Gay Marriage: Did Obama Finally Get Something Right?

Yesterday was the deadline set by the Supreme Court for the submission of friend of the court briefs supporting the legal challenge against California's Prop. 8, which amended the state constitution in order to forbid gay marriage. Ending months of speculation, the Obama administration came in just under the wire, filing a 40-page brief last night calling for the judicial nullification of Prop. 8.

Unlike the legal challengers, however, who framed the case against Prop. 8 as a matter of liberty versus overreaching state power, and therefore called for the legalization of gay marriage across the country, the Obama administration split the difference, offering an approach that would legalize gay marriage in California and the seven other states that currently grant marriage-like benefits to gay couples through civil unions, but would go no further than that. The administration's argument is that "Proposition 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection."

So it's not the bold endorsement of a constitutional right to gay marriage nationwide that many gay rights activists were hoping for from this administration, but it's also not a plea for the federal courts to stay out of the matter and let each state operate as a democratic laboratory by setting its own policy.

It's possible the Supreme Court will adopt this very approach, though the brief is probably best seen as a political statement attempting to align the Obama administration with the increasingly popular cause of gay marriage.

Oral argument is scheduled for March 26 and a decision is expected from the Supreme Court by June.

Comments

[DEATFBIRSECIA]

OT: The sequester is killing the Blue Angels!

http://news.yahoo.com/spending.....28653.html

Where will this madness end?!?

[Certified Public Asskicker]

Gay Marriage: Did Obama Finally Get Something Right?

Nah, he could have done better than Michelle.

[AlmightyJB]

Why do you hate wookies?

[Certified Public Asskicker]

I don't, I support their right to marry dorky men.

[AlmightyJB]

"Did Obama finally get something right"

When the writings on the wall what us you going to do. When his sids is losing he sneaks over to the other side and yells Lets Get Em.

[wareagle]

Obama had nothing to do with it. His oh-so-convenient conversion on the issue the day AFTER NC's referendum is typical lead from behind.

More and more states are moving toward legalization of gay marriage and that will continue irrespective of which ward boss is in the Oval.

[Virginian]

If they strike down this, it's the final nail in the coffin for federalism.

I mean, if the voters of a state can't amend their own constitution, then states are just districts of the federal government. They don't have real power.

Although I suppose you could argue that gay marriage is one of the rights addressed by the 9th Amendment, and thus it's incorporated through the 14th to all the states.

[John]

^^THIS^^

And disappoints me to no end Reason is so in love with fighting the culture war they can't see that.

[Virginian]

Well not every libertarian is a federalist. Some are fans when it advances liberty, and opponents when it doesn't. Others think that the institution is a good idea in general, even when it fails in specific cases to advance liberty.

I mean, we don't really have true federalism any more, what with the grants the Feds use to whip states in line. But I'm hesitant to throw it out of the wagon because of something that, while not trivial, is certainly not even in the top five things restricting liberty in this country.

[Marshall Gill]

How is government recognition of personal relationships "liberty"? Since Lawrence vs. Texas, the outlawing of homosexual relationships has been declared unconstitutional. Same sex couples have the liberty to call themselves whatever they wish. Denial of government recognition or benefits is not "liberty".

[Tony]

Denial of equal rights is unconstitutional, whatever it has to do with liberty.

[John]

Tony that is the dumbest thing you have ever said on here.

[Jordan]

And what would you have to say about federalism if Illinois voted to completely ban firearm ownership?

[John]

I would say there is a federal right to firearm ownership written in the Constitution. Therefore, they can't do it. There is no a federal right to gay marriage unless you want to believe that a group of judges and elites can dream up and insert new rights into the document that were never intended to be there.

And if you guys think that is a good idea and won't be used by liberals to make other policy preferences constitutionally mandated, I wish you luck with that.

[Tony]

According to multiple SC rulings, there's also a federal constitutional right to marry and to be able to marry the eligible person of your choice--unless you're gay.

