence, which would be sufficient in this case. Do you claim that there were no monogamous homosexual relationships before, say, 1950? 1900? 1800? 1500?

          1. Strike my comment. It doesn’t matter if there weren’t any before 4:00 Tuesday morning. It’s still discriminatory to fight against it.

    3. We use the Constitution, the Declaration of Independence as the guidance set down by the founding fathers. They could not predict the future. They gave us a way to change the Constitution. By amendment. If you think it is “unfair” to go beyond the original intent, then let’s go back to slavery, only property owners can vote and women have no rights. We don’t do that. We read deeper into the words as we grow and evolve as a society. There was no scientific, biological or psychological research prior to the 20th century in the area of homosexuality (or much of anything else). Where, anywhere, does it say in the Constitution or any amendment that gay people CANNOT get married? Just because someone didn’t think of it when they wrote a law on equality does not mean that it is excluded.

      1. Slavery was eliminated by an amendment, not by the legislature or a court changing the definition of property.

  15. “Surely the people who wrote and ratified the amendment would not have thought so, assuming the question would even have made sense to them. They would not have perceived a homosexual couple and a heterosexual couple as similarly situated, so they would not have seen gay marriage as required by “the equal protection of the laws.””

    Well, they seemed to not think that it applied to protecting white people either. This is why, just a few years after the passing of the 14th, the Supreme court could say without controversy “We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him” (The Slaughterhouse Cases, 1873*).

    * I know enough about libertarians to know they are no big fans of this opinion. I would note however that the SCOTUS in 1873 was a wee bit closer to the ratification of the 14th Amendment than Jacob Sullum for example).

    1. “This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy” (Strauder v. W. Virginia, 1880)

      I imagine the ratifiers of the 14th never expected that equal protection of the law would apply to gay persons. But it also seemed pretty clear to the SCOTUS in living memory of the ratification of the 14th that it was not to apply to protect whites either…

      I think it should apply to whites and blacks and gays since the text itself, apart from whatever or however the ratifiers “expected” it to apply to, recquires equal protection w/out mention of race or sexual orientation.

    2. In fact MNG, that SCotUS opinion is a perfect example of the court ignoring intent and substituting it’s own “superior” reasoning.

  16. “By contrast, it is much less of a stretch, given the 14th Amendment’s historical background, to say the Equal Protection Clause prohibits states from trying to stop interracial marriage.”

    Iirc the topic of interracial marriage was explicitly discussed by the Congress which put forward the 14th for ratification and noone seemed to think it would apply to such laws…

  17. Iirc the topic of interracial marriage was explicitly discussed by the Congress which put forward the 14th for ratification and noone seemed to think it would apply to such laws…

    Proof?

    1. If I take the time to look this up I want something in return. How about this, if I provide proof you agree to post as “I, Michael Erjercito, Idiot” for the next month?

      1. As a humanitarian I’ll give you this lil’ tip: you really should read all of Loving v. Va before you take me up on this…

        1. Loving invalidated one state law for not accepting, with full faith and credit, the law of another state. Anything else is fluff.

          1. Have you read Loving? It squarely rests its decision on Equal Protection and Due Process.

          2. Have you read Loving? It squarely rests its decision on Equal Protection and Due Process.

      2. MNG-

        If you think that the 14th was intended solely to protect blacks, you are wrong.

        First, the plain language of the amendment says otherwise.

        Second, have you read and reviewed the Senate debates on the reconstruction amendments as well as the legislation adopted in furtherance thereof? Lots of stuff about reinforcing and reinvigorating the following rights of folks: (1) to sue judges who get out of line; (2) to sue state actors who get out of line; and (3) the primacy of individual rights over the projection of state power.

  18. Two comments:

    1. Jacob implies that the “similarly situated” argument would have been less of a stretch for the framers or for folks in the 19th century to see with respect to interracial couples. Not really. If you really think that blacks are inferior or not even fully human, as many did, then a white woman who wanted to marry a black man was doing something that didn’t even make sense – you can’t marry someone who isn’t even really human. That is part of the reason why formal marriage was denied to most slaves. I think the interracial argument is a lot closer to the same-sex argument than Jacob implies.

    2. All this talk about what anyone before pretty much the 20th century would have said about homosexuality is pure anachronism. The word itself doesn’t even exist until around 1880 and the idea of gay or lesbian as an “identity” is totally 20th century.

    In that sense homosexuality IS an entirely new situation in a way not all that different than the Internet is from other forms of communication. The notion of homosexuals as a “class” is just as meaningfully “new” as the Internet is as a communications medium. If we can apply the First to the Net, we can apply the 14th to same-sex couples.

    Of course, I’d rather use the 9th, and if only someone had listened to Justice Goldberg in the early 60s, all of these reproductive rights and marriage cases would have been decided on the 9th and we might not even be having this conversation.

