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Do Gays Need a Court Win For Equality?

June 29th, 2011 at 8:26 am | 40 Comments |

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New York is now the sixth and most populous state to legalize same-sex marriage. Last Friday night was the first time that a Republican-controlled legislative chamber voted a marriage bill into law, with the GOP providing the margin of victory. Since the New York vote demonstrated that a GOP legislature can be made to support same-sex marriage, is getting the Supreme Court decision to rule in favor of gay marriage – as proposed by Theodore Olson and David Boies – still necessary? Gay conservatives are divided on the issue.

Some same-sex marriage advocates say that gay marriage will take the path of Loving v. Virginia, the Supreme Court case which allowed interracial marriage, calling it a constitutional right. The American Foundation for Equal Rights is funding the Olson and Boies lawsuit and it’s founder, Evan Wolfson, told FrumForum that no one should have to wait to marry, which is why he advocates a Supreme Court ruling to allow it nationwide:

“Every day couples are excluded from marriage is a real injury and injustice to them and their loved ones, and constitutional freedoms such as the freedom to marry should not depend on, or await, majority permission,” he said.

Clark Cooper, executive director of Log Cabin Republicans, said working through the legislative process could take many more years – so the legal strategy pursued by Olson and Boies is “a valid and important part of the fight for the equality enshrined in our Constitution.”

The Loving v. Virginia Supreme Court ruling of 1967 ended race-based legal restrictions on marriage. Cooper says same-sex marriage will follow the same path, emerging in all three branches of government.

“While it is always possible to achieve legislative change in any state, the realistic timeline for doing so in every state without judicial intervention is likely beyond most of our lifetimes,” he told FrumForum. “Sodomy laws were still on the books in several states as recently as 2003 – until they were ruled unconstitutional in the Lawrence v. Texas Supreme Court ruling.”

However, executive director of GOProud Jimmy LaSalvia said that while he supports the legalization of same-sex marriage, it is not a federal issue and should remain in the hands of state legislators. Not only would this more directly express the will of the people, but it would be more effective at becoming widely accepted.

“The federal government should stay out of the issue,” he told FrumForum. “What’s happening is appropriate – that the states are deciding this issue. Certainly, a federal marriage amendment for the constitution would be the largest federal power grab of the states in history.

Advocates for a legal remedy to the same sex marriage issue will ultimately need to wrestle the the consequences of another landmark decision that came from the Supreme Court: Roe v. Wade, the controversial decision which legalized abortion. Some feminists and pro-choice advocates have argued that winning that right through a sweeping court decision has not been helpful in the long term.

However, since the struggle for marriage equality is now arguably a civil rights struggle, some argue that the only proper redress is through the courts. David Boise’s spokesperson told FrumForum:

The point of constitutionally protected rights is that they are not subject to popular vote.  Gay and lesbian individuals should not have to plead with their elected officials or their fellow citizens to recognize the fundamental rights that are guaranteed to them by the Constitution.  But in most states in this country, gay and lesbian couples, unlike heterosexual couples, are still denied the fundamental right to marry.

Recent Posts by Nicole Glass



40 Comments so far ↓

  • sinz54

    Boies’ spokesperson: “The point of constitutionally protected rights is that they are not subject to popular vote. ”

    If same-sex marriage is a “constitutionally protected right,” how did that escape the notice of virtually every jurist in America prior to 1960?

    Even before the civil rights marches of the 1960s, there were many jurists who had insisted that black equality was a constitutional right. And even in the 1920s, the FBI went after the Ku Klux Klan for violating those rights.

    But I’ve never heard of any such stream of legal opinion in the entire history of the United States about same-sex marriage being a constitutional right.

    So was this right somehow discovered, or is it being invented?

    • sparse

      if you go back further you will find that equality for african americans was also discovered. the 13th-15th amendments together invented this right. the jurists you cite, who “insisted that black equality was a constitutional right” were correct, it was just an unpopular stance at the time.

      later, we invented rights for women to vote too.

    • medinnus

      Some states in the South have the marriage age as low as 14 with parental consent, for when their darling special snowflake gets knocked up.

