Quick, Someone Call Tom DeLay:
Judge Joseph Bataillon, a Clinton appointee to the U.S. District Court for the District of Nebraska, today issued a 43-page opinion in Citizens for Equal Protection v. Bruning striking down a 2000 amendment to the Nebraska Constitution limiting marriage under Nebraska state law to opposite sex relationships. As far as I know, this is the first judicial opinion holding that a state ban on same-sex marriage violates the federal constitution. Prior opinions have focused on whether state statutes violated state constitutions.
As best I can tell from a very quick scan of the opinion, Judge Bataillon's opinion holds that the Nebraska ban on same-sex marriage violated a slew of constitutional doctrines. Those doctrines include: 1) "the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution, 2)"the right to petition the government for redress of grievances, which encompasses the right to participate in the political process," 3) equal protection the laws pursuant to Romer v. Evans, and 4) the prohibition against Bills of Attainder under Article I, Section 9. Notably, there is hardly any mention in the opinion of Lawrence v. Texas.
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As best I can tell from a very quick scan of the opinion, Judge Bataillon's opinion holds that the Nebraska ban on same-sex marriage violated a slew of constitutional doctrines. Those doctrines include: 1) "the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution, 2)"the right to petition the government for redress of grievances, which encompasses the right to participate in the political process," 3) equal protection the laws pursuant to Romer v. Evans, and 4) the prohibition against Bills of Attainder under Article I, Section 9. Notably, there is hardly any mention in the opinion of Lawrence v. Texas.
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Related Posts (on one page):
- Federal Court Strikes Down Ban on Same-Sex Marriage:
- Quick, Someone Call Tom DeLay:
The court did NOT say that a state cannot define marriage as "between a man and a woman." The court also did not say that a state is required to provide any particular benefits to a same-sex couple, unless it chooses to pass such a law.
But what Romer said, and today's decision echoed, is that a state may not pass a constitutional amendment removing the INCIDENTS of marriage from the legislative purview forevermore, because it infringes upon First Amendment rights to associate and to petition the government. In other words, a state may not tell a class of its citizens, "Sorry, everyone else is free to petition the Legislature if they want a bill passed in their favor, but YOU will have to get a constitutional amendment passed if you want any kind of protection."
There are clearly arguments against the decision in Romer; see Justice Scalia's dissent for some typically well-articulated ones. But it's the law of the land, and I really don't see a way today's court could have reached any other result in light of Romer. The only thorny issue is that, because the court ruled the Nebraska amendment is not severable, the voters must go back to the drawing board and pass an amendment defining marriage as between a man and a woman, without the additional language that got it struck down.
As to the others well, hey whatever Bataillon wants to say a bill of attainder is I mean, hey he's the judge, but I'm a skeptic.
A small point, but Professor Volokh didn't write this post, or comment in this thread (so far).
As to "bill of attainder" and "chilling effect", it appears the judge has no comprehension of what either term has meant in legal parlance for the last two centuries.
I believe Eugene Volokh's analysis is correct in all particulars.
If you're trying to get a reluctant public to accept gay marriage and forestall a federal constitutional amendment banning gay marriage, the absolute worst way to do it is to have a federal judge strike down a state constitutional amendment that garnered the support of some 80% of the voting public.
Judge Bataillon just made a prophet of Tom DeLay.
For example, suppose that a gay couple who cohabit prepare a contract stipulating that their personal property will be divided equally regardless of source, in the event that they break up. This sure sounds like a domestic partnership to me, and hence would be void. Indeed, any Marvin-like contract would be void. Likewise, I suspect that an certification of a relationship for the purpose of obtaining health insurance benefits for a cohabiting partner would be void under this rule.
Suppose two people who cohabit designate each other as agents for each other under durable powers of attorney for property and for health care, name each other as primary beneficiaries under each others wills, provide in their wills that any child of either will receive an equal share as a residuary beneficiary, and name the other person as a primary beneficiary under retirement plan and life insurance policies. Is that similar to? If the couple breaks up, it is essentially identical in effect. What if the couple also mutually change their surname to a new common surname which they also endow upon each of their respective children? Would a judge violate the law by allowing such a name change?
How about an agreement between unmarried cohabitants to share domestic expenses equally? Isn't that a domestic partnership?
Suppose a state hospital allows couples who were same sex married in Massachussets or civil unioned in Vermont to visit each other without further documentation? Is the state hospital in violation of the law?
