Gay Marriage

Marriage and the Constitution in Alabama

Taking refuge in bald literalism

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Alabama Chief Justice Roy Moore has a unique legal mind. He could say, like Lewis Carroll's Cheshire Cat, "I'm not strange, weird, off, nor crazy, my reality is just different from yours."

Moore, whose reality comes out of a musty corner of the distant past, once made news by erecting a two-and-a-half-ton granite monument inscribed with the Ten Commandments in the state judicial center. A federal appeals court ruled that it violated the First Amendment ban on government sponsorship of religion. It also ordered him to remove it despite his belief that he was not answerable to the federal courts.

"The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted," the court said then. "The chief justice of a state supreme court, of all people, should be expected to abide by that principle." A state tribunal eventually deprived him of the chief justice job for violating his legal obligations.

He apparently is ready to repeat the experience. When a U.S. district court struck down Alabama's law withholding marriage from same-sex couples, he once again asserted the power to disregard the federal judiciary. Moore is sure to lose, because he has no such power, and because his interpretation of the Constitution is a hopeless anachronism.

Those who oppose laws against same-sex marriage compare them to the bans on interracial marriage that many states once had. Some legal thinkers cite the 1967 Supreme Court decision overturning such laws to argue for the right of gays to wed. Moore, however, thinks that decision actually justifies the ban.

In his letter to state probate judges forbidding them from issuing marriage licenses to gay couples—as mandated by a federal court—Moore quoted the 1967 decision, which said "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men and women." He then declared, "No court or other human authority should pretend to redefine that right."

He has a gift for irony, though not of the intentional sort. The entire significance of the interracial marriage ruling was to redefine marriage as generations of Southerners had conceived it. In the Jim Crow-era South, a black-white union was not a marriage: It was a crime. Moore cites a decision that altered traditional marriage as a reason not to alter traditional marriage.

That is just one of the many bizarre features of his judicial mutiny. He claims the federal courts are engaged in an "unlawful intrusion" into Alabama's sovereignty. But the power of federal courts to enforce constitutional rights over the opposition of state officials has long been affirmed through the duly established processes of our legal system.

Moore takes refuge in bald literalism. "The United States Constitution contains neither the word 'family' nor the word 'marriage,'" he argues. "The power to redefine the fundamental institutions of society is not enumerated in any of the provisions of Article I, Section 8."

It would not be quite accurate to say that ship has sailed. An entire fleet has steamed over the horizon. The federal government drastically redefined the "fundamental institutions" of Southern society when it dismantled white supremacy. The effects of same-sex marriage are not nearly so far-reaching.

Despite the absence of the word "marriage," Moore hastens to add that the Constitution does protect the right to marry. "Although not enumerated in the Constitution, that right is retained by the people under the Ninth Amendment," he says.

Maybe so. But those who say the Ninth Amendment protects rights that are not spelled out can hardly argue that the Fourteenth Amendment—which guarantees equal protection of the laws—must be silent on same-sex marriage. The principles enshrined in our founding charter were put there to resolve not only the controversies the authors faced and foresaw, but those that would emerge long after they were dead.

The Constitution's meaning is subject to endless debate, but the task of authoritative interpretation is one that ultimately falls to the federal courts. Moore and others may not like the version that has emerged from centuries of jurisprudence, which is so much different from what it was in 1789 or 1861 or 1963. But it's the only Constitution we have.

NEXT: A Worthless Piece of Paper

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  2. Gehs.

    Now we need our daily ration of Messican, deep-dish, artisanal, circumcised (or uncircumcised), pot-smoking, cis-trans-it-non-gendered, home-brewed spacecraft to round out the day.

    THANKS A LOT, CHAPMAN.

    1. I would like to offer an alternative trio. An anti-trio if you will. Spirits, coffee, and cinema. I’m open to other suggestions.

      1. Hookers, blow and fast cars?

        1. That’s a good one.

        2. I choose Lucy Lui bot, choco from the black hills of Germany, and the Mclaren MP4-12C.

          1. 12C is old news dude, 650S Spyder is the new hotness.