[John]

Tony, you can marry whomever you want. You just can't use the police to stick a jackboot on everyone around you to make sure they support you and recognize your decision.

[Tony]

All I care about is that the law treats people equally. Nobody's forcing you to stop being a small-minded idiot.

[Virginian]

Pre 14th, I'd say they had the power to do that. But since the 14th was passed, states do not have the power to violate the rights protected by the federal Constitution. RKBA is explicitly mentioned, while gay marriage, if we were to decide it applied, would fall under the 9th Amendment.

Look, if I lived in CA, I would have been on the losing side of Prop 8. I'm just incredibly wary of the precedent striking it down would set. The Court would literally be saying that states can amend their constitutions however they like, as long as the federal government approves. Which means federalism is over.

Now maybe it's worth it. Maybe allowing gay couples to get a piece of government paper is worth cost of the final destruction of the institution of American federalism. I don't think it is.

[Hydronium Hydroxide]

The people aren't being treated as second class citizens under the law. They aren't being officially called a name by the state government. Stop moving the goalposts tony.

[Tony]

Marriage is considered a basic, essential human right by this country. How many basic human rights do gays have to be denied before they are second-class?

[John]

Lets think about this for a moment. There was no such thing as gay marriage before the 1990s. No one had ever thought of it. The people who wrote the Constitution and the Bill of Rights and the 14th Amendment had no concept of such a thing. And now we are not just going to say "hey this is a good idea" but we are going to say "this is a right that is in the constitution and states must enact it."

You guys really think that is a good precedent to set? Just how do you plan to argue against the next "right" that a few judges and elites dream up? If there is a right to gay marriage, why isn't there a right to welfare, healthcare, a job and every other positive right the left has been dreaming about for decades? Oh I know, those are different rights. Those are positive rights. Those are different. The Courts will totally believe our arguments about the difference and never again try to invent rights for the sake of fighting the culture war or enact policies by processes beyond the democratic process. Never.

[R C Dean]

Me today, you tomorrow.

[John]

And of course telling a people to go fuck themselves they can't even amend their own state constitutions to enact a policy most of them want is a great precedent to set. No one will ever abuse that power.

[Jordan]

And of course telling a people to go fuck themselves they can't even amend their own state constitutions to enact a policy most of them want is a great precedent to set.

You don't even realize how much you sound like Tony, do you?

[John]

You realize how much you people sound like Tony when you argue that the Constitution contains all of these "rights" to things that were never contemplated and in fact would have been rejected by the drafters? It is called projection Jordan.

[Tony]

Equal protection is a long-established right.

[John]

Shut up sock puppet. Equal protection never meant that the state couldn't define marriage until little brown shirts like you decided it was the way to fight the culture war.

[Tony]

What do you mean by culture war exactly?

If there's a culture war on, why shouldn't I want to win it?

[John]

It is totally your culture war Tony. The whole goal of you and people like you is to criminalize anyone who has any problem with your lifestyle. You want to make it that no one can so much as make a statement about your choices without risking civil and criminal liability.

[Tony]

From which orifice did you pull this new paranoia? What do equality proponents want to criminalize, again?

You have to know you're on the wrong side of this. Are you really that stubborn?

[John]

Just because that is the case in Europe, the UK and Canada doesn't mean it won't happen here. Shut up Tony.

[Tony]

So gay people ought to be treated as second-class citizens under the law because... why again? Because you think the next step on the slippery slope is to criminalize your speech? Sounds like a ridiculous dumbfuck excuse to be a bigot to me.

Why don't you try not being a bigot?

[wareagle]

if there is a right to gay marriage, then there must also be a right to the other two components of how we typically define marriage - two people, unrelated. The polygamists are next with cousins to follow. Maybe the whole thing will be treated like contract law, seeing as how marriage is a contract.

Obamacare has pretty much codified the right to health care and plenty of folks are agitating for like status on the other things you mention.

[Jordan]

The polygamists are next with cousins to follow. Maybe the whole thing will be treated like contract law, seeing as how marriage is a contract.