As the trial court finds, this provision is read broadly in the state, so these aren't idle hypotheticals.
Now, is this a Romer case? Probably not. Romer was about the political process, not substantive law.
Is it an equal protection case? As to the outright marriage portion I don't think that it is, but as to the union, partnership or similar to provision, there is a good argument that it is an equal protection case on a rational basis. After all, if there isn't a rational basis to distinguish between hetrosexual sex and homosexual sex, of consenting adults, per Lawrence, (or between married and unmarried person's access to birth control), then it is hard to see that there is a rational basis from contractually entering into an agreement with each other regarding property and other civil incidents of their relationship -- the greater would seem to imply the lesser.
What the people who passed the law undoubtedly meant to do with to prevent people from having a special "legal status" towards each other with the impromptur of a government sanctification. But, it went farther in its language to include private consentual agreements in the nature of partnerships, and that has the potential to be a constitutional breach.
Indeed, wouldn't laws banning incest likewise violate the First Amendment? Or laws against allowing convicted felons to own guns, or vote also violate free expression. Et cetera, et cetera.
Bentham's felicitous phrase comes to mind: "Nonsense on stilts."
SMG
1. the 8th circuit sustains the opinion, on any grounds you chose, and the Supremes reverse;
2. the 8th circuit sustains the opinion, & the Supremes uphold; or
3. the 8th circuit reverses, and we get either 1 or 2 above, or the Supremes don't grant cert.
If the outcome is 2., the chances of the federal amendment passing will increase greatly, to the point of likelihood, or so it seems to me. But in any event, we will have another Roe v. Wade on our hands - and I'll bet the Supremes will be thinking just that. Plus, the Republicans will reap great political benefits.
If the outcome is 1. or 3., i.e., non-cert., the Supremes have in actuality or in effect said that they will not decree gay marriage - in which case the federal amendment loses steam. The likely outcome is that the question reverts to the states, which IMHO is the right venue for this question - and should have been for abortion as well.
So it seems to me that just maybe, the worst possible outcome for gay marriage advocates is, paradoxically, that they win all the way up to the Supremes.
In the meanwhile, the Republicans have just picked up more ammo for the nuclear option...
allowsrequires gay marriage then it alsoallowsrequires polygamous(sp?) marriage as well, correct?I believe Professor Kerr had similar thoughts about the Third Circuit's opinion in FAIR v. Rumsfeld.
Neat trick that. I rule the US Constitution as being un-constitutional.
Platonic guardians indeed, Judge Hand.
SMG
Opposite-sex marriage laws define a universe of potential spouses for Mr. Straight. The same laws define a universe of potential spouses for Mr. Gay. Other than a possible small number of cases due to consanguinity, the universes are absolutely identical. How can that be unconstitutional?
I advocate marriage. No one should live alone. No one should be forced to live alone. But I aked no one's permission to live with my wife, not even my father or her father. The incidental legal benefits that our marriage license provide are neither a sufficient nor necessary condition for our marriage. If we could not be "married", we would still find a way to live together. That is what makes me believe that same-sex marriage is, at best, only a colorable legal issue. It is really a social issue, about acceptance. Marriage is a social institution which exists because it works. Because it has proved that it works. Courts and legislatures should consider very carefully whether they are putting the cart before the horse, but so should advocates of same-sex marriage.
I loves this sophistry (which contrary to Eugene's excellent comments is similar to Romer's rationale): The state cannot ban gay marriage, but it doesn't have to allow it either. It must let--contrary to all logic and law--cities and counties decide for themselves.
I really don't get this logic. Sure, while technically correct, it's just a sophistry. Nobody really means it, do they? The state cannot ban rape, but cites and counties don't have to make it legal. The state cannot criminalize marijuana, but cities and counties don't have to allow marijuana use. Yes, REALLY persuasive. It's just bizarre logic that somehow, inexplicably, at the level of the state, as opposed to a city or county, there is some denial of a right to "petition" the government. The right to "petition" is still there and it would require the same process that banning gay marriage involved.
This argument amounts to some strange sort of mini, intrastate federalism. The state has no right to tell cities and counties what to do. Like I said, really persuasive. Whatever one's thoughts on gay marriage, or if the Constitution requires it, this is pure drivel.
. . .