    1. 1. Jacob implies that the “similarly situated” argument would have been less of a stretch for the framers or for folks in the 19th century to see with respect to interracial couples. Not really. If you really think that blacks are inferior or not even fully human, as many did, then a white woman who wanted to marry a black man was doing something that didn’t even make sense – you can’t marry someone who isn’t even really human. That is part of the reason why formal marriage was denied to most slaves. I think the interracial argument is a lot closer to the same-sex argument than Jacob implies.

      Before the 14th Amendment, this was absolutely true.

      2. All this talk about what anyone before pretty much the 20th century would have said about homosexuality is pure anachronism. The word itself doesn’t even exist until around 1880 and the idea of gay or lesbian as an “identity” is totally 20th century.

      Then the 14th Amendment does not protect homosexuals as a class. At best, laws that target homosexuals are subject to rational basis (meaning that a “separate but equal” arrangement would surely be upheld).

      Of course, I’d rather use the 9th, and if only someone had listened to Justice Goldberg in the early 60s, all of these reproductive rights and marriage cases would have been decided on the 9th and we might not even be having this conversation.

      When the Ninth was ratified, the very idea that people had the right to marry someone of the same sex did not even exist.

      1. Rights exist outside of government, so it doesnt matter if anyone had the idea or not.

        Then again, that proves that government-licensed marriage isnt a right. There is no right to a marriage license. Straight or gay.

        Another reason to get the state out of the marriage business. Yes, they would have to spend an entire session of the legislature rewriting all the laws related to married couples, but BIG FUCKING DEAL. Its better than what they normally are doing.

        1. Of course there is a right to a marriage license. Look up the laws for your state. If you meet the requirement, you get a license. And the Federal Government is deeply involved in marriage. There are 1138 rights guaranteed to married couples under Federal Law. Even in states where gay marrige is legal, couples cannot cover each other on their social security, Medicare, inherit property without paying taxes. That’s a few. Government is heavily involved in marriage. What rights exist outside of government? Rights are a legal term. What rights? Seriously. Name one.

          1. Of course there is a right to a marriage license.

            If you need a license, it ain’t a right.

            And that hackneyed 1138 is not “rights” associated with marriage, it is the number of times marriage is mentioned in the USC – you would know this if you actually read the GAO report and not the second hand accounts of third rate activists.

          2. Of course there is a right to a marriage license. Look up the laws for your state.

            There are 1138 rights guaranteed to married couples under Federal Law.

            You havent even read the fucking Declaration of Independence, have you? For a geekgirl, you arent very smart.

            Heres a hint:

            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights

            1. So God gives us the rights of a liberal society? Took him a long time to get around to it.

              1. And he must hate North Koreans.

                1. That goes without saying.

                2. Goddamn, didn’t they cover this in elementary school history class?

                  Keep reading past the quote listed above, dumbass, and you’ll see:

                  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ? That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

                  If the North Koreans think that giving absolute power to a family of despotic nutcases is the most likely route to securing safety and happiness, then that’s their right. If they decide that the Kim family is becoming destructive to the pursuit of those rights, then it is their right and obligation to overthrow them.

                  Not ours.

  19. Great article.

  20. Great article. Seems like when you go down the slippery slope of past the framers intent you can get in to all kinds of trouble.

  21. If your game is original intent – ie, what the framers of the amendment would have voted for if the question came up – then we should have stopped a long time ago. I would be interested to see how many expansions of civil liberties opponents of this suit would be willing to roll back for the sake of original intent… somehow I think they’d reach their limits well before we got to the comfort zone of the framers of the 14th.

    Personally I’m with Fluffy et al – all I care about is what the law says. If they didn’t want it to apply to gays – or women or blacks or whoever else – then they bloody well shouldn’t have written it that way. (BTW, I would think libertarians would be careful of cozying up to original intent, which has been such an issue with the 2nd… “oh, no, they only meant carrying guns for militia service.” Whereas we’ve been arguing for decades, “but that’s not what they said.”)

    1. Actually most arguments I’ve heard about the 2nd are based on intent as well. you read all the other stuff around the amendment to make sure you are clear what they intended. Which was an individual right.

  22. I would like an explanation for this.

    In Minor v. Happersett , the United States Supreme Court rejected a Fourteenth Amendment challenge against a law that prohibited women from voting, while men were permitted to vote. It took the Nineteenth Amendment to prohibit denial of suffrage on the basis of sex.

    Why is the Fourteenth Amendment insufficient to overturn laws denying suffrage on the basis of sex, but sufficient to overturn laws to deny marriage on the basis of sex?

    1. I will answer your question Michael. Someone made the wrong decision on applying the 14th amendment to womens right to vote. Period.

      1. I will answer your question Michael. Someone made the wrong decision on applying the 14th amendment to womens right to vote. Period.

        Prove that Minor v. Happersett was decided wrongly.

        1. “Prove” it? All that’s necessary is to read the text of the 14th Amendment.

          Women were clearly citizens.

          The vote was clearly a privilege of citizens.

          The SCOTUS failed to grant women the vote for the same reason that Jefferson kept fucking his slaves: because people are scum who routinely fail to live up to written statements of idealism.