Yes, that's exactly how it should be.

[John]

Except that the writers of the constitution intended no such thing. If you want it to be that way, fine. Go win an election and make it that way. But don't rape the Constitution so you can get your way.

[Jgalt1975]

Cousin marriage is already legal in many states.

http://en.wikipedia.org/wiki/C.....s_by_state

[Ptah-Hotep]

You guys really think that is a good precedent to set? Just how do you plan to argue against the next "right" that a few judges and elites dream up?

Do you think two couples should be treated the same under the law, based on both couples being married? I don't see how this is a positive right, but simply treating citizens equally based on a characteristic - being married.

[John]

I understand the argument that this isn't a positive right. First, I think it is since once the government recognizes your marriage, other people are forced to recognize it by force of law. That is the whole point to getting government recognition. You can be "married" right now. You had a right to do that they day the sodomy laws went down. But what you can't do without gay marriage being recognized by the government is get other people like hospitals and employers and such to recognize your marriage. So I think it is a positive right.

Second, even if it is not a positive right, you are depending upon the good will of future courts to both see that distinction and care about it. Future courts may see it as a positive right and this as precedent for more positive rights or they may not care if it is positive or not and just see it as authority and precedent for inserting new rights into the Constitution.

[Ptah-Hotep]

First, I think it is since once the government recognizes your marriage, other people are forced to recognize it by force of law.

But that is the case with marriages now. That the government recognizes them is a positive right, in your words. So what is the difference between a positive right for heterosexual couples vs. a positive right for a homosexual couple? If the government is going to recognize that (positive) right, it cannot discriminate, correct?

[John]

Sure that is the case. That is the whole point. It is a positive right, therefore the government gets to decide who gets it and who doesn't. Getting a welfare check is a positive right. That means if they cut you off, you can't claim your constitutional rights were violated as long as they had a rational and consistently applied rule for cutting you off.

Same here. Since it is a positive right, the states get to define marriage. And there is nothing that says it has to include those of the same sexes.

I would also point out that if gay marriage is a right, all marriage is a right. That would seem to mean that the Constitution precludes ever getting the government out of marriage, that goal that every libertarian gay marriage proponent claims to have.

[Ptah-Hotep]

Same here. Since it is a positive right, the states get to define marriage. And there is nothing that says it has to include those of the same sexes.

You would be correct pre-14th, but not post. The 14th states that

No State shall make or enforce any law...nor deny to any person within its jurisdiction the equal protection of the laws.

If the fedgov is going to recognize hetero marriage, they must recognize homo marriage as well. Getting the government out of marriage would settle the issue, but that isn't going to happen.

[John]

You are missing the point. Equal protection doesn't mean they treat everyone equally in every aspect. If you had to do that, you couldn't do anything. The state still has a right to make distinctions. For example, no is no equal protection mandate for an 18 year old drinking age. The state decides what age you can drink. There is no equal protection right to welfare (yet). The state can say these people get get checks and these people don't provided that they have a rational reason for making the distinction.

You are basically begging the question. The question is is sexual orientation a distinction a state can make. My answer is that since being gay was illegal in every state when the 14th Amendment was passed, yes it is.

[wareagle]

If the fedgov is going to recognize hetero marriage, they must recognize homo marriage as well.

in our history, the federal govt - to the extent that it has dealt with marriage at all - has recognized it as between two people of opposite sex who are unrelated. How often has some arm of govt gone after polygamists, including those where all the participants are of legal age.

Govt will never be totally out of marriage because even in the best of circumstances, there is a contract involved and the state's role is to protect the rights of those involved.

[Ptah-Hotep]

in our history, the federal govt - to the extent that it has dealt with marriage at all - has recognized it as between two people of opposite sex who are unrelated. How often has some arm of govt gone after polygamists, including those where all the participants are of legal age.

But you have states saying that it is legal for two people of the same sex to be married now. So the fedgov should treat them the same as other married people. Do you lose you rights when you leave your home state?