In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
In order to have intimate relations, this judge believes the state must sanction those relations. I thought we wanted to get the government out of the bedrooms!?
Volokh says its the legitimate "government interest in promoting opposite-sex relationships". Come on... What a transparent bit of lawyering that is. This isn't promoting heterosexual marriage, it's banning gay relationships.
Can anyone here honestly tell me that ban isn't coming from pure animus against gays, and nothing else? That's a violation of Equal Protection, in my book.
Say, wonder how people are going to see Dems filibustering judges when they see this and realize EXACTLY what sort of judge Dems really want?
Let me see if you will buy this argument:
Encouraging homosexuals to enter into monogomous relationships with perks and penalties is beneficial to the state as a public health measure. I would also add that private dependent relationships are the first line of defense in eventualities requiring social insurance.
Since individuals choose their orientation as a private matter (not as this judge seems to think), the state is simply promoting coupling. By this logic we can exclude recognition of polygamy.
What really bothers me about these decisions is that they take away the citizen's referendum power on important issues. The decisions, much more than the laws they strike down, are fundamentally undemocratic in their effect and, I think, in their intention.
My bad--you were looking for a reason for not recognizing homosexual unions as a matter of state interest. That is different from banning homosexual relations (which is not done).
Your use of the word "ban" is confusing--apparently also for you.
BTW, the stongest argument for heterosexual marriage over homosexual unions as a matter of state interest is in the sustainability and diversity of the institution in relation to the nuturing of future generations and society. Simple.
The rules have been changed only for same gender couples and no others. That's what makes the "marriage protection" aspect of the decision so correct. If Nebraska wanted to protect marriage, why is it that the Nebraska amendment didn't prevent opposite sex couples from having domestic partnerships, civil unions and similar relationships? Doesn't it undermine marriage more when those people who can already get married, are allowed to form other, alternative relationships?
If Nebraska doesn't forbid cohabitation et al. for all couples, then does it have any genuine interest in protecting or promoting marriage? Or is that just a mask for gay-baiting?
From Susan's citation of Romer:
What is the constraint that prevents homosexuals from enjoying the safeguards of marriage? I see none. Nothing in the Nebraska amendment prevents homosexuals from taking part in marriage. The state does not query applicants for marriage licenses on their sexual preference.
Homosexuals in Nebraska are eligible to gain all the rights and privileges of marriage the same way everyone else does: by marrying a person of the opposite sex. If there is a constraint, it is the dissatisfaction of homosexuals with the range of potential partners the amendment gives them. Does this dissastisfaction rise to a violation of equal protection?
I am drawing closer to a conclusion: There are reasons for states to choose to sanction same-sex marriage, but they are questions of policy preference (requiring affirmative acts of legislators) rather than constitutional rights (resolvable in litigation). How wrong am I?
The "rules" are not being changed by the Nebraska amendment--that is the point of the amendment. Nor does the amendment provide for new arrangements for heterosexual couples.
Marriage and cohabitation are two different things. Cohabitation is not prohibited by the amendment--for any gender arrangement.
1. Section 29 does not erect a discriminatory barrier to advocacy of gay rights. It erects no barrier of any kind. Nothing in s 29 prohibits or burdens advocacy of gay rights. The section makes it very unlikely that such advocacy will succeed, certainly. Indeed it makes it impossible unless the advocacy is so successful that a constitutional amendment would result. But that is a very different thing from burdening advocacy. If merely making success unlikely amounts to an illegitimate "chill" on speech, then there is little government action that wouldn't amount to "chilling" someone's speech.
2. In particular, any constitutional prohibition would be a violation of free speech. Advocacy in favour of that prohibited act would be rendered ineffective and therefore (according to the judge's reasoning) unconstitutionally chilling. A constitutional prohibition on racial discrimination would violate the free speech and association rights of those who would advocate racial discrimination. To take an intentionlly trivial example, a constitutional prohibition on driving on the left side of the road would violate the free speech rights of naturalised Antipodeans. (Absent a constitutional amendment, we would be locked out of the political process; the reasoning is completely analogous). And that's about as absurd a reductio as you can get, surely?
3. Nothing in s 29 burdens the formation of associations advocating gay rights. The existence of the plaintiff organisations themselves demonstrate that: they are associations that advocate gay rights. These organisations haven't been banned, nor have they been burdened. And the state is under no obligation to ensure their fund-raising drives go smoothly.