          The SCOTUS also found an obscenity exception to the 1st Amendment that occurs nowhere in the text. How do I prove their wrong? By employing a simple “Go fuck yourselves, Court scumbags” argument.

    2. because women were chattel property and property doesn’t get a vote.

      1. but the owners of said property were entitled to 3/5s of a vote for each unit of property, no?

  23. Civil unions for all.

    But that would upset whackjobs like Andrew Sullivan who want MARRIAGE because they want to use the law as a tool to beat people into acceptance.

    People like that are sick and twisted fucks.

    1. Hello JB. Do you know anyone who is gay? Perhaps you should. Beat people into acceptance? Try opening people’s hearts and educating them. Being gay is not a choice, it is not wrong. It’s people like you that cause gay people to live in fear.
      I would say that you are sick and a twisted fuck. How did that feel?

      1. wtf are you talking about?

        Andrew Sullivan has specifically stated that civil unions for all is not enough because he wants to use the law as way to force cultural acceptance.

        I don’t care if Baptists want to get married in their church, gay Baptists want to get married in their church, or who wants to get married in any church or VFW hall. Get the church out of the marriage business.

        People like Sullivan who want to use the law as a tool to push a certain cultural agenda (whatever that agenda is) are the sick fucks. I would add illiterate folks like who can’t read to that mix as well.

        1. Who cares what Andrew Sullivan says? Besides, people arguing against legal recognition of gay marriage are also using the law to push a social agenda. I assume those who passed the anti-gay-marriage law in my state are also sick fucks, according to you.

          1. If they were pushing an anti-civil union law I would agree.

            I’ve talked to many people on both sides of this issue and many of the zealots would even be happy with civil unions for all. It’s only the most extreme on both sides that take issue with that.

  24. If we’re to take the EPC literally, then the residents of the northeastern part of San Bernardino county have a SCOTUS case against the State of California, which violated their equal protection rights by forcing them to travel 100 miles to the county seat to perform jury duty, while residents of the city of San Bernardino have to travel but a few blocks.

    1. Also, handicapped parking spaces on public streets and in publicly owned parking garages violate my right to equal protection of the laws.

      1. Not to mention that people with handicapped placards drive like retards, which violates some right of mine. The right to not get frickin pissed off or something.

      2. I once came to the defense of a college student who was getting his ass kicked by an outraged, self appointed handicap crusader because the college kid had the audacity to park in a hanicapped space near one of the classroom buildings.

        Naturally, I became somewhat outraged myself what with this goon thinking that he had the right to use force to convey his point. Sure, I got a little phsycial with him-I had the right to do so as he was attacking the student without provocation and because he was acting upon his petty totalitarian impulses.

        1. Tulpa, I would do the same to protect you.

          1. That’s heartwarming, but barring danger to life or limb, I would never park in a handicapped spot. That’s just the depths of petty depravity. I would have taken a picture of the guy’s vehicle and handed it over to the police.

      3. Now you’re talking in my good ear!

    2. That could be the dumbest argument against equality for gays that I have ever read. And I’ve read a lot. Wow. Equality for jury duty does not depend on where you live. You chose to live there. Move closer.

      1. Please justify that opinion with respect to the text of the Equal Protection Clause that the gay marriage proponents are claiming must be interpreted absolutely literally, with no regard for certain classes being protected and others not. I don’t see any exception for citizens who choose to live in the wrong place.

        1. Actually, the 13th Amendment pretty effectively bans compulsory jury duty, as far as I am concerned, so that renders your 14th Amendment argument moot.

      2. And seriously, “You chose to live there, move if you don’t like it” is a valid response to a rights violation? By that logic, California can just tell gays who want to get married that they should move to Massachusetts.

          1. -1

            Tulpa’s assuming the issue at hand that he made up, that you have the right to be equidistant to county seats with everyone else, based on equal protection, which is stupid.

            1. I agree that it’s stupid. But it clearly follows from the literal interpretation of the EPC that you guys are pushing. Reductio ad absurdum (Latin: you lose).

              1. So you think both that the right to equidistance is absurd and that asking someone to move is a violation of their rights. I think people’s ability to be mobile is exactly why this is not rationally considered a civil right. You can’t alter your sexuality like you can your location.

                1. You don’t have to alter your sexuality; just alter your location to a jurisdiction that permits same sex marriage.

                  1. I could do that, I can also sue, just like your ‘hypothetical’ person can with respect to jury duty. (I swear when a libertarian gets screwed in the drive-through he all of a sudden discovers an inalienable right to extra pickles.)

                  2. “just alter your location to a jurisdiction that permits same sex marriage.”

                    Except the 14th covers all the states…

                  3. “just alter your location to a jurisdiction that permits same sex marriage.”

                    Except the 14th covers all the states…

                2. And it’s not ipso facto absurd. The government — by the choice of county seat — places a significantly heavier burden on some citizens than others in the course of fulfilling their mandatory attendance at jury duty. The county is gigantic, and the seat is all the way in the southwest corner. They didn’t even bother putting it in the center, which would have at least minimized the heaviest burdens.