      As mankind evolves, so does their perception of the law. Sorry, you old-fashioned White-Males-Only-Have-Rights types; other races have rights too. And the 02% of the population which happens to be gay/lesbian are not subhuman, your contentions notwithstanding. Granted, I view marriage as a religious sacrament, and feel that the government should ONLY issue civil unions – let churches perform marraiges as they see fit, but let them have no legal standing without the civil union certification also – but the religious bigots (amazing how often the White Supremists are also Christianist bigots…) would shit themselves silly if anything logical like that was proposed.

      So those of you who can’t deal with the fact that minorities and homosexuals are finally beating back your prejudices in the legal fields? I hope it burns you like hellfire.

    • jeffmyalor

      No one was agitating for gay rights in this manner prior to 1960, but pre-1960s America was still largely under the control of White Gentiles – especially the culture. Thankfully, they were pushed aside and our deconstruction of their culture has since accelerated. If any of them dare stand up for their dying culture, we have a multitude of mechanisms to destroy any resistance. Soon, the SPLC will become more active in countering any “anti-gay” activity and targeting individuals who resist us, and the passage of Hate Crimes legislation will be the final nail in the coffin in White Gentile culture.

      We will have our vengeance against them. We will have achieved total victory over them.

  • eugibs

    Sparse,

    Both bad examples. Both slavery and gender disenfranchisement were ended with constitutional amendments- not the invention of new rights based on the original text by unelected judges.

  • sparse

    if the us constitution, as it is written now, is found by the courts to protect gay marriage, then it should not be blocked, certainly not for strategic reasons. if X is a right conferred on individuals by the constitution, then it is wrong in every sense of the word to block the free exercise of X for any reason whatsoever.

    roe v wade was, as i understand it, a little sloppy and indirect. and it confers a right to privacy about private matters, not a clear unequivocal right to abortion. and it is an issue that a lot of people are still uncomfortable with for very understandable reasons. that’s why it is not a rock-solid legal underpinning. if, forty years from now, people are still uncomfortable with gay marriage, then it will continue to be resisted. just like the 14th amendment was resisted for a century. all these issues, whether decided by courts, individual states or constitutional amendment, they all follow the same arc, depending on how accepted they are by the people. don’t worry about strategy, worry about acceptance.

  • eugibs

    The rights you allude to were invented by super majorities of the states. Not nine “better angels” in robes

    • sparse

      eugibs-
      i guess you and i are worried about different things here. from my perspective, a law arrived at by any means, whether it be supermajorities of states, individual state legislatures, nine people in robes, just one person in a robe or the standard bill signed into law by the president, is ultimately underpinned by the constitution. and once sustained by any of these paths is just as much the law as any other. i do not distinguish how they got there. because laws do not come in different strengths, we do not get to pick and choose, and they all stem from the constitution.

      a constitutional amendment can be just as much an invention of new rights as an issue decided in the courts. after we passed prohibition, we discovered a right to drink. the main reason one issue needs to be done through amendment is if the constitution is either silent about it or precludes it (like how the 3/5ths clause precluded the idea that became the 14th amendment). otherwise, as we evolve, we apply precedent. but both are law.

  • Rabiner

    Eugibs:

    Actually it took the court to enact racial enfranchisement in the 1950s and 1960s with cases like Brown V Board of Education. So yes, the courts should be involved if the State Legislatures and Federal government will not provide equal constitutional rights to gay citizens. Just because it hasn’t happened yet doesn’t mean it shouldn’t happen. It just means it hasn’t yet happened.

  • eugibs

    Sparse- no one is saying that SCOTUS decisions are not the law of the land. They are, regardless of how wrongly decided. But process counts too. You talk about acceptance being critical to law. I agree. But acceptance, I believe, is largely the result of the losing side feeling they had fair process. SCOTUS decisions that have no Consitutional basis and are merely the result of judges becoming impatient with the political process, are particularly susceptible to claims of illegitimacy and a lack of widespread acceptance. Roe v. Wade was 40 years ago, and the fight is hotter than ever. In my opinion, a large part of the reason for that is how the law was imposed on the country.

    Rabiner- that situation was different. Brown was not a matter of inventing new rights never intended by the framers of the 14th Amendment. Nor was it about giving a strange or bizarre meaning to the text of the 14th Amendment. It was a matter of erroneous interpretation. Strong arguments can be made that the history and text support the holding of Brown.

  • abk1985

    I have no problem with same sex marriage in general because I don’t think anyone else’s marriage is my business. However, I do not understand how marriage is a “right.”