4. The intimate association arguments fare no better. The section does not ban same sex relationships, nor does it unduly burden them. The judge is at pains to point out that the intimate associations protected by the First Amendment extend beyond married couples to a broad range of personal relationships, including cohabitation with relatives and relationships that involve non-family members. But this point undercuts the judge's argument. Why? Because many of these intimate associations are not accorded the same legal status as marriage. Are the rights of brothers, sisters, cousins, grandparents, to live together violated because they do not get the same taxation benefits etc as married couples? That strikes me as simply implausible.
5. Quick question: What would this judge say about a federal version of section 29? Would he interpret the prohibition as an amendment/limitation on the right of free association?
I honestly believe that same-sex couples should be allowed to form civil unions at the very least, and preferably get married. So this judgment disappoints me. I am afraid that putting forward arguments like this only lessen the credibility of those with whom I agree. Ironically, this judge may have just done more himself to hinder/chill/render ineffective gay rights advocacy than s29 ever would have.
Query: if the ACLU is a named plaintiff, and it did come before the supreme court, how could Ginsburg hear the case b/c didn't she used to be the chief counsel or something for the ACLU?
I also find it amusing when, like in Goodridge, our robed overlords explain to us that marriage as it has existed for the last 5,000 years (i.e., the union of one man and one woman for life to the exclusion of all others) is "irrational."
Banning marriage between a man and two women, or three men, or a man and two women, or two men and two women, is motivated only by animus against polygamists, right? Can you identify a rational basis for the ban against group marriages, if there is no rational basis for making marriage only between a man and a woman? (the canard about birth defects doesn't count, especially if we're talking about three people of the same sex getting married).
Lastly: This and Goodridge are proof positive that without a federal marriage amendment, gay marriage will be a reality in the United States in ten years. I don't want to have to amend the US constitution, but I have to play defense against the well-organized, well-funded forces using the courts to ram gay marriage down the throats of Americans, even if it means stealing the votes of 70% of the Nebraska citizens. Cultural conservatives didn't start this fight.
That is all.
As a non-lawyer, I have a question. How bizarre, novel and full of sophistries does a decision have to be before you go beyond reversing it to considering whether the judge who issued it should be impeached for incompetence?
What it DOES is prohibit the state from extending unique protections, privileges and benefits to certain (but not all) associations based on mutual homosexual attraction, on the perhaps unproven (but also not disproven) proposition that those protections etc. are designed to further the state's legitimate interest in encouraging associations that are best for the raising of the next generation.
How could this court square affirmative action by the state with the Constitution? After all, AA does not punish non-minority applicants for state contracts, slots in public law schools, etc. It merely gives an advantage to minority applicants based on the arguable proposition that the state has a legitimate interest in encouraging diversity. Whether or not AA is desirable or nice is not the point; the Courts have held if it is the citizen's choice (via the legislature) to implement it, then it is legal.
Obviously similar arguments hold with respect to the right of the citizens, if they choose, to withhold voting privileges indefinitely from felons, to withhold drivers licenses from people with x DUI convictions, or send people with 3 "strikes" up the river for life. These things may not strike a given judge as reasonable, effective or wise, but they are legal because the Constitution does not prohibit them.
With this, and the other logical inconsistencies pointed out above, it becomes very clear that the essential basis for this Court's decision -- and for the support of its supporters, vide supra -- is not legal but moral. This decision is indeed simply imposing morality de novo and ex cathedra from the bench. And that is exceedingly unconstitutional, not to mention alarming. It is not given to the judicial branch to originate moral choices in this nation. That function was explicitly reserved to the people by the Founders. And very wisely: any other choice boils down to Caesarism.
This is what happens when you sit above the people all day and are called Your Honor. You get a big head and forget we are a nation of laws, not men, or one man. You start to think the essential battle to establish the liberty and dignity of the black man was fought in the courtroom and not on the fields around Gettysburg. You sow the whirlwind and forget what wisdom says you shall reap.
My own state Washington, like many states, has a expanded version of the second amendment. Should it be struck down because it makes hit harder for gun control proponents to advocate for stricter gun control? Does Utah's constitutional ban on polygamy amount to a bill of attainder because it punishes polygamists because it is "intended to prohibit their political ability to effectuate changes opposed by the majority."?