        3. How about scotch ,stout and a cigar? It’s snowing and freezing here.

          1. You got me. I drink rye, ambers and don’t smoke.

      2. You don’t mean spirits in the coffee do you? Because that’s one form of integration that seems nasty.

        1. No. I take my coffee black as Allah intended, and my spirits neat.

          1. Good for you. I had a girlfriend who liked Bailey’s in coffee. I thought it was pretty nasty.

            1. Coming from the generation that despoils anything with Red Bull, you might want to be a little more cautious.

              1. You want to keep the party going, you want to keep your buzz going, it’s two birds with one stone.

                1. So, like coffee. Only it tastes like shit. I see.

          2. “I like it black. Like my men.”

  3. Moore and others may not like the version that has emerged from centuries of jurisprudence, which is so much different from what it was in 1789 or 1861 or 1963. But it’s the only Constitution we have.

    ISWYDT: Until the next version.

    1. The one which says that saying anything the government does not like is a hate crime and that you don’t need a warrent to search because of something or other.

  4. When states get completely out of the marriage licensing business then all this goes away. But so does the revenue stream and the control. And we know how likely the state will give up power and one if its money making enterprises.

    1. The government acts nearly always as a manifestation of some people trying to control others, and that’s the case here. Remember that government sanctioning of marriage is part of a complex of laws, many of which have thankfully been struck down and discarded, that sought to promote a particular form of people living together, in other words the ‘traditional marriage’ union. They used carrots (legal privileges and benefits available only to unions in that form) and sticks (criminal laws and civil punishments for adultery, co-habitation, and bigamy). This all started because for centuries the supporters of traditional marriage wanted the government to use it’s force to instill their preferred unions as the only acceptable ones.

      1. And the traditionalists should have just gotten rid of their benefits instead if marriage is so sacred, you shouldn’t need special treatment by government.

        1. I agree.

          I’ve had traditionalists tell me that traditional marriage is ‘natural,’ part of natural law, that it’s just what people were made for and how they flourish best. If that’s the case we don’t need to prod people into it.

          I seriously don’t see any heterosexual couple thinking about marrying but then saying ‘you know, now that gays can have recognized marriages it’s just not worth it.’

          1. Marriage is like wealth. There’s only so much to go around. That’s why divorce is so common.

          2. I’m so glad people are finally seeing that strawman for what it is. Two men getting married to each other isn’t destroying or even devaluing my own marriage to my wife in any way. The institution of marriage isn’t a private country club, dammit.

    2. That’s not true. When states abolish their judiciaries, then “all this goes away” in the sense of no longer being a state controversy; it then devolves into whoever operates courts then.

      As long as there are legal disputes over whether someone is married to someone else, or married at all, “this” does not go away. Licensing has nothing to do with it, any more than fishing licenses have to do with what species of fish you caught, or whether you won the fishing contest.

      1. Not States but “the state.”

        You don’t need a court to manage a contract between two (or more) parties unless there is a dispute. And that part is no different now since divorces do end up in court.

        If I own my pond, stoxk it myself, and it doesn’t receive surface waters from elsewhere or discharge to elsewhere then I don’t need a license to fish. And neither do you. But you do need my permission. But the state doesn’t need to regulate that contract between us.

  5. I think the Constitution is pretty clear: marriage is not a federal matter.

    And although arguably not prohibited by the Constitution, there is little justification for states to take money from some people to give it to guys and gals who choose to shack up together and have sex in the first place.

    1. It’s not a federal matter, but equal protection is.

      Similarly, corporation law is traditionally a state matter, but states denying corporate licenses to a group of people might be a federal matter.

      1. You are as usual begging the question. States prohibit all kinds of unions that people would like to call “marriages”, most notably polygamous ones. The question why is that they can continue to prohibit those and not gay marriage? What is different about gays from polygamists or people who want to marry their immediate relatives? The only answer people can give is that the courts have decided they like gays and don’t like those other people. That is it.