    The issue with Loving was not merely that a cross-racial marriage was not recognized in Virginia, it was that interracial sex was a crime. Homosexual sex is not a crime, or, more accurately, non-standard copulation is not a crime, since Lawrence (2003.)

    In the case of Loving, the justification for the sexual relations of that couple was that they were married, that is, marriage justified the sexual relations, if they were not married, the sexual relations were criminal. Nobody thinks that way anymore.

    • blueshark

      @abk1985

      You wrote:

      “The issue with Loving was not merely that a cross-racial marriage was not recognized in Virginia, it was that interracial sex was a crime.”

      Actually, that is not true. You mischaracterize the facts of Loving. It was not that interracial marriage was merely not recognized in Virginia, as you characterize it, but, rather, interracial marriage was statutorily prohibited as a felony and carried with it a criminal penalty. The specific crimes that the Lovings were convicted of was going out of state to be married in violation of Virginia’s statutory prohibition against interracial marriage and returning to Virgina and cohabiting as man and wife. According to the Supreme Court:

      “The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating s 20-58 of the Virginia Code:

      ‘Leaving State to evade law.-If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in s 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.’

      Section 20-59, which defines the penalty for miscegenation, provides:

      ‘Punishment for marriage.-If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.’

      Loving v. Virgina, 388 U.S. 1, 2 (1967). Consequently, the Virginia statute in question forbade interracial marriage, not merely sex, and imposed criminal penalties on such marriages.

      More importantly, in the same case, the Supreme Court explicitly recognized that marriage is a “basic civil right” under the constitution:

      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. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.

      Loving, 388 U.S. at 12. Consequently marriage is a right. You should check your facts before you assert them. You may not accept that marriage is a “right” but the Supreme Court has. In a legal context, their opinion is as everything and yours carries no weight

  • Frumplestiltskin

    eugibs, um….ever hear of the emancipation proclamation? Granted it did not free all the slaves political considerations stopped him (since 4 slave states did not secede he did not free those slaves), but it is undeniable that it was Lincoln and not the court that effectively ended Slavery.

    “while he supports the legalization of same-sex marriage, it is not a federal issue and should remain in the hands of state legislators.” So states can impose new restrictions of opposite sex unions as well? Can NJ declare that 22 is the legal age for marriage and that it does not recognize marriages of people younger than that from other states?

    • pnwguy

      Frump:

      Can NJ declare that 22 is the legal age for marriage and that it does not recognize marriages of people younger than that from other states?

      Possibly. What if West Virginia changed their marriage laws to allow 12 year old children to marry. After all, puberty starts around that age. Would other states have to honor as married a couple of 12 year olds who then move to their state?

      As for Eugibs –

      Roe v. Wade was 40 years ago, and the fight is hotter than ever. In my opinion, a large part of the reason for that is how the law was imposed on the country.

      I’m sure there are *some* who are bothered by the process. But I’d say 90% find this to be a religious issue first and foremost, and that opposition only weakens if the religious adherence or interpretation changes.

  • Around the Horn: 6.29.11 | Demablogue

    [...] Nicole Glass on whether gays need the courts to win marriage equality. [FrumForum] [...]

  • eugibs

    Frump – the EP was a wonderful gesture by Honest Abe. However it had no legal (or actual) effect on slavery in the Confederacy. If you want to argue it did, then why was the 13th Amendment created at all? Is it superfluous? And as to your NJ example, I believe the legislature should have the power to enact a law like that, as it falls squarely within its police powers. Just because a law is stupid or bad does not mean it should be unconstitutional. It is for the majority to decide all issues that it is not explicitly barred from deciding.

    Pnw- if states had been free to craft their own laws that reflected its own citizens deeply held beliefs on abortion, the issue would not be as nuclear as it is today. The judicial elimination of the possibility for compromise on the issue (less so in recent years) has fanned the flames of discontent.

  • Smargalicious

    It’s all part of the breakdown of society. Praising and promoting sexual deviancy and moral depravity means the end is near for our nation.

    • DifferentFrumer

      “It’s all part of the breakdown of society. Praising and promoting sexual deviancy and moral depravity means the end is near for our nation.”

      It’s a sign!, he says. Really, you should get a sign and join those other nuts cases from Westboro. Or that phony who predicted the end of the world for the second time this year.

  • medinnus

    *laughs*

    It must really bother you that homosexuals and blacks are treated as equals to your bigoted Christianist self.