The Judge should be impeached, and if it has a "chilling effect", then its about time. I've
neverseldom seen an opinion that so blatantly states "It's unconstitutional because I'm against it."I cannot take seriously the argument that Nebraska's Amendment is going to encourage gay people to enter into heterosexual marriages. Gay people are gay. They are not going to decide to become heteros (as if it was ever a choice) simply because of this asinine law.
Based upon this argument, it is of vital interest to the state in the diversity of the institution of marriage in relation to the nuturing of future generations and society that marriage between persons of the same political affiliation, religion, race, ethnicity or social class be prohibited in addition to the current ban on marriage between persons of the same sex.
Next attempt at a "rational" basis?
If, as suggestion the state's legitimate interest is promoting "the sustainability and diversity of the institution in relation to the nuturing of future generations and society," then a law prohibiting certain kinds of marriages works the exact opposite result since it decreases diversity within the institution. That cannot survive the rational basis test.
Consider: the state has legitimate interest in seeing to it that children receive an education. But a law abolishing public schools does not survive "rational basis" scrutiny based on a claim that the state is trying to ensure universal education. Yes, it's a law within the "ballpark" of education, but the law irrationally legislates in the opposite direction of its intended result.
The best attempt I've ever heard or read at defining a legitimate state interest in marriage particular to opposite-sex couples was in the case of Morrison v. Sadler from Indiana. That court reasoned that same-sex couples cannot "unintentionally" conceive through recreational sex, while opposite-sex couples can. So, extending the "benefits of marriage" to an opposite-sex couple will encourage that couple to "stay together" and jointly raise their child, to the child's and society's advantage. That's all well and good, and that probably is sufficient to justify having the legal institution of marriage in the first place.
But the question is not why have marriage at all, the question is why should it be denied to a particular class of people? Denying the benefits of marriage to same-sex couples is not logically related to advancing the state's claimed purpose of encouraging same-sex couples to jointly raise their unplanned children.
same-sexopposite-sex couples to jointly raise their unplanned children."So expect the "rational basis" defenses to fail, not because they're faulty on the substance, but because the outcome of the question is preordained. Like all the analyses in substantive due process, the entire process is a sham all designed to cover the political rulings of an Elitist Oligarchy. This is the Court system in America today.
The response by the public should be twofold: to destroy the institutional power of the judges either by amending the rules under which they operate or destroying the basis of their authority (various amendments removing lifetime tenure, or impeachment, or subponea of judges to explain themselves, etc, are possible), and further, to increasingly operate outside a corrupt court system by engaging in paticipatory democracy to solidify values and systems under constant assault from the bench (by enacting, say, a Marriage amendment to the constitution, etc.).
Judges are idiots if they think they can win this battle on the whim of their perceived ice-thin authority. I'm sure Louis XVI thought his royalty would go unquestioned forever too. But people don't take kindly to continued elitist abuse the intentionally and proudly flaunts the will of the people.
If not, why begin now? Particularly with district judges, whose ops are written to be reversed?
Please explain: How is a ban on gay marriages a "defense" of heterosexual marriages? If the gay couple next door gets married, does yours fall apart?
If you were really that intent on defending marriage, shouldn't you be banning divorce, criminalizing adultery, and the like?
I hope all the rest of you take a good look at the likes of your bedfellows.
Yawns....
So, I guess, the part of Utah's constitution which bans polygamy--and only polygamy--must go too. The constitution states, "polygamous or plural marriages are forever prohibited." I guess this needs to be struck down for the same reason....
I think I have had my take of sophistry.
If the Freedom of Intimate Association and the Right to Advocate combine to strike down State Constitutional Amendments (nevermind mere statutes), why exactly is this limited only to gay couples?
Even as a proponent of gay marriage in principle, seems to me that those who are supporting this particular judicial opinion are caught in a trap. Either, (a) they would have to declare that all sexual relationships are beyond the purview of the government, or (b) they would need to engage in some really dicey linedrawing exercises. If the State has no legitimate interest in promoting opposite-sex marriage under these grounds, you'd have to show some basis under which it has a legitimate interest in promoting one-to-one marriages, or non-consanguineous marriages between consenting relatives (particularly homosexual incestuous marriages which could result in no biological children), or only age of consent marriages.
Also, to Robert S., who wrote:
But the legislature doesn't own the country (or the states), and it never has.