                  1. Tulpa does have a point here.

                    Same goes for separate male and females bathrooms in government facilities. The ‘separate but equal’ defense doesn’t work.

                    1. The right to marry is a wee bit more important than the right to unisex bathrooms to most people, JB notwithstanding…

              2. Actually, it doesn’t.

                The only part of the burden of jury duty that is set by the state is the part from the property line of the courthouse to wherever the jury pool waits. The rest of your life schedule is your business.

                The state just wants its burden of service fulfilled. Whatever you do on your own time to put yourself in a position to fulfill that burden is your business. If the state passed a law requiring everyone to pay a $10 tax, you would not have an equal protection claim if you make $10 and hour and I make $20, and you therefore have to work twice as long as me to get the money to pay the tax. The state doesn’t care where the money comes from as long as it gets it, and a nominally equal burden is just that, equal.

      3. So choose a spouse of the opposite sex.

        1. How is this deliberately air-headed argument not just outright bigotry you should be ashamed of?

          You’d never tell people that they should just choose someone of the opposite race (opposite but tantamount to the requirements of antimiscegenation laws), and race differences aren’t the barrier to interpersonal relationships that being the wrong fucking gender is.

          1. Unlike race, gender is tied up in the very nature of marriage. Keep in mind, the anti-miscegenation laws had to be utterly arbitrary, specifying what level of “contamination” one had to have in order to be forbidden from marrying someone of a certain race. For instance, a person who was 1/2 black would not be allowed to marry a white person, but a person who was 1/128 black would be.

            Whereas — except in the rare case of chromosomal abnormalities — the gender of a person is always clear, so restrictions on the basis of gender are not at all arbitrary. Now you could say what would happen if marriage was defined to only be same-sex, but you’d then be talking about a totally different institution from that which currently exists.

            1. This amorphous “institution” doesn’t have civil rights, people do. Something defined by statute is subject to change by the courts or other statutes. Traditions don’t have legal protections.

              Loving (calling marriage a basic civil right of man) didn’t declare antimiscegenation laws illegal because they were arbitrarily applied, but because they violated a due process and equal protection on their face.

            2. “Unlike race, gender is tied up in the very nature of marriage”

              Beg the question much?

  25. It’s pretty stupid how even libertarians don’t want to take the Constitution literally when it offends their conservative buttbuddies. Why are we still bending over for them while they rape all our other rights?

    No.. If people have a problem with the consequences of the 14th Amendment they can *gasp* amend the Constitution again.

    Oh wait, the homobigots tried and failed.

    Why did they bother trying? Because they knew that gay marriage bans were unconstitutional.

    1. “It’s pretty stupid how even libertarians don’t want to take the Constitution literally when it offends their conservative buttbuddies”

      Unfair, most actual libertarians on this post are in favor of allowing something like same sex marriage. Most of the people here against it are not doing so to not offend their conservative buttbuddies, they ARE the conservative buttbuddies, posing as libertarians.

  26. “What remaining justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’?” – Antonin Scalia in his Lawrence v. Texas dissent

  27. The original authors of the Constitution had slaves. I think that says it all about the danger of sticking to original intent.

    1. And we got rid of it via the 13th amendment. Not be law. Not be judicial decree.

  28. Why is this such a contentious issue here? Why can’t you guys just favor the interpretation–incidentally the more rational one–that expands equal rights? It’s not like it’s an obscure one.

    You all sound so pained and disappointed that you have to be against freedom because that darned constitution doesn’t allow it in this case. Which is good because I was about to think your provincial attitude about homosexuality was overriding your love of freedom.

    1. Because: “that there librul gubberment iz be forcin teh homos on us freedum loving folk thats why!!”

    2. Why is this such a contentious issue here? Why can’t you guys just favor the interpretation–incidentally the more rational one–that expands equal rights? It’s not like it’s an obscure one.

      I pointed out that the 14th Amendment was insufficient to prohibit denial of suffrage on the basis of sex ( Minor v. Happersett ) Nothing in the Constitution was sufficient to guarantee a right to redefine marriage ( Reynolds v. the United States ) . And finally, this very issue was decided by summary judgment in Baker v. Nelson .

      These precedents lead somewhere…

      1. Yeah, to a desperate attempt to justify an anti-freedom position. Precedent never gets in the way of you taking pie-in-the-sky positions on other issues for the sake of your ideals of freedom.

      2. Baker v. Nelson is poorly reasoned and is from a state court (Minnesota?) Plus, it is forty years old. It is not going to bind the federal courts in any way.

        1. Baker v. Nelson is poorly reasoned and is from a state court (Minnesota?) Plus, it is forty years old. It is not going to bind the federal courts in any way.

          The U.S. Supreme Court dismissed the appeal of Baker v. Nelson . A dismissla consitutes a decision based on the merits on the precise issues. In Baker , the precise issue was whether or not the First, Ninth, or Fourteenth Amendments protected a right for a man to “marry” another man.