    I hope it does. I hope it chews away at your soul that we have a black President, gays serving as heroes in the military (especially since cowards like you only shoot off their mouth, and not a shot fired in our nation’s defense). I hope it really keeps you up at night, anguished.

    The history of the world shows a slow slide from ignorance and stupidity towards a more enlightened humanity. Your kind are being shoveled to the dungheap of history, and I hope you suffer an equal amount as the blacks and the homosexuals have under your kind’s persecution.

    • Smargalicious

      Comparing race and sex discrimination to personal choice and morality is absurd.

      • medinnus

        *chuckles* You keep talking big, bigoted coward. Idle blather is all you seem good for.

        What’s absurd is that a creature such as yourself isn’t appointed a Court guardian and a muzzle; you are clearly deluded, and not competent.

        People don’t choose their sexuality; it chooses them. Only an idiot or a fool would believe otherwise – so you are clearly over-qualified, as you are both.

  • Graychin

    It took the courts to break the ice on racial equality. The people weren’t ready to take that “all men are created equal” stuff seriously in 1954.

    And so it is with gay rights. Give it a few more years, and gay rights will be fully endorsed by the majority. Polls show that it’s happening quickly.

    • Houndentenor

      We have two obstacles to gay rights. One party that panders to the religious right and another party that is a bunch of spineless cowards afraid to pass laws that the majority favor. Most Americans think it’s illegal to fire someone for being gay. It’s not in most states. Why can’t we get a law passed to make it illegal. Se the beginning of this paragraph. Public opinion is moving quickly on gay marriage. The more the religious right makes crazy claims about the adverse effects of letting those two women down the street who have lived together for 20 years go ahead and get married, the more people sympathize with their lesbian neighbors.

  • Frumplestiltskin

    pwnguy “What if West Virginia changed their marriage laws to allow 12 year old children to marry. After all, puberty starts around that age. Would other states have to honor as married a couple of 12 year olds who then move to their state?”

    Actually, yes. Remember Jerry Lee Lewis married his 13 year old cousin and he went around America with her in tow. It hurt his career big time, but he was married to her for 13 years.

  • Frumplestiltskin

    eugibs, actually the emancipation proclamation had a huge effect on slavery within the Confederacy, it gave legal standing for northern armies to free the slaves. 20,000 slaves were freed at once on Jan. 1, 1863. I think it had a real effect for them and by July, 1865 nearly all slaves had been freed. The 13th amendment simply codified, hell set in stone, reality, as if to state there is no going back.

  • sparse

    eugibs-

    i sense there is a shift in what is being discussed here. i will go back to the original issue first:

    you said ” Both slavery and gender disenfranchisement were ended with constitutional amendments- not the invention of new rights based on the original text by unelected judges.”

    my response to that was that the issues underlying the constitutional amendments you refer to were every bit as much “inventions” as a novel application of one aspect of law to a new issue, just like roe v. wade was. the fact that they are amendments reflects one of two realities- either the issue is very broadly favored by the people, or it changes the original constitution (and may or may not be controversial). amendments have the additional benefit of being incontrovertible. laws and legal precedent have to be evaluated in terms of them, not the other way around. but just because something is popular or uncontroversial does not mean it is not an “invention.”

    at some point, we “invented” corporations. totally made it up. today, we are still sorting out exactly what the extent of the invention means, but most of the broad outlines of what a corporation is and what rights it has relative to the rest of us is quite settled. i think that today’s controversy over the “inventing” of a right to equal treatment with regard to sexual orientation quite pales in comparison.

    (segue into the second point)the practical difference between a law decided through legislation (regular law or amendment) versus that decided through the courts is that a legislative law consists of only the words contained in the bill or amendment. a judicially-arrived-at law theoretically consists of all the words written in all the laws of the land and all the opinions written by all the judges to ever consider any of them. it takes a little longer to sort out what the great cloud of law we live in really means, and there is usually a substantial back and forth. but eventually there becomes a consensus, and over time, consensus hardens into stare decis.

    you said: “no one is saying that SCOTUS decisions are not the law of the land. They are, regardless of how wrongly decided. But process counts too. You talk about acceptance being critical to law. I agree. But acceptance, I believe, is largely the result of the losing side feeling they had fair process. SCOTUS decisions that have no Consitutional basis and are merely the result of judges becoming impatient with the political process, are particularly susceptible to claims of illegitimacy and a lack of widespread acceptance. Roe v. Wade was 40 years ago, and the fight is hotter than ever. In my opinion, a large part of the reason for that is how the law was imposed on the country.”