Supposedly, under our majoritarian representative democratic system, it is the people who own the country (or the states) and their will as expressed through the legislature or through the Constitutional Amendment process. When courts "fill their anti-majoritarian roles", this is a really, really bad thing. It's only justified because the courts are acting (supposedly) to effectuate a larger, more primary majoritarian political will -- namely the Federal Constitution. That you see the role of the courts as "counterbalancing" the legislature, as if their job is to disagree with legislatures, is in itself a symptom of the larger problem we have with the judiciary.
Just because a (large) majority of Nebraskans think the amendment is good does not give that majority the right to impose the costs of its decision on a minority (gays who would like to marry, or at least receive the same benefits).
Actually, this is exactly what the majority has the right to do: impose costs of its decision on a minority. Ask any street pharmacist, tobacco company executive, or gun dealer.
...when the effect is to shift substantial costs and burdens to a minority whose interests are not represented by that legislative process.
I think there is a distinction to be made between "represented by legislative process" and "victorious in legislative process". Otherwise, every single law on the books needs to be overturned, including laws prohibiting murder, since the legislative process by which that activity was outlawed did not fully represent the murderers' political preferences.
-TS
I am in favor of ending no-fault divorce, and making adultery grounds for civil damages. Did I give the impression I was against those reforms? In any event, the answer to your first question is obvious: a ban on gay "marriage" defends traditional marriage because it recognizes what peoples across cultures and history have always known: that marriage is the union of a man and a woman. Gay "marriage" is a sham, however monogomous the gay couple may be, because marriage as an institution is broader than the mere act of fidelity to a person in sexual relations, or for certain legal benefits. It is an institution designed (not by government, but by society) for the channeling of male sexual agression and female need of a provider during pregnancy, and is the gateway to the institution of the family - which involves the proper raising of and role-models for children, and a default institution (though not the only one) for providing rights and legal instruments to hiers and sires, among other things. You need to read up on Locke, and forget about Rawls. The natural human social model is the family, and has been under all governments and across history. Family exists, whether you dictate other social compacts by government decree or not. And government therefore should have a role in supporting family for the betterment of society.
Finally, I'm not the first one to suggest a term limit on federal judges, a marriage amendment, or other institutional reforms of the bench. If you think that such ideas are wacky, then perhaps you're too wedded to the power of the Robed Elite.
You have the argument backwards. To deny a fundamental right, like the right to marry, whether it be to a person of a different race, a person that owes back child support, a person in prison, a person of the same sex, etc, there must be a compelling interest to deny the right not a compelling reason to recognize the right. In so far as strict scrutiny under the fundamental rights doctrine is concerned, same sex couples are not required to give reasons why they should be able to marry. The state and other proponents of denying the right must make the case of a compelling state interest against allowing same sex couples to marry. And once they have such a compelling interest, it must be shown that it is narrowly tailor to effectuate that interest.
As has been pointed out above, no one has so far presented so much as a rational basis, much less a compelling state interest, to deny the right to marry to same sex couples.
As for benefits, the Fundamentalist Christian Right wing incessantly complains about homosexual promiscuity and claims AIDS to be a gay disease spread by that promiscuity. Tell me, what's the incentive for same sex couples to form lasting bonds in monogamous relationships is the states are going to show overt hostility to them.
Let's look at a situation where we have two people of the same sex that have lived together for years in a house that they own together. They have an agreement whereas each has power of attorney for the other in case of emergency, both have wills and insurance policies where the other is the beneficiary, and have both provided that the other can make the arrangements in the event of death.
As Senario 1, if the two people of the same sex are heterosexual roommates, the state would likely not challenge the above described documents, and would face little if any difficulties in executing those documents in the event of the death or incapacitation of one of them. OTOH, in Senario 2, if the two people are a homosexual same sex couple, many states are stepping in and saying the documents are void as they are an approximation of marriage rights. The one partner could find him/herself completely blocked from visiting the other in the hospital, much less making the medical descisions. The state, by voiding the will as an invalid approximation of marriage can claim intestate succession to the person and force the sale of the home that the partner is entitled to under the will.