          The age of a precedent is irrelevant, as Roe v. Wade is nearly as old as Baker , and is still cited as precedent.

      3. I have some serious reservations about whether Reynolds is still good law in light of Lawrence v. Texas, at least as far as its upholding a statute making polygamy a crime. Its holding is probably still good with regard to a state’s duty to recognize plural marriage, but that is factually distinguishable from whether a definition of marriage as a two-party arrangement can limit the parties who are permitted its benefits. I don’t think Reynolds is persuasive authority at all.

      4. Minor probably is harder to get around, although I don’t know that its reasoning comports with modern concepts of Fourteenth Amendment jurisprudence. Admittedly, Minor has not been overturned, but is probably more a product of the fact that the passage of the Nineteenth Amendment made it unnecessary to revisit the holding of the case. The Court has clearly expanded the reach of the Fourteenth Amendment to consider dscrimination based on sex; therefore, the cramped view of the Fourteenth Amendment espoused in Minor appears to no longer be valid.

        Further, in light of Griswold, Loving and Lawrence, it seems that the Court has opened a line under the Fourteenth Amendment for associational privacy and/or liberty that did not exist in Fourteenth Amendment jurisprudence at the time of Minor. The Court could fairly easily avoid the reasoning of Minor by using the Griswold line of cases to anchor a holding that gay marriage is compelled by the associational liberty rights conferred by the Fourteenth Amendment’s due process clause.

        1. Further, in light of Griswold…

          And an excellent reason for the court to ditch that line and return to P and I rather than SDP. At least than they would be anchored in something more substantial than emanations and penumbras.

        2. The Court has clearly expanded the reach of the Fourteenth Amendment to consider dscrimination based on sex; therefore, the cramped view of the Fourteenth Amendment espoused in Minor appears to no longer be valid.

          Discrimination on the basis of sex is held to a lower level of scrutiny than discrimination on the basis of race or even religion or national origin. Draft registration laws have not been overturned. Public schools are allowed to provide separate extracurricular programs for males and females, provided the programs are equal.

          And even if same-sex couples were entitled to the same tax, inheritance, power-f-attorney, and other legal benefits as married couples, under the lower level of scrutiny, states may still place same-sex couples under a different legal, if merely nominal, classification.

      5. Probably the best argument I have seen in the Olson/Boies case is the narrowest–that the Yes on 8 campaign was animated by animus toward a persecuted minority group; therefore, no legitimate reason existed other than animus for the yes campaign, running afoul of Romer v. Evans. This might actually work, but it would only invalidate Prop 8 (and perhaps the recently passed ban in Maine), while leaving the broader question open for another day.

        1. Probably the best argument I have seen in the Olson/Boies case is the narrowest–that the Yes on 8 campaign was animated by animus toward a persecuted minority group; therefore, no legitimate reason existed other than animus for the yes campaign, running afoul of Romer v. Evans.

          Under this sort of reasoning, gun control laws would be invalid since they were historically targeted against black people.

          Of course, you fail to mention that the law invalidated by Romer v. Evans was extremely broad, far beyond the very narrow scope of Proposition 8.

      6. Dude, Minor is no longer good law, since at least Reed v. Reed.

      7. Guess what? In the face of the plain text of the Constitution, I don’t care for any SCOTUS precedent whatsoever and don’t really care what they say.

        It doesn’t matter to me how many precedents one can produce justifying various types of restriction on speech. The 1st Amendment says what it motherfucking says, and every last SCOTUS decision to the contrary is an example either of judicial cowardice or judicial tyranny. We shouldn’t be honoring those precedents, we should be taking a bus tour to visit SCOTUS judge graves so we can piss on them.

    3. Nobody’s against freedom because “the Constitution doesn’t allow it”. Actually, the more accurate way to say it is that the Constitution allows restricting the freedom in question. I for one think that any combination and number of consenting adults ought to be able to enter a union with each other. Unfortunately, the Constitution allows states to define marriage (in the 10th). Neither is there an equal protection issue; there is as much equality in access to marriage as there is to bathrooms or locker rooms and this segregation is readily acceptable. One can support the cause yet still recognize that the courts are the wrong way to go about it.

      1. Bathrooms and locker rooms? If anything that’s a separate-but-equal situation, one we tolerate due to modesty. Nobody is being denied access to bathrooms and locker rooms altogether.

        1. Just like no one is being denied access to marriage altogether….

          What if a woman really wants to use a urinal? Who are you to tell her that because she doesn’t have a Y chromosome, by accident of birth, that she can’t stand up and bond with her standing neighbor while micturating?

          1. First of all, are bathrooms separate because of federal laws or otherwise? No. The comparison is ludicrous. Gays’ right to marry only–specifically–the people they have no interest in marrying is just not the same right that straights enjoy.