        More importantly the 14th Amendment was drafted specifically to ensure that governments didn’t discriminate on race. Governments discriminate on all kinds of basis. If they didn’t, they wouldn’t be able to operate. Equal protection does not mean, never has meant and never could mean “everyone must be treated exactly the same.” And gay marriage is not like interracial marriage anymore than polygamy is. Both polygamy and gay marriage concern classes of people that the 14th Amendment was never intended to provide special status in the way race is. Moreover, since both gays and straights are prohibited from marrying someone of the same sex, it doesn’t operate like interracial marriage. Interracial marriage was discriminatory because only white people could marry a white woman. It actually prohibited blacks from doing something white people could do, unlike gay marriage that prohibits everyone from doing something.

        1. “More importantly the 14th Amendment was drafted specifically to ensure that governments didn’t discriminate on race.”

          That’s nice, but that’s not what they wrote. They wrote a broader term.

          If you want to play the ‘what they expected only’ game then there’s considerable evidence that they wrote it expecting it to only protect blacks, not whites, and therefore it can’t be used to combat many affirmative action programs.

          Of course, there’s no reason to limit it to the ‘expectations’ floating around in the Ratifiers heads. They wrote ‘equal protection of the law’ and it’s that we must apply. I think that would cover gays in marriage and whites in university admissions, regardless of their ‘expectations’.

          1. As I said, you are untrainable. Equal protection doesn’t mean states can’t make distinctions or discriminate at all. It means they can’t do it on some basis. You are either too stupid or too mendacious to understand that simple point. Constantly reaffirming your ignorance of it is a waste of both of our time.

            1. You’re confusing me not agreeing with your argument with me not getting it. Of course some distinctions can be made under equal protection, the question is can this one be? And I’m telling you that your answer of ‘yes because the ratifiers didn’t expect it to be an issue’ is not dispositive.

              1. Why don’t we start with strictly construing the language of Section 1 of the 14th?

                It says, in pertinent part, “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 and PERSON of life, liberty, or property without due process of law….

                Should not a constitutional provision be construed literally, with every doubt being resolved in favor of individual liberty and against the projection of state power, even if it means that the feds act to constrain the states in furtherance of the objective that when it comes down to it, individual liberty must prevail over state statutes?

                1. It says, in pertinent part, “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 and PERSON of life, liberty, or property without due process of law…

                  And I’ll add that government restrictions on marriage contracts, no matter their form, are a violation of a person’s liberty since those restrictions are not based on due process.

                2. if youre a libertarian, yes that would be a very reasonable reading Mike. unfortunately libertarians seem to be in the minority on the reason boards these days, so i might be the only one here who agrees with you.

          2. And to extend your thoughts, I now see no logical reason to restrict polygamy.

            I’m fine with that as it will be the final nail in the coffin of “marriage” which has no real meaning any longer (you know, the old song about love and marriage an baby carriages?) as gay people cannot *by nature* reproduce. That observation does not make them less human, but it makes them different in an important sense upon which the survival (and very existence) of the human race depends.

            Answering an objection in advance, some couples cannot reproduce because of a number of defects, but that is not a “natural” difference, it is an error in normal function, like disease. So if you won’t assign defect in function to gay relationships (as a mental defect) I don’t see the difficulty with handling the relationships differently. Because they are different.

            1. I wouldn’t say that this entirely answers the objection. For instance, menopause can be regarded as neither a disease nor an “error in normal function” — and indeed, I don’t imagine you would suggest that we should deny marriage licenses to heterosexual couples in which the woman is no longer of childbearing age.

              Either way, the relationship of marriage laws to the act of procreation has never been as significant as their relationship to childREARING, for which they attempt to provide additional stability. Same-sex couples are just as capable of raising children as are opposite-sex couples, and opponents of same-sex marriage have never been able to demonstrate successfully that the state has a compelling interest in denying them comparable stability.

            2. Actually, you raise an interesting question: Is being queer a medical condition? That is, do queers have no choice in being queer? Or do they choose to be queer?