[wareagle]

Do you lose you rights when you leave your home state?

that is a corrolary to the broader debate. The same question could apply to gun rights - there is a Second Amendment and there are also state/local laws that restrict ownership.

A state that does not recognize gay marriage is not likely to recognize the one you had performed in a state with such a law. But I doubt the state patrol will set up checkpoints to monitor marital status.

[Ptah-Hotep]

that is a corrolary to the broader debate. The same question could apply to gun rights - there is a Second Amendment and there are also state/local laws that restrict ownership.

Exactly, which is why I have limited myself to what I think the fedgov should do. If you have a valid marriage in a state that recognizes it, the fedgov should as well. Moving state to state gets tricky, but I don't think you should lose your rights if you do move.

[Loki]

"Proposition 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage violates equal protection."

Huh? I'm not sure how equal protection of the law is violated if gay couples are still "granted" all the same rights as married couples. Is it just that they want to use the word marriage? If so, what's stopping them? I'm not aware of any provision in CA or federal law that imposes a criminal penalty on gay couples who refer to themselves as married, even if the legal term is civil union. Who gives a shit if a gay couple with a civil union wants to go around saying they're "married" instead of "civil unioned"?

Perhaps if the government wasn't in the business of granting "rights" (priveledges is probably a more accurate term) based on how people choose to arrange their personal lives, this wouldn't be as much of a problem.

[sarcasmic]

I'm not sure how equal protection of the law is violated if gay couples are still "granted" all the same rights as married couples. Is it just that they want to use the word marriage?

That is exactly it.

The whole point is to allow same sex couples to initiate aggression through the courts against anyone who commits the thoughtcrime of believing marriage to be a union between a man and a woman.

Soooooo libertarian.

[Tony]

You should believe gay people are equal citizens because you're a decent human being. But this bullshit paranoia is no reason to deny equal legal rights.

You could make this argument against any civil right. Interracial couples shouldn't be allowed to marry because they might sue people for believing it's wrong. Libertarians shouldn't be allowed to speak because they might sue anyone who calls them moronic fucktards. Etc.

The fact that you're being so obviously incoherent and irrational is a sign that there is no credible argument against marriage equality.

[sarcasmic]

What part of "gay couples are still 'granted' all the same rights as married couples" did you not understand?

Fucking feeb.

[Tony]

The part where they're not?

[sarcasmic]

You remind me of this song.

http://www.youtube.com/watch?v=bfrQ8ZutmLE

[sarcasmic]

and therefore called for the legalization of gay marriage across the country

Does that mean that those poor people who are in prison for the crime of illegal marriage will be released?

[Hydronium Hydroxide]

Wrong reply. It keeps not letting me post. Am I being Watsoned?

[Eduard van Haalen]

"Watson, come here...I want you."

/The first phone-sex line.

[Eduard van Haalen]

"the Obama administration split the difference, offering an approach that would legalize gay marriage in California and the seven other states that currently grant marriage-like benefits to gay couples through civil unions, but would go no further than that."

The President just flipped off all the thoughtful "moderates" who approved "civil unions but no of course not it's not marriage!"

Obama just said that there's no room for moderation on this issue - you're either for gay marriage or against it, but you can't sit on the fence and pretend you're splitting the difference.

And I love how it says Obama "would go no further" than legalizing gay marriage in civil-union states. Last year Obama was a federalist who thought the issue should be up to the states. Now he says states have an either-or choice between denying or recognizing SSM. Next year (or after the midterms) he will say that all states must have SSM. Does anyone actually believe he's taking a middle-ground position, or that he's simply biding (or Biden) his time?

[Eduard van Haalen]

And this shows the purely tactical nature of the professed "moderation" of the SSM types.

In California and other "civil union" states, it was all, "well, if you people won't accept full marriage equality, won't you at least be moderate and allow civil unions as a compromise measure? You're not extremists, are you?"

I know people who actually fell for that sort of reasoning. I mean, civil unions are the moderate position between the "extremes!"

Now all those people are told they were saps.