    4. Actually my opinion is that the Constitution is silent on the issue, so it’s up to state legislative processes. If you want to push gay marriage, push it through the legislative process. Your triumphalist copositionists are always saying that the tide has turned in favor of gay marriage as our populace becomes more tolerant and enlightened. Desperately seeking a victory by judicial fiat would seem to contradict that assessment, methinks.

      1. But thanks, libertarians, for having our backs in our perhaps quixotic legal battle. We can always count on you to be on the side of freedom.

        1. Gay marriage is not a matter of freedom. Especially when civil unions are already available. You guys can pull the wool over the eyes of the CATO cosmotarians, desperate as they are to have an issue they can look respectable on in the left-dominated cocktail party circuit, but you’re not going to fool me.

          1. Civil unions aren’t available where I live. Quite the opposite. Even if they were, they would not include the many federal rights and benefits associated with marriage. It’s certainly an issue of freedom to people who aren’t allowed to get married.

            1. Would you be against civil unions for all (straight, gay, etc.)?

              ‘Marriage’ can be defined by churches or other organizations and groups as they see fit. Marriage existed long before the nation-state did.

              1. I’d be for anything that treats heterosexuals and homosexuals exactly the same in the eyes of the law.

                If heteros are willing to give up civil marriage for their gay fellow citizens, then we can do civil unions for all. I doubt seriously that would happen.

              2. That is a good solution-but then you invalidate a lot of people’s existing marriages (those married by a judge as opposed to a priest).

                That won’t fly.

                The solution is to have two types of things called marriage-civil and religious. But you can’t rename civil marriage to civil unions-that train has left the station long ago.

                1. Geotpf, I disagree. “Every single civil marriage now becomes a civil union.”

                  Done. The state shouldn’t care about ‘marriage’.

                  Tony, I’ve never talked to anyone who would care if the government called their union a ‘civil union’. Maybe there are some out there, but I haven’t met them.

          2. Gay marriage is not a matter of freedom

            Not to a straight person it isn’t.

            Especially when civil unions are already available.

            What about when they aren’t? And civil unions don’t give you the same benefits as marriage as far as the Federal government is concerned. Hell even official marriage sanctioned by say the state of Mass. isn’t afforded the same rights/benefits as other married people in their state when it involves same sex partners.

            but you’re not going to fool me.

            Cuz you’re already a fool..and a bigot.

        2. You are so very welcome Tony. You obviously couldn’t answer the point about going the legislative route, and instead take another futile swing at the massive voting power of libertarians.

          1. There’s no difference to me. Policy is made by legislatures and it’s made by court decisions. A court deciding the issue, just as it has other civil rights issues, doesn’t make the outcome less legitimate.

      2. So…if marijuana is legalized “by judicial fiat” that would be bad?

        1. There is clear constitutional basis for striking down the Controlled Substances Act as it does not fall under any of Congress’ enumerated powers in A1-S8. So federal laws being struck down by judicial fiat would be a good thing.

          However, unless there’s some state constitutional issue involved, I wouldn’t support striking down state drug laws by judicial fiat.

          1. So DOMA is presumably fair game for the courts?

          2. There is clear constitutional basis for striking down the Controlled Substances Act as it does not fall under any of Congress’ enumerated powers in A1-S8. So federal laws being struck down by judicial fiat would be a good thing.

            So which enumerated power gives the feds the right to deny gays the same rights as straights when they are married in MA?

          3. That’s hardly “clear.” Art. I grants Congress the power to “regulate” “interstate commerce.” Controlled stubstances are traded interstate, and regulation implies prohibition.

        2. Yeah, actually it would be. Because the moral busy-bodies will find another way to re-enact it.

  29. The Equal Protection clause is not about equal rights, it’s about getting equal Treatment, regardless of station, creed or race in a court of law. There is no “right” to marry anywhere in the Constitution. Marraige is a contract that is endorsed by the US for the betterment of society, thru advancement of the population. Should we allow 1st cousins to marry? how about if I want 5 wives? A want is not a “right”.

    1. Something is a right when, among other avenues, our system of case law declares it so. If one class of people has a right that others don’t, there has to be an exceedingly persuasive justification for the difference, and there isn’t one in this case. As for polygamists and those who practice incest, let them show that there is no exceedingly persuasive justification for their being denied marriage rights. It’s irrelevant to the issue at hand.

      1. That is NOT what rights are.

        1. What are rights other than legal entitlements?

          1. Rights are innately possessed by people and do NOT flow from the government.

            Government can recognize and seek to protect and preserve those rights, but they exist independent of the government.

            1. Where? In your rights gland?

              Rights exist because governments exist to protect them. The fact that most humans throughout history have never enjoyed civil rights is evidence enough that they aren’t innate.

    2. I don’t think any serious same-sex marriage constitutional analyst argues that there is a “right” to marry, but only that if the state decides to involve itself in marriage, it cannot artificially limit the benefits to heterosexuals while effectively excluding gays from the benefits of the state-sponsored contract. If the state decided to get out of the marriage business, nobody would argue that the state was compelled to award marriage licenses at all.