              The answer matters because if it’s a medical condition, treatment for it may at some point become available, and at that point if someone CHOOSES to have the disease, it’s difficult to see how they should be accorded any legal protections.

              OTOH, if being queer is just a personal preference, it’s not entitled to any protections.

              1. Well, I certainly didn’t choose to be heterosexual, nor could I become homosexual even if I so wished. I also find it counterintuitive that millions of Americans would choose to be queer, given the stigma and bullying to which it all too often subjects them.

                My intuition aside, the “treatment” you mention already exists: it’s called “conversion therapy.” It has a long history, which Wikipedia lays out pretty well. It’s safe to say that there’s little evidence for its success, and considerable evidence that it can be profoundly damaging to the individuals subjected to it.

                Just the other day, a judge in New Jersey ruled just the other day that a faith-based group claiming to offer a “cure” for homosexuality was in violation of the state’s Consumer Fraud Act. I don’t suspect that the controversy will stop there, but I do suspect that the parties who purport to offer a “cure” will need to come up with a vastly greater body of evidence for their success.

        2. The question why is that they can continue to prohibit those and not gay marriage?

          Because the courts are no less likely to stand on the FYTW clause than any other branch of government. The fact is that, today, in 2015, gays are relatively popular and polygamists and adults engaged in incest aren’t. If you really believe the equal protection argument for SSM, there really isn’t any reason to extend it to these other arrangements. But the same people screaming most loudly for gay marriage would just as loudly scream that those things are “icky”. And the courts are willing to go along with that.

          1. I don’t know Bill. I’m betting this precedent could likely be the wedge that in the near future is found in courts striking down polygamy bans.

            If anything, polygamists that engage in it because of religious reasons should be arguing that the Free Exercise and RFRA laws should exempt them from polygamy restrictions.

            1. I’m betting this precedent could likely be the wedge that in the near future is found in courts striking down polygamy bans.

              Only if public sentiment moves in favor of polygamy. You assume the courts are apolitical. Mr. Cara, may I introduce you to the penaltax. Every justice who votes against gay marriage will reject polygamy and at least one or two who will insist gay marriage is a right will flip when it comes to polygamy. The justification will be that the government has compelling interest in preventing polygamy and blah, blah, blah.

              1. They can be. Courts have struck down things that beforehand were very popular (like flag burning bans).

                1. But, the first leaves a hell of a lot less wiggle room than the fourteenth.

                  1. Not really. The 14th says “no state shall…………

                    You and I have no right to impose our values on polygamists.

                    1. Whether you and I have that right or not, the court will assert that it does. And its done so long enough that most people will find that assertion plausible.

                    2. There is also a myriad of legal issues surrounding contracts between three or more parties that simply don’t exist for contracts between two parties. In the case of same-sex marriage, it’s possible to leave the vast majority of civil law as it pertains to marriage intact, while merely expanding the definition of “marriage” with respect to the genders of the two parties involved. For plural marriage to become recognized by the government, however, vast sections of state and federal law would need to be rewritten. In theory, that could certainly happen someday. In practice, there is not nearly enough political will to make it happen, nor is there any sign that such a movement is on the horizon.

            2. Since marriage is at its base a contract, and only adults of legal age can enter into a contract, I can see the plural and incestuous marriage prohibitions eventually falling. But after that, I seriously doubt any governmental authority will take seriously any campaign to legalize human-animal or human-inanimate object marriages.

              1. But after that, I seriously doubt any governmental authority will take seriously any campaign to legalize human-animal or human-inanimate object marriages.

                Theres no ethical violation when a human marries an inanimate object. There’s also no valid contract possible in that scenario. Nor is it possible to contract with an animal or obtain it’s consent for butt sex. So both those comparisons that social conservatives like to point to, are not valid analogies.