Likewise with all the "federalism" arguments. "You people will at least allow the states to set their own policies, right?" Then it's "ha! Just kidding about that, the states shouldn't have the choice to make laws we consider bigoted!"

Likewise with the campaign for libertarian support. "You believe in getting the government out of the bedroom, don't you? That's pro-freedom, isn't it?" Then, later, they'll be all like "those Koch whore libertarians believe in the right of private Korprashuns to discriminate against gays! What fascists!"

[Tony]

Civil unions do not cover the range of rights granted to married couples, and gays are completely barred from federal benefits. It's a "separate but equal" situation, except it's not even equal.

I suspect some libertarians give the issue the time of day because they actually think gay people are normal human beings. I'm convinced there are some decent people among libertarians.

[wareagle]

does every state have civil unions? I don't see that they do because if those were available, a lot of hetero couples would go the same route.

Your point about definitions is valid; many opponents balk at the use of "marriage" as their belief is the term applies to one man, one woman. Of course, it's easier to dismiss them as bigots rather than address their point, and a good many proponents do want the word redefined.

[John]

Yes Tony we know, civil unions don't allow you to make criminals out of your political enemies and that is why they are not sufficient.

[wareagle]

that is weapons level derp even for you. Few folks here oppose gay marriage under any terminology. Plenty oppose the govt having any role in marriage at all beyond that of enforcing provisions of a contract.

[Tony]

They also owned people. Let's not use 18th century cultural standards as our guiding star, shall we?

There are perfectly intelligible arguments in favor of a constitutional right to equal rights with respect to marriage. That it hasn't been recognized before was the error.

And the fact is there is no intelligible argument for why gay people shouldn't have equal marriage rights.

[Tony]

If you keep referring to it as a war then I don't see why one side shouldn't get to fight in it. It's your term. You're going to lose the war. Sorry.

[Loki]

The problem with this and all "culture war" bullshit is that the culture warriors on both sides seek to use government force to impose their cultural views on the rest of the country. I'm perfectly fine with some people thinking that homosexual behavior is A-Okay. I'm also fine with some people being repulsed and disgusted by it so long as neither side tries to use government force as a weapon.

FWIW I fully support the rights of gay couples to enjoy equal protection under the law, as the 14th ammendment requires. And they can call themselves whatever they want: civil unioned, married, butt buddies, box chompers, you name it. The problem with the opposition to Prop 8 is it sounds like they already have equal protection via CA's civil union law. Maybe they don't, I'm not an expert on CA civil union laws so I perhaps there's some subtle difference that I'm not aware of. If so the solution is to change CA civil union law

[Tony]

I don't think redneck morons are normal human beings. But I'm not gonna endorse legal inequality for you, even if my first impulse is to throw you all into reeducation camps until you stop fucking up my beloved country via sheer idiocy.

[Tony]

And the 14th bans unjustified unequal treatment under the law.

[wareagle]

tony,
same sex partners wanting certain legal protection fazes almost no one here. Gay activists wanting a cudgel that forces everyone else to see things their way fazes almost everyone.

Refusing to recognize that people who disagree with you do so on principle is not their problem.

[Tony]

Most people support gay marriage equality. That support is only going to grow with time.

In fact, the people who elected Obama are going to be voting for 50 more years. Chew on that.

You are losing this "culture war" and it's sad that you don't understand that.

[Tony]

It clearly fazes some here.

I made the argument the other day that libertarians are essentially pussies. They want a radically different society, but they never suppose that they would have to suffer or go through any sort of hardship whatsoever in that new society. For them, it's always a utopia.

If libertarians were really up to the challenge of their philosophy, these gay marriage threads would be barren wastelands, since there is one obvious pro-freedom opinion you can have on this, and not another.

Instead half of you are pissing your pants over the thought of marriage equality, something that won't affect your life in the slightest way. If you can't handle even the slightest discomfiting change then stop advocating the most radical change of anyone in American politics.