    here i think you veer off into some dangerous territory. scotus decisions are, as you agree, the law of the land. but they are not ever ever ever wrongly decided. the constitution dictates how the supreme court functions, its members are duly empanelled. whatever they decide, be it dredd scott, roe v. wade or citizens united is by definition right, correct, proper, legal and all that. “SCOTUS decisions that have no Consitutional basis” do not exist. that is an oxymoron.

    to challenge the legitimacy of the supreme court is to challenge the legitimacy of the constitution. you need not agree with or like the conclusions they arrive at, but those decisions are no more “imposed on the country” than was the bill of rights. those decisions spring directly and legitimately from the very dna of our nation’s laws. this is our system, love it or leave it.

    “popular acceptance” is not a branch of government. the founders gave us the vote instead. our job is to obey the law, if we don’t like something, we vote for people who will write better ones. there’s your fair process.

  • Nanotek

    “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.”

    funny how the same anti-equality conservatives who spout “strict constructionism” as an interpretive enterprise run from a strict construction of the words in Sec. 1, 14th Amendment.

    • sweatyb

      come now, “strict constructionism” has meant “interpreted in a way that agrees with my personal opinions” for decades

  • sweatyb

    This talk about a right being discovered or invented is a strawman, put up to avoid acknowledging that the whole resistance to gay marriage is about loathing private, consensual and healthy homosexual behavior. It makes you uncomfortable to think about gay people having sex.

    Unfortunately for you, there’s no basis in the Constitution to discriminate against an arbitrary group because they’re icky. Just the opposite. So to say that you can’t find one legal opinion about this in the history of the country is just being willfully ignorant.

    From the perspective of the state, gay or straight is a completely artificial distinction. From the perspective of the Constitution (even state constitutions — excepting those that have been amended recently) there’s no such thing as a gay or straight citizen.

    Clearly, as with marriage, rules can be defined to prohibit activities by certain groups based on nothing but majority opinion. I could say that people under 5 feet tall should not be allowed kiss people over 6 feet tall. Or left-handed people are not allowed to drive forklifts. Or people with big ears are not allowed to wear hats. Or bald people are not allowed to eat onions.

    I, personally, can hold those views. But there’s no justification for our government to try to enforce rules to that effect.

    • abk1985

      From the perspective of the state, gay or straight is a completely artificial distinction.

      I think the distinction between gay and straight is also artificial.

  • think4yourself

    It’s a good article because it highlights opposing views in the gay community.

    Another article on this forum made the point that even though New York has now agreed to allow same sex marriages, gay married couples still do not have the same rights as hetero couples on a national level, ie tax benefits, pension benefits, etc. Seems to me that because their are Federal ramifications, you need a Federal response at least regarding the Federal issues. Since I don’t see how you can say that a gay couple can be treated as married on their Federal tax return in New York, but not in Virginia, it would need to be a national standard.

  • Diomedes

    I think the crux of the problem is the fact that marriage should never have been an instutition that the government got involved with. That is what is leading to so many issues.

    The word ‘marriage’ is used in the legal forms provided by the government for licenses. If it was removed, then everyone would just have a ‘union’ in the eyes of the government.

    This follows with the normal paradigm of marriages ceremonies generally taking place separate of the actual document filing. The two are mutually distinct.

    If the government merely just changed its documentation process to recognize everything as a union, for tax purposes and such, then its up to the churches and whatever agency one wishes to use for the ‘marriage’ part. That would probably solve the controversy for the most part. You get a union license from the government. And then you get married wherever.

  • eugibs

    Sparse –

    You really see no difference at all between a duly elected state legislature, with representatives accountable to the people every 2-4 years “inventing” something new in the law and nine life-tenured, unelected judges doing the same thing? You also see no difference between the state legislatures of 3/4 of the states ratifying the “invention” of something new and the aforementioned SCOTUS doing the same thing? I agree that the result is the same. Whether derived by legislature, amendment, or court decision, the outcome is the law of the land. However, as I said above, the process by which the law is created is quite different.