        3. Sexual orientation has been proven biologically to be an immutable characteristic of humans. States do no have unlimited power to regulate contracts. It has to be reasonable, since the right of free contract is protected by the 9th amendment. Regulating contracts in a way that discriminates against immutable characteristics has to have a rational basis, and it does not in this case. Tradition is NOT rationality, by definition. Stop embarrassing yourself, please. To answer you question, they can’t prohibit polygamy or incest. That is, and always has been, a violation of the rights of people.

          1. And also, the 14th Amendment DOES require states to treat everyone equally.

        4. Interracial marriage was not discriminatory because only white people could marry white people, it was discriminatory because the state created a program that gave tax credits to pairs of humans and regulated those pairs based on the racial combination of those pairs. Race is an immutable characteristic, indistinguishable from sexual orientation for governmental purposes. Stop mentioning logic if you don’t understand it.

        5. youve convinced me: polygamy and incest deserve equal protection.

        6. also, i find it repugnant that john thinks state non-interference in the sexual lives of consenting adults is so preposterous he tries to form a reductio around it.

      2. Despite my explaining this concept to you a thousand times on here, you seem to be thoroughly untrainable. The actually meaning of equal protection as something beyond “that is not fair” completely alludes you and likely will forever.

        1. Sadly John, it’s you once again that is missing the point. Someone asked why this could be a federal matter and I answered that while, yes, marriage is traditionally a state matter, much like corporation law, that it can be a federal matter when there is an equal protection angle.

          Now, you think there is no equal protection matter here, I get that. But what I was saying is if there is this is how you get to this being a federal matter.

          1. If there isn’t an equal protection matter, then it is not a federal matter. The only federal matter is whether the P&I Clause and the Full Faith and Credit Clause requires states to recognize gay marriages from other states. That is a fairly interesting question and one which if answered in the affirmative would likely to have been a good precedent rather than doing it via equal protection which is going to be a very bad precedent.

            1. Full Faith and credit does not apply to everything — see gun licenses and carry permits.

              1. I think they should.

            2. “If there isn’t an equal protection matter, then it is not a federal matter.”

              Well sure. My point was just the converse of that, in response to someone wondering how marriage, usually a state matter, could be a federal one.

              1. Since you don’t understand equal protection Bo, you really can’t be trusted to explain how this is a federal matter.

                1. Again, let’s not confuse understanding equal protection with agreeing with John’s point.

                  All I was saying initially was that if someone is wondering how a traditional state matter like defining marriage can end up in a federal court, the answer is if someone is alleging an equal protection violation in that defining.

            3. If marriage is a factor in determining federal tax breaks/benefits, then it’s a federal matter. You can partly thank John “Penaltax” Roberts for that now.

          2. Equal protection talks about the rights of individuals, marriage is a contract between individuals and states do regulate contracts. If they designate a particular form of contract illegal, it is. Equal protection come in to play if the law gives one person more or less rights than another. The question become is designating the only type of legal contract being between two different sexes a violation of equal protection.

      3. But the state is not denying marriage licenses to adults. They are just stipulating that a marriage licenses must be between a man and a woman. It doesn’t say “black people can’t get married” or “Jews can’t get married.” They specifically make it that marriage is “one man and one woman.” Do I necessarily agree with this? No. But it’s not saying that a gay person cannot get married. But a two men cannot be married, nor can two women be married.

        Most states also bar incestuous relationships and marriages between close relatives (1st cousins are often permitted, but not everywhere). Is that discrimination? Sure.

        1. I realize it’s trotted out a lot, but the situation in Loving was similar. Virginia noted that under their law any black person could get married, it just had to be to another black person.

        2. What is the difference between gay and black? Biologically, nothing. Period.

  6. Who gets married anymore? stupid pieces of paper are just contracts to get half your shit legally stolen by some crazed harpy psycho-hose-beast, fuck that shit.
    In addition if you are religious, how do government blessings make it any more legitimate than doing it in front of a representative of God?
    Ive never understood teh ghey people and this marriage obsession, its silly but so is the tax code.

    If the homophobic republicrats want to get rid of the gay Marriage push then eliminate the tax incentive for marriage and get rid of the laws around it that confer benefits to married people.

