Time for Gay Marriage Debate to End
The California Supreme Court has overturn the state’s ban on same-sex marriage, opening the door to official recognition of same-sex relationships. Conservative groups are already spinning up, setting Constitutional amendments as their goal.
Its time to end this debate. The plain meaning of the equal protection clause indicates that the state cannot deny benefits based upon sexual orientation. Insofar as state recognition of a partnership (it need not be called “marriage”, but it can be) carries various material benefits and privileges, there seems no logically sustainable ground to deny it. The contortions that opponents of same-sex unions undertake in their efforts to talk their way around the Constitution are demonstrations of the illogic in the argument.
Many social conservatives will, of course, be uncomfortable with this decision. Long accustomed to tacit acceptance of a privileged position for Christian interpretations of morality in the law, the feel the loss of that privileged position to be a threat to the institution of marriage. They need to get over it, because there are much bigger and more important issues to be concerned with. International chaos, economic turmoil, and a crisis in energy supplies are more than enough to challenge the energies of policymakers — the “gay marriage issue” is an irresponsible waste of time and resources, especially for conservatives.
Besides, there is no threat to one’s own marriage from other people having a marriage that differs from one’s own. And the First Amendment stands as a bulwark that prevents any scenario by which the state orders particular religions to undertake marriages that they find morally objectionable. The only effect of same-sex marriage is to open a door for same-sex couples, it closes nothing off for anyone else.
A few points:
All voluntary associations, whether they are economic or social, should be protected by the law. Now the fight must move towards state recognition towards humans and animals as long as the animal in love can legibly sign the marriage certificate.
I honestly feel this is a step in the wrong direction. Instead of moving to ban gay marriage, we need judicial decisions and constitutional amendments banning straight marriages. I’ve seen how unhappy most older married straight couples are and I don’t want to see our homosexual brethren suffer the same fate.
Debate the merits of the issue all day long, but please refrain from making statements like, "The plain meaning of the equal protection clause indicates that the state cannot deny benefits based upon sexual orientation." Wow. Didn’t learn that one in law school. That’s because nearly all courts, in the same-sex marriage context and others, reject this oversimplistic analysis. Sexual orientation isn’t a protected class (like race) nor does it fall in the intermediate scrutiny class (gender). As a result, it drops into a lowest tier of scruitiny, and the state must simply demonstrate a rational basis for the law. Nothing plain about any of this.
Second, as Justice Scalia is fond of pointing out, if the plain meaning of the Equal Protection clause is as you say it is, why was it necessary to pass the 19th Amendment (women’s right to vote)? If the E.P. clause was plain in its meaning, then the 19th Amendment was redundant and unnecessary. That’s not the way it was viewed at the time, casting serious doubt as to the "plain meaning" of the clause.
Personally, I think individuals are the "protected class" for the equal protection clause. And the reason the 19th amendment was necessary is because it overturned a SPECIFIC constitutional provision that gave the franchise exclusively to men. Is there a specific constitutional provision that limits marriage to opposite-sex couples?
Then again, I didn’t go to law school so that "plain meaning" could be transformed from something comprehensible to any well-educated person into something only comprehensible to a class of self-appointed mandarins. Then again, since I was well-informed enough about legal theory to avoid appealing to “substantive due process”, perhaps you are making some unwarranted assumptions about what I do and do not know.
So I will unfortunately have to decline your directive to “refrain” from making statements that you don’t like. I believe the plain meaning of the First Amendment gives me that right also, though I’m probably running afoul of some other obscurest dogma there as well.
Bottom line: There doesn’t seem a “rational basis” for the law anyway, at least not unless the “ick factor” is a “rational basis”. Because one does not need to view very many anti-gay marriage protests for very much time at all to notice that that is exactly what constitutes the entire foundation of the anti-gay marriage movement.
Note that the California Supreme Court did not cite the equal protection clause (or any other part fo the Federal Constitution). This was a decision strictly on the requirements of the California Constitution. Note also that the reasoning was essentially identical to that in Perez v. Sharpe — where, in 1948, the California Supreme Court ruled that the state could not ban interracial marriages. Just to make the parallel clear, Perez got cited several times.
This is what happens when you have conservative, non-activist, judges: they view the law strictly based on the constitution and precedent. Which doesn’t, obviously, guarantee that they will reach conclusions that conservatives like.
If it’s about individuals, then you have no problem with the rationale of, say, Gore v. Bush? Okay.