    I’m not going to offer the often-sited platitude that a judge’s role is to interpret the law, rather than to make the law. I believe that is too much of a simplification. From time to time, it is appropriate and necessary for judges to fill in the gaps in the law as legislatures often times abdicate their responsibilities in the hopes the judges will step in and take care of controversial subjects. However, that does not mean the role of a judge and a legislator is the same. Legislators, being accountable to the people, should feel free to act boldly in addressing the wrongs of society. However, judges I believe, in order to retain their legitimacy in the eyes of the public, must be far more guarded, as people could quickly become intolerant of judges whom they don’t have the opportunity to vote for stepping in and fundamentally changing their lives. To me, that means firmly rooting opinions in legal precedent, constitutional text, and history. It is not the appropriate role of the unelected branch of government to radically change American society on the fly, and to do so by justifying opinions on nothing more than the “evolving” views of society, which often times are objectively unascertainable and instead reflect nothing more than the judge’s own value judgments. I don’t have to believe it is sinister or illegitimate to believe it is wrong.

    You say the process available to the disgruntled citizen is to elect new people to change the law, but that is not a remedy available when the law is created by the Supreme Court. The only check on the Supreme Court is its own self-restraint. My position is that the Court should not delve into areas where it has no clear Constitutional mandate to be in the first place, and when it does, it is fair game for criticism. I do not believe that I criticize the genius of the Constitution itself or the Court as a legitimate institution when I offer these criticisms. I only call into question those who give into the temptation to act when they should not.

  • Frumplestiltskin

    The only check on the Supreme Court is its own self-restraint.

    No, there are checks, one is impeachment and the other is the Amendment process. Another check is time. Congress and the WH can affect the makeup of the court. You seem stuck on basically Roe V. Wade somehow invalidating all other times the Court made unpopular decisions.

    Brown Vs. Board of education was very unpopular at the time but is accepted now by the overwhelming majority of Americans. Do you really think we should have gone the amendment process? That fundamentally changed the lives of millions of people in the south. Were they wrong to do it.

    In any event, it might interest people to know that Mexico City has gay marriage and the Mexican Supreme Court, using a similar full faith and credit clause in their own Constitution, stated it must be recognized in every state.

    • Nanotek

      “In any event, it might interest people to know that Mexico City has gay marriage and the Mexican Supreme Court, using a similar full faith and credit clause in their own Constitution, stated it must be recognized in every state.”

      thanks … wasn’t aware

  • eugibs

    Frump

    As I said earlier, Brown is different. Brown is based on the Equal Protection Clause of the 14th Amendment, which was specifically passed to protect the equal rights of African Americans. You took one line out of what I said. But what about this line?
    My position is that the Court should not delve into areas where it has no clear Constitutional mandate to be in the first place

    The Court had a clear mandate to say what the law was in the area of equal protection with regards to public school accommodations. Why did it have that mandate? Because a Constitutional Amendment was passed that invited the Court into that matter.

    You also seem to be misunderstanding my overall point. I am not saying that the Court should not rule on controversial subjects or take unpopular positions. I am saying that it should exercise self-restraint and, given its unique position as the only unelected branch of government, it should defer to the elected branches on all matters where it has not been given the affirmative duty to act. This is not a new or radical position to take. It is one that I have largely adopted from FDR’s great Supreme Court pick, Justice Felix Frankfurter. A man far more intelligent than any of us who found no logical contradiction to being a judicial minimalist and deferring to the elected branches on nearly all matters, while at the same time voting down the “separate but equal” doctrine in Brown.

  • Diomedes

    “As I said earlier, Brown is different. Brown is based on the Equal Protection Clause of the 14th Amendment, which was specifically passed to protect the equal rights of African Americans”

    I think what eugibs is alluding to is that the Supreme Court should only be addressing issues that pertain directly to specific articles in the consitution. And that fundamental changes should be handled by Congress in the form of additional amendments. Point taken although I think the argument states that the one could alude to the Freedom of Speech or Freedom of Expression aspects of the 1st Amendment as being valid as well in this case.

    Keep in mind that the constitution says nothing about marriage in and of itself. The issue became more relevant when the right attempted to actually introduce legislation that specifically prohibited one type of marriage and make that an amendment. And if I recall, the Bill of Rights as a whole is designed to ensure that one class of people does not in any way have their rights infringed upon by another class of people simply because the former is in the minority.