    1. “Ive never understood teh ghey people and this marriage obsession,”

      Why focus on the relatively recent ‘obsession’ of gays on marriage when heterosexuals have been getting the state to bless and support their marriages for centuries?

      1. Dammit, Bo — Marriage is the FABRIC OF SOCIETY!

        Or is it cotton? I always get that confused.

        1. Given cotton breathes easier I’d think the appropriate analogy to marriage is polyester.

          1. So, a *good* marriage is like Spandex?

            1. Well played sir.

        2. No, cotton is “the fabric of our lives”. 😀

          Marriage may be the fabric of society, but here’s a good analogy: Gay (polyester) marriage is just as valid (durable) as traditional (cotton/wool) marriage.

    2. I shouldn’t have gotten married. It doesn’t make tax sense to be a DINK. They just steal more. But try explaining that to women.

      1. Exactly that. The only benefit to marriage is that you can force your employer to recognize your wife as a dependent or get the Federal government to give her a VISA. That is it. I wish people would stop telling the lie that marriage is some kind of welfare program. Unless you are a one income household, it mostly gives people the right to get fucked on their taxes. And even if you are a single income household, it is no more “welfare” than any other tax break. Sorry but keeping more of the money you lawfully earned is not welfare and fuck anyone who says otherwise.

      2. And marriage also means you and your wife can’t break up without asking “mother may I” from a state court judge and having the state decide how your property should be split. Marriage is all about freedom to have the terms of your ending the relationship determined by a judge and the welfare benefit of paying more taxes.

        1. That’s right, it’s a commitment. Often people, in order to show the other party how serious they are about the commitment, invite a third party to police them on it.

          1. They can do that without a judge. Its called binding arbitration. And understand how ridiculous what you just said sounds.

            Gays need to be able to show their commitment by submitting themselves to judicial tyranny like straight couples can.

            1. Why are you married, John? You enjoy submitting yourself to judicial tyranny?

  7. It’s a common thing for state and local officials in some places to resist decisions of federal courts striking down their state or local laws as unconstitutional. Analogous to what’s going on in Alabama, here’s an article on how many local government officials have engaged in resisting the recognition of individual gun rights following the Heller and McDonald decision.

    http://papers.ssrn.com/sol3/pa…..id=2488687

  8. It would not be quite accurate to say that ship has sailed. An entire fleet has steamed over the horizon. The federal government drastically redefined the “fundamental institutions” of Southern society when it dismantled white supremacy. The effects of same-sex marriage are not nearly so far-reaching.

    So the courts can now enact any change they like? The 13th and 14th Amendments were drafted to keep the states from doing what they were doing in Jim Crow. All those decisions did was finally enforce the Amendments as they were intended. Moreover, most of the real changes were the result of the Courts expanding the commerce clause to give the feds the right to regulate any public accommodation. The 14th Amendment had nothing to do with most of the actions Chapman is talking about. Does Chapman think the Commerce Clause gives the feds the right to mandate gay marriage?

    1. Privileges or immunities…like the right to operate a slaughterhouse, unmolested by a state.

    2. Does Chapman think the Commerce Clause gives the feds the right to mandate gay marriage?

      Well according to the courts, the Commerce Clause gives the feds authority to do whatever the fuck they want. Maybe I haven’t researched enough, but I can’t recall any Commerce Clause case since the New Deal where it wasn’t found to be a sufficient justification for a law.

  9. Maybe so. But those who say the Ninth Amendment protects rights that are not spelled out can hardly argue that the Fourteenth Amendment?which guarantees equal protection of the laws?must be silent on same-sex marriage.

    That is a great argument for why things like sodomy laws are counter to the Constitution. If the law in Alabama made it illegal for gays to live together and call themselves married, Chapman would have a point. That is not the issue, however. The issue is does the State of Alabama have to force all of its citizens to recognize gay marriages. That is not a “right” in any Libertarian sense. That is a bullshit prog positive right. It is a right to force other people to accept you, not a right to do what you wish in peace.