      1. This is what we should be arguing. Most seem to miss the following points:

        1. State Sanctioned Marriage is not a right.

        2. On the other hand, when the State (taken to mean as a government body) does decide to provide an embodiment to a contract in marriage, it can’t deny it based on what gender either party is. (I would also say that it can’t deny it based on the number of parties, but that’s offtopic)

        1. Not entirely off-topic.

        2. On the other hand, when the State (taken to mean as a government body) does decide to provide an embodiment to a contract in marriage, it can’t deny it based on what gender either party is. (I would also say that it can’t deny it based on the number of parties, but that’s offtopic)

          Sure it can. It can define marriage as a union between a single man and a single woman.

          Which is what CA did, since the previous assumption that everybody already knew that seemed to be unclear.

      2. Why? It can limit marriage in a number of other circumstances: minors, cousins, etc. If the state gets to decide who and why, then no one really has a fundamental right to it, do they?

    3. The very real distinction is that a person who is denied the right to an incestuous marriage or a marriage to a minor but who is nonetheless heterosexual is still able to find a spouse in the eligible class with whom to have a meaningful marriage. Thus, the prohibition does not effectively exclude any person from marriage, only the opportunity to a very narrow class of heterosexual marriage.

      In contrast, a gay person is deprived of any meaningful chance at a marriage based on love and passion as those terms are understood in our society if the only avenue available is the right to marry someone whom a gay person cannot ever fall in love with. Thus, it is very possible to hold that gays must be permitted to marry without opening the door to incestuous or under-age marriage.

      1. “eligible class”

        Really, what constitutional principle is that derived from?

    4. “There is no “right” to marry anywhere in the Constitution. Marraige is a contract”

      Impairing some classes of people’s ability to contract was a paramount evil the equal protection clause was intended to address.

  30. It doesn’t matte to me if gay marriage is a “Right” or a “Privilage”. All people should be treated equally and fairly, which at this point government is incapable of doing!

    I’m not opposed to homosexuals being married and getting all the rights that heterosexuals have. I am against it if it means that every person, or organsization be forced to recognize and allow it into their folds.
    Churches shouldn’t be forced into preforming rituals against their teachings.

    Boy Scouts shouldn’t have to allow gay couples to be leaders.

    Photographers shouldn’t be sued because they refuse to take pictures of a gay wedding.

    Those decsisions should be left up to the organization. Thus my point: government is incapable of treating everyone equal and fair!

    1. Nobody is suggesting that churches be forced to marry gays. The other two examples are already illegal in many states under laws against descrimination against gays.

      Let’s do some substitution:

      Boy Scouts shouldn’t have to allow blacks to be leaders.

      Photographers shouldn’t be sued because they refuse to take pictures of a wedding of two blacks.

      1. Ahh, but then religous freedom comes to naught. So we must discrimate to end discrimination right?

        If insititutions are not allowed to descriminate against things they believe to be immoral just because you think think they are wrong.

        For example, when my wife and I went to get married there were a number of churches that wouldn’t marry us because we were living together. IMO, that’s there right. People should have a right to associate or not with people who’s ACTION’s they approve or disapprove of.

  31. By contrast, it is much less of a stretch, given the 14th Amendment’s historical background, to say the Equal Protection Clause prohibits states from trying to stop interracial marriage.

    I dunno. They seem like the same situation to me. That is, the argument by segregrationists was “blacks can marry, just not whites” sounds similiar to “men can marry, just not other men (and women with women)”. Both cases allow marriage but restrict whom one can marry.

    1. I dunno. They seem like the same situation to me. That is, the argument by segregrationists was “blacks can marry, just not whites” sounds similiar to “men can marry, just not other men (and women with women)”. Both cases allow marriage but restrict whom one can marry.

      It is important to remember that gender discrimination is held to a lower level of scrutiny than racial discrimination.

      The Fourteenth Amendment was insufficient to do away with voting restrictions on the basis of gender ( Minor v. Happersett )

      Men, but not women, are required to register for the draft. Public schools are free to provide separate extracurricular activities for boys and girls, provided that the activities are equal.

      1. Again, this is not a gender issue, it’s about sexual orientation. Both gay men and gay women are prevented from being married. There are many instances of accepted “separate but equal” treatments for the sexes. There’s no legitimate reason gays should be treated in this way (not that we even have “separate but equal” yet in any form in this country on this issue).

        1. Again, this is not a gender issue, it’s about sexual orientation. Both gay men and gay women are prevented from being married. There are many instances of accepted “separate but equal” treatments for the sexes. There’s no legitimate reason gays should be treated in this way (not that we even have “separate but equal” yet in any form in this country on this issue).

          If the issue is sexual orientation, then it is held to almost no scrutiny.

          I have no objection to same-sex couples getting equal rights in a separate institution.

      2. It was insufficient to give women the vote when argued before a court full of scumbags.

        Every last one of your “Why wasn’t it sufficient to…” questions can be answered with that all-purpose statement.