  • Nanotek

    “However, executive director of GOProud Jimmy LaSalvia said that while he supports the legalization of same-sex marriage, it is not a federal issue and should remain in the hands of state legislators. Not only would this more directly express the will of the people, but it would be more effective at becoming widely accepted.”

    GOProud is making farcical arguments …

    marriage is considered an individual’s fundamental federal right under long-standing SCOTUS rulings and the 14th Amendment’s promise of equal protection of the laws is a federal right, as well … federal rights are not appropriately overridden under the guise of a state’s customary role in licensing couples … just as states had to stop outlawing marriages between people of different “races” because marriage is a fundamental federal right and the right to not be discriminated against based on race is a fundamental federal right

  • Frumplestiltskin

    Diomedes, I have no problems with judicial self restraint. I just don’t see our Supreme Court viewing DOMA as unconstitutional would be judicial activism. Article 4 Section 1 addresses the duties that states within the United States to respect the “public acts, records, and judicial proceedings of every other state.”
    If Jerry Lee Lewis could have gone anywhere in the states with his 13 year old bride and have it be fully recognized, then why can’t two adult gay men do the same. Hell, just this past week we had that 51 year old Lost actor marry a 16 year old.

    In Mexico it was 8-2 with one justice absent to affirm gay marriage. So that means Canada and Mexico have gay marriage, but not the US.

  • sparse

    eugibs-
    you make really good points, but if i could point to one single weakness in your thinking, it would be this: the judicial is a co-equal branch of government, and you seem to want them to be second class. the framers chose a complex system of tenures- house very short, president longer, senate longer, supremes longest- because they saw that legislatures too often produce really intemperate laws that only a person not worried about political winds can really address. courts are a check on mob rule, and have proven the value of this function perfectly in the times judges have stood up to protect minorities.

    i think frumples has described the checks and balances issue well, i would only add that time is another check on the supreme court. generations can pass, and they can see things differently. plessy v furguson held that the 14th amendment allowed separate but equal. 60 yrs later brown v board of education overturned plessy (it was not a straight line reading from 14th). what changed? the composition of the court, and society. not the laws passed by legislature. there is the value of the courts.

    i get it that you call for minimalism, and i think that is perfectly reasonable as far as it goes. most judges, i think, take their role as basically that. but to try to restrict judges to ” firmly rooting opinions in legal precedent, constitutional text, and history” ignores the simple fact that all that precedent, history and case law was judged by another individual who was asking “what is the right thing to do here?” judges as far back as solomon have had to do that, and contemporary judges certainly should have the same tools in their toolbox.

    the constitution is very vague when it comes to the judiciary. there is not much clear constitutional mandate to speak of, really. but the equal nature of the judiciary, and the fact that they are insulated from popular outrage serve a very valuable purpose, one that outweighs the problems it produces. further, all the cries of judicial activism seem to come from left and right and correspond, generally, more with someone’s ox getting gored rather than any real malfeasance on the part of judges.

    you asked if i see no difference between “inventions” passed by legislatures and those from scotus. the short answer is no. the reason i don’t is because they both operate within one system. all the ways we have of producing laws are equally valid because they all respect the rule of law and they all tend to complement each other, and are checked by each other and are ultimately answerable to the people. so instead of seeing legislative and judicial products, i see products of our system.

    if this were a constitutional monarchy like england a few hundred years ago, and laws could be passed either by legislature (with the king’s approval) or just by edict of the king, i would not see those as the same thing. but that situation is not our situation.

    the slightly longer version of the answer would hold that scotus cannot invent anything. they can only take existing laws and see how to apply them. they cannot propose new rules, only legislatures can do that. the most they can do is to create a new synthesis of existing ideas. what happens if a judge does try to invent something new? they get overturned. or not promoted, or not confirmed for a higher bench. if they are a supreme, then their mistake stands, like dredd scott did for a long long time, but eventually those mistakes get fixed.

    so, to sum it all up (i did ramble a bit), the judiciary is a co-equal branch of government, that serves a very valuable purpose that outweighs its drawbacks, and the judiciary has always been empowered to set its own standards and i see no reason to change that now. to criticize judges and the decisions they make is imminently fair, and in fact is helpful to the process. but i would advise, for what it’s worth. stopping short of describing their work as illegitimate or unconstitutional when you disagree with it. respect for the system established by the constitution should not be conditional.