As for the California Constitutional interpretion, this has been a well-rehearsed litigation tactic in Massachusetts and New Jersey- taking it out of the realm of the US Constitution and SCOTUS review (presumably). Here’s a radical thought- how about the legislature determining whether they want same sex marriage?
"Because one does not need to view very many anti-gay marriage protests for very much time at all to notice that that is exactly what constitutes the entire foundation of the anti-gay marriage movement."
Oh I just punched the air. More straight-talk like this is needed at PG.
Sure, Kreiz. Let’s also have the legislatures decide which groups get free speech and which do not and whether Muslims should be exempt from the 4th Amendment after 9/11 too.
"Here’s a radical thought- how about the legislature determining whether they want same sex marriage? "
They shouldn’t decide what the churches in their state can and can’t do. If gays can’t get married in church (because the bible goes ix-nay) then women can’t get married to guys with long hair (because the bible nixes that too).
So unless these poor, down-trodden and side-stepped John and Jane Q’s (or anti-Queers?) show me a constructed essay as to why gays getting married make them feel pushed by the ivory tower, above-street-level balhdeblah elites but guys with pony-tails are A-OK they can stay at home and feel indiganted for all I care. This is above them. This is about forcing a new generation of Americans to get as used to and comfortable with gays as they are to blacks, and let those who seek to keep gays as shibboleths or kooky in the eyes of their young go and die by natural causes. Blacks doing what whites did to higher degrees, even if it caused friction with sub-average Joe and Jane, was a vital step in freeing the US from the crippling race problems.
This is the new civil rights movement,and it has less temerity, arrogance or bold demands than any of those that just want to stall or obstruct it. Kindly move out of its way.
It’s not about a new civil rights movement, utsu. It’s about the integrity of our judiciary, and allowing the least democratic branch of our government, unelected lifetime-appointed judges, to decide the major social issues of our day. I don’t want this any more than I want a panel of 5 to hold that a fetus is a ‘person’ entitled to equal protection. At that point, courts are simply mini-super legislatures. It’s absurd. Gore v. Bush demonstrated this trend. In Gore, a narrow majority applied the equal protection claus to voting procedures in spite of the fact that, historically, they had declined to do so. Then they limited the decision to its facts. This kind of intellectual dishonesty should be abhorred by everyone, liberal and conservative alike.
Jason at 7- free speech is expressly constitutionally protected in the First. Good try, though. And you can see by the backlash after 9/11 how much repression occurred against Muslims… none.
Sorry to disappoint, but Stubborn Facts reports that the people of California may have the last say:
"A group called Protect Marriage has already submitted the necessary paperwork to the CA Secretary of State to get a voter initiative on the next ballot that would define marriage as between one man and one woman in the California Constitution (essentially the only way to overturn the CA Supreme Court ruling)."
I’m sure all commenters here will applaud the right of the people to choose their own destinies through a free ballot. Ultimately, that’s where the power should reside, no matter what the result.
Interesting view, Kreiz. Would you also endorse a voter initiative that sought to remove all 4th amendment protections from Muslims?
After all, the people should have final say, right? “No matter what the result.”
Sorry, but I see your view as nothing less than empowering bigotry under cover of populism. It is detestable to its core and you should be embarrassed for advocating it publicly.
Another noble but misplaced try, Jason, as freedom of religion is expressly protected under the First. No problem there. The problem is in judicial fiat in unexpressed constitutional areas. I’m pro abortion and pro civil union- but view Roe as poor decision-making. At some point, the integrity of our constitutional system breaks down if the judiciary’s role becomes an unassailable super-legislature. It’s an anathema to the way our system was framed.
"I’m sure all commenters here will applaud the right of the people to choose their own destinies through a free ballot. Ultimately, that’s where the power should reside, no matter what the result"
If reason went to the majority, the destiny of minorities succumb not to choice but to a majority. Attitude alone did not change past discriminatory practices of our nation, the law did against the majority of wills. And as far as public policy goes, I didn’t see a ballet for the American people to vote on; abortion, the war in Iraq, stem cell research, capital punishment, hate crime legislation, free trade etc. Shrugs shoulders…maybe I am missing the point of homosexual marriage being the one of only controversial issue being brought to the public by ballet for a vote ‘by the people’. Maybe federal and state issues should convene by the wills of the majority period by vote in the same way homosexual marriage will be decided by the majority in the future.