    The Constitution’s meaning is subject to endless debate, but the task of authoritative interpretation is one that ultimately falls to the federal courts. Moore and others may not like the version that has emerged from centuries of jurisprudence, which is so much different from what it was in 1789 or 1861 or 1963.

    Which is another way of saying fuck you that is why. Would Chapman buy such a bullshit “that is the way it is” claim on something he didn’t agree with? Moreover, if “that is the way the is” is a legitimate argument, then how does the Constitution mean anything or provide any protections in Chapman’s view? All he is saying here is that any interpretation the court likes is legitimate.

    1. The 9th Amendment angle has to do with the ‘fundamental right to marriage’ which is somewhat separate from the equal protection one.

      1. The people of Alabama have no right to regulate the associational and contractual relations of Billy Bob and Jethro.

        1. Then the state should not be issuing marrage licences in the first place.

        2. The state does not have the right to regulate contracts? News to me.

          1. No. The court has the power to enforce the contract, which gives it the de facto ability to regulate the terms by failing to enforce certain ones, but that is not the same as a “right” to do so.

    2. ” The issue is does the State of Alabama have to force all of its citizens to recognize gay marriages.” That’s not what’s happening. The fact that progressives think they can force you to bake a cake for someone is completely different than saying that the state, if it going to recognize marriages, must recognize them in all gender combinations.

  10. Anyone else here just shocked that a federal judge actually referenced the Ninth?

    1. State chief justice, whatever. Still… that’s something you don’t see every day.

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  12. “”””But the power of federal courts to enforce constitutional rights over the opposition of state officials has long been affirmed through the duly established processes of our legal system.”””

    The process being winning the Civil War?

    1. I love it when unionists cite the Civil War as a judicial precedent, in order to determine the legality of all sorts of federal usurpations. Anyone who concedes that ‘might makes right’ has no idea what rights are.

      1. You know who else… ah fuck it.

  13. The case in Alabama is not well understood. Moore is actually on fairly firm legal ground. The case was filed against the Attorney general of Alabama and he has zero authority over the probate judges that issue the licenses, the State Court runs that, not the Attorney General. The Federal court is ordering the Attorney general to do something he has no authority to do, and the case itself was filed against the wrong department. It really does not matter that much as the issue will be settled in June by SCOTUS.

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  15. Knock knock. Hello Mr. and Mrs. SCOTUS, can the 9th Admen come out and play? Ohh, you sent him off to live with distant relatives? No wonder I’ve not seen him around.

  16. Anyone arguing that there should be no such thing as state marriage must either be unmarried or planning to head to divorce court soon to rectify his situation. Anything else is, of course, blatant hypocrisy and duplicity.

    1. I will disprove you thusly:

      There should be no such thing as state marriage.

      I am:

      Happily married and not going to divorce.

      This may be the most easily and certainly disproved argument you’ve ever made. Good job!

    2. You’re really bad at this argument business.

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  18. But the power of federal courts to enforce constitutional rights over the opposition of state officials has long been affirmed through the duly established processes of our legal system.

    Through a war that violated the Declaration of Independence and the Constitution terribly.

    Now, I will argue until I’m blue in the face that marriage is not the place for government and that I won’t use force against those who use the term in a way I sincerely believe is wrong… But there’s no reason to make the argument “Civil war, ergo no 10th amendment.”

    Just because it’s ‘settled law’ doesn’t mean it’s right or is logically consistent.

  19. Like many analysts, Chapman doesn’t know the difference between a definition and a substantive statement. Racially restrictive marriage laws were the latter, not the former. An interracial marriage could not have been a crime if the law determined it not to be a marriage at all; it did not do the latter. Marriages may have been annulled or invalidated by such laws, but not defined out of existence.

    I see this confusion all the time, resulting in mischief everywhere from the writing of sports rules to legal reforms. I’m sure there are some contracts that are messed up by such confusion too, although it probably happens more rarely in that context.