[Tony]

I think my culture is superior to yours, and if you insist upon having a war over the issue, I want to win it. I don't see why you should be surprised by that.

I'm for live-and-let-live personally.

[Tony]

Attitudes among blacks and latinos are shifting in the right direction too. This is not abortion: there is one right answer and one wrong, bigoted answer, and there is absolutely no way, short of some kind of cataclysmic theocratic cultural reversion, opinions are going to do anything but further support gay equality. Young people are used to having gay people in their lives and wouldn't think to treat them as a subclass.

As for sodomy, it must be rough never being able to have a good BJ. Sorry man.

[John]

Freedom is slavery. Nothing says "freedom" like using the force of law to make everyone recognize your marriage.

God you are pathetic. And the sad fact is that if you are like most gay men, you at most want a wedding and have no desire to give up loads of anonymous sex for marriage. But that won't stop you from using the issue to criminalize the people you hate.

[Ptah-Hotep]

I'm for live-and-let-live personally.

Tony, you may be, but there are some who like to sue people for having a difference of opinion. That, fairly or unfairly, gets credited to all people who belong to that class. That, being sued for having a difference of opinion, is what most people, me included, object too.

[wareagle]

I'm for live-and-let-live personally

no, hell no, you are not. You are for using govt force to get your way and, if possible, for criminalizing any action to the contrary.

[sarcasmic]

Nothing says "freedom" like using the force of law to make everyone recognize your marriage.

I know it. It's so libertarian to use force against anyone who thinks differently than you.

[Tony]

I don't want to criminalize anything! You're just making shit up.

[Tony]

I don't think the First Amendment is going away any time soon. And being against rectifying an injustice on that ridiculous paranoia seems suspiciously like excuse-making.

[Tony]

You can't be real.

[wareagle]

tony, prop 8 lost in CA in large part due to black churches, the same people who opposed teh NC referendum that pre-dated Obama's miracle conversion. That would make the problem more endemic in typically Dem ranks than among righties.

[Tony]

Gay marriage opponents are more easily mobilized than proponents. Because they're already all grouped together in churches.

But it's irrelevant as the whole question is whether simple democratic majorities have the right to deny a civil right.

[Ptah-Hotep]

I don't think the First Amendment is going away any time soon. And being against rectifying an injustice on that ridiculous paranoia seems suspiciously like excuse-making.

Not sure what you mean by this. If you are talking about freedom of association, people are being sued for not serving gays. That is what people here are trying to tell you. If you want equality, no big deal. But don't turn around as a "protected class" and sue people who do agree with you. That is what people here object too.

[Tony]

I don't see what the problem is. You can sue for whatever reason you want. We have a system in place to determine whether the grievance merits redress. Whether gays are allowed equal marriage rights or not doesn't change that.

[wareagle]

I'm for a normal moral mentality, the mentality that human being have always had, throughout the entire world

so in context, you are the flip side of the coin from Tony. You both seek to use the coercive power of govt to codify your belief systems.

By the way, homosexuality is not exactly a new thing. Maybe the Constitution does not speak to such issues because it didn't contemplate busy-bodies wanting to dictate people's private lives.

[sarcasmic]

Tony's moral code: Might makes right.

[Ptah-Hotep]

You can sue for whatever reason you want. We have a system in place to determine whether the grievance merits redress.

So you have no problem with using the courts to punish people who don't think like you do, and yet you don't see this as a problem?

[sarcasmic]

I don't want to criminalize anything! You're just making shit up.

Randian?

[wareagle]

claiming marriage as a civil right doesn't make it one. Some people on your side say the same about the so-called living wage.

[Tony]

I have no problem with having a judicial system, no. I don't think I have the power to "use" the courts to punish people for their thoughts.

[Tony]

The supreme court making the claim at least 14 times actually does make it one for all intents and purposes.

[Tony]

Willfully dismissive, you mean.

And even if you acknowledge a distinction, you still have to justify why we should have no positive rights. I thought libertarians were for maximum freedom, but it's clear you're for minimum rights.