  32. One thing to remember about this entire argument:

    The only reason Tulpa cares one way or the other is because he’s a delusional moron who believes in the supposed utterings of a tribal desert deity.

    If it wasn’t for your Christian beliefs, which are pathetic and not worthy of any serious person’s respect, you wouldn’t care one way or the other.

    So despite all the rhetoric you use about trying to protect the Constitution, what you’re really doing is trying to find a way to wedge your religious inanities into the law. No one, no living human being, cares about denying marriage privileges to homosexuals for any non-religious reason. For that reason alone you fuckers can blow me. And you can ride your pseudoconstitutional arguments right back out the fucking door you rode them in on, because you aren’t fooling anybody.

    1. And it’s actually very relevant that religious objections are the primary reason for resistance to equal marriage rights. That alone makes the discrimination invidious.

    2. umm, all those religious inanties are what are laws are based on. And where the moral compass comes from.

      If not, then where does it come from? If morality is not absolute, does it just come from whatever the majority says?

      Or maybe it’s just whatever you say. But what if I have a different version, what makes your version right?

      Also, isn’t your disbelief just as stupid?

      After all, if you don’t believe and are right, you are in pretty much the same position come death, but if you don’t believe and are wrong, then you are royally fucking screwed.

      Where’s your cost benefit analsysis, lol

  33. Gays have the exact same rights in marriage. Every one can marry a person of the other sex whether you are gay or heteral. No discrimination there. A heteral cannot marry a person of the other sex, nor can a gay marry a person of the same sex. Both are exactly the same. No difference!

    1. Everyone can marry a person of the same race whether you are black or white. No discrimination there.

      Furthermore, everyone has the right to worship Jesus. No discrimination there.

      See it’s all about how you frame it. You could choose to frame it in the pedantic, idiotic way you have, or in a rational way. Such as, does everyone have the right to marry someone they would possibly want to marry?

  34. ‘I think the way that you square that circle is by saying that the people who ratified the 14th Amendment did so because they wanted to pat themselves on the back about how they were supporting “equality”, and did not necessarily think of every possible situation where the principle could be applied. So in a fit of idealism they approved wording that could be applied to force outcomes they would not personally have supported if polled contemporaneously.’

    I suppose that approach *does* have some appeal, provided you’re willing to apply it consistently. Bear in mind that the words are ‘No shate shall . . . deny to *any person* within its jurisdiction the equal protection of the laws.’

    If this language operates to abolish all legal distinctions among different groups of ‘persons,’ then the impact would not be limited to marriage.

    Suppose, for instance (and this is a purely hypothetical situation), the states (or the federal government, which is subject to the equal protection clause under the doctrine of *Bolling v. Sharpe*) provide severe penalties for killing most living members of the human species (with highly narrow exceptions like self-defense), while designating a group of living human beings who can be killed in a broad variety of situations. Under the broad literalistic interpretation of the equal protection clause, such a law would be unconstitutional. To defend such enactments, the government would have to come up with bogus and totally implausible arguments about how members of the target group aren’t really ‘persons’ (although they’re living members of the human species). And no sensible judge would swallow such codswallop.

    Fortunately, no such barbaric laws are on the books today, and if it were, our activist federal judges would hasten to strike them down.

    1. Fortunately, no such barbaric laws are on the books today, and if it were, our activist federal judges would hasten to strike them down.

      Don’t bet the ranch on it. IIRC, it was still legal to kill a Mormon in Missouri until 1976.

      1. Once again, I forgot my sarcasm tag.

        Here it is – ?

  35. I’m of the opinion that the government (federal, state, or local) has no business being involved in marriage in the first place. Marriage itself is a spiritual union, before whatever deity the persons involved believe in, and therefore should not be subject to regulation.

    If a government wants to treat a married couple different from a non-married couple – for purposes such as taxation, benefits, custody/property rights in the event of divorce, hospital visitation rights, etc. – then they can claim the right to “marry” couples, whether homosexual or heterosexual, as a civilly ordained union. In this sense, it’s nothing more than a contract between two people. As such, denying homosexuals the right to enter into a civil union, which clearly must carry all the same rights and privileges as it would for a heterosexual couple, would obviously be discriminatory as we would not today consider barring interracial couples from entering into such a contract.

    We should clearly define, and separate, the concepts of marriage and civil unions. Marriage should be religious in nature, civil unions should not. Some might see this as still denying homosexuals an equal right to get married, but that would really be an argument against, as just one example, Catholicism for not ordaining homosexual matrimony in the eyes of God.

    Isn’t this pretty much how it is anyways? No matter how you go about getting married (whether in a church or by a justice of the peace), doesn’t it still require a license in most, if not all, states to have the marriage legally recognized? Let’s stop claiming that what the government is doing is providing a license for marriage, but rather what they are actually doing is simply providing a license to enter into a personal contract. In that sense, they have no authority to deny a group of people that right if they fit all other legal criterion (age, residency, etc) except for orientation.

Please to post comments

Comments are closed.