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  21. How can we consider ourselves free if adults need to ask government permission to form a personal relationship. We need to end government issued marriage licenses which have been a tool of discrimination from day one, first against inter faith and inter racial marriages.

  22. Marriage is not a guaranteed right, it’s a state granted privilege. Unfortunately few Americans can tell the difference and at this point you have more right to a mere privilege than you do to a constitutionally enumerated and guaranteed right.

  23. Natural rights must be justified in nature, or they can’t be natural rights.

    The natural purpose of sex is to reproduce. Nothing else.

    The natural purpose of marriage is to have a stable family unit to raise the children you are RESPONSIBLE for bringing into this world. This kind of marriage predates civilization, religion, and even spoken word.

    Gays can’t satisfy the natural purpose of marriage, and thus they have no natural right to it. Society can, at their discretion, accept or reject any other kind of “marriage.”

    1. The Supreme Court established that people do have a right to marriage. “Natural rights” have nothing to do with it. The essential term here is “equal protection of the laws”. We’ve given married people so many tax and legal benefits, so of course it makes sense to let same-sex couples in on them. And yes, they are perfectly capable of forming “stable family units”.

  24. Further, the society of the people in Alabama rejected this other type of “marriage” with the support of 81% of voters.

  25. The definition of marriage has for a thousand years implied a bond between a man and a woman. I don’t know what you call a union between a man and a goat, a woman and a horse, or between two men or two women… but it’s not marriage. What queers seek to do it REDEFINE the term, and they should not be allowed to do that.

    That said, if they want to call it something else, I don’t much care what they do.

    The primary problem has been that queers have been discriminated against because their union (whatever you call it) has been held to be somehow less that marriage – especially where government is concerned. And so we arrive at the root problem: government handing out special favors to one group while penalizing another. The solution is not to employ government force to torture and mangle the definition of “marriage”, but to get government OUT of the preferential treatment business.

    This is primarily a problem created by too much government – one that can be solved by less government.

    1. Most succinct comment I have read so far. It’s incredible that a Libertarian website has so many commenters agreeing with an unelected federal judiciary redefining the marriage laws of the country–thereby throwing millions of votes in the waste basket.

  26. Faggots, faggots, faggots!!! At the signing of the U.S. Constitution, the 14th amendment…, a n d …, the ‘civil rights act’…, homosexuals were NOT…, ‘included’ as EVIDENCED…, by the
    FACT…, that the LAW at EACH of these time periods required them to be either put in jail or put in the ground!!! PERIOD!!!!!!!

  27. In addition, the faggot loving eu had its…, high court to rule on this matter last year. And guess what…, they said N O !!!!!!! They determintd that homosexuality is a BEHAVIOR…, NOT…, ‘genetic’!!!!!!!

  28. Furthermore…, Terry Bean age 72 who is the co-founder of the ‘human rights campaign’ and a ‘pioneer’ in faggot ‘rights’ just got
    A R R E S T E D …, last november along with his 25 year old ‘boyfriend'(YUCK!!!) for child pediastry with a 15 year old boy!!!!!!!!!!!!

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  30. This is an interesting Reason article: Chapman simply has no useful understanding of idea of marriage and the law and the first 10 comments suggest that most of Reason’s faithful reader are morons.

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  32. I believe consenting adults have a right to have sex, live together and raise families without government interference. I don’t believe they have a right to pay lower taxes, which imposes a cost on everyone else (of course I think everyone should pay lower taxes, but they should be imposed fairly). I don’t see how legalizing gay marriage increases liberty, since in fact it just expands the pool of people with special tax privileges that everyone else has to pay for. Libertarian should be focusing completely on abolishing all state privileges for married couples.

    And even if you don’t think tax privileges for married couples are an offense to personal liberty, public accommodation laws that punish businesses for refusing to recognize gay married couples are most definitely an assault on liberty by any definition, and legalization of gay marriage has certainly increased the number of these cases. The idea that support for gay marriage is increasing the scope of liberty, however incrementally, seems pretty weak to me.

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