Ofcourse this is one of the reasons the judge struck down this poorly written Nebraska hate amendment. The people of Nebraska almost certainly did not intend for the amendment to apply to the couple in Senario 1 but did in Senario 2, in which case the amendment is invalid along the lines of the Supreme Court's emerging malicious intent doctrine of Romer v Evans and Cleburne v Cleburne Living Center as stated in O'Connor's Lawrence partial concurrence ("When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause"). If the amendment is read to apply to both Senarios above, you have Contract Clause and other issues. In Ohio, some judges, to salavage their hate amendment, have gone so far as to rule that the domestic abuse laws no longer apply to unmarried heterosexual couples because it recognizes a legal status "that intends to approximate the design, qualities, significance or effect of marriage." So if you beat up your live-in girlfriend the case is no longer a felony domestic violence charge, but just a misdemeanor assault.
Saint Francis of Assissi and the poet Khalil Gibran believed that "work is our love made manifest." If this is so, obviously there is as much a right to sex-based choice of partners in vocational as in any other intimate setting. Why should the constitution discriminate against Saint Francis of Assissi and Khalil Gibran's view of the meaning of love and intimacy? Where in the constitution say that those who are called to regard their vocations rather than their bedrooms as the place they choose to express the meaning and mysteries of their life, and who seek vocational partners in accordance with a sexual preference we acknowledge to be appropriate in intimate and important-to-life settings, should be punished merely because their idea of what is intimate, important, and meaningful in life isn't a judicially approved idea?
Not so long ago, people were arguing that marriage has always been known as "the union of a white man and a white woman."
"It is an institution designed (not by government, but by society) for the channeling of male sexual agression and female need of a provider during pregnancy, and is the gateway to the institution of the family - which involves the proper raising of and role-models for children, and a default institution (though not the only one) for providing rights and legal instruments to hiers and sires, among other things."
First of all, gay couples can raise children.
Second, many hetersexual couples don't. My wife and I have no intention of having kids, and we've made it impossible to do so via surgery. I'm also pretty sure it has nothing to do with my male aggression or her need for a "protector", because we have niether in our marriage.
So shouldn't such intentionally childless marriages be banned, by your logic?
But to point out the obvious, this isn't a case where the state "decides not to act"! Quite the opposite: The state affirmatively acted to ban or recognize gay marriages, even those from other states that recognized the legitimate state interest in supporting them.
The silliness of these arguments shows how transparent the motives are of those who support these laws. It's nothing more than a desire to impose one's own Judeo-Christian and/or bigoted values on others.
That people who call themselves "libertarians" would support such laws (and from a policy viewpoint, not just by constitutional logic) demonstrates what a meaningless label that has become for many who deploy it.
Personally, I have no problem with other people practicing polygamy, especially where it's their religious practice.
As far as incest, children, etc:
1) There are real, identifiable harms that result to third parties, e.g. the offspring of incestual relationships; no such harms exist in the case of a consensual homosexual marriage.
2) With children, there is the very obvious element of lack of consent.
If there's a First Amendment right of expressive association not to hire gay scoutmasters, and the First Amendment applies to non-political as well as political expression, isn't there a right not to have one's contract voided because you're gay?
But the First Amendment argument right that this denies the right to petition is so, so, so dumb.
As to children, you've got two 1982 cases, Globe Newspaper Co. v Superior Court and New York v. Ferber, that clearly recognize that "safeguarding the physical and psychological well-being of a minor is a compelling [state interest]" even when the restricts "operate[] in the sensitive area of constitutionally protected rights." It is a temporary restriction of a fundamental right to that is narrowly tailored to the interest and is removable by parental and/or judicial consent to marry depending upon the age and jurisdication.
As to consanguinity restrictions you have the interest in maintaining the already extant family structure. This goes well beyond just issues of potentiality of birth defects in children, which isn't an issue at all if one or both persons are beyond child bearing years. If a person can supplant his siblings in preeminence in the family order by marrying his widowed mother, it can cause problems. There are also issues around the potential to concentrate wealth in the family by not marrying outside the family. Also note its not necessary for the relationship to be by blood. Most states bar marriage to a person of close relation even if the relation is by adoption. The states, while alomst completely uniform in provisions of marrying an ancestor, descendant, aunt/uncle and nephew/neice, are quite diverse in their handling of cousins. In roughly half the states, marriage to a first cousins is permited. The other half prohibit it, but there are exceptions such as Arizona and Illinois allowing cousins incapable of procreating to marry. North Carolina allows cousins to marry, but only if they are not double first cousins (i.e. have only two sets of grandparents). A few states go so far as to bar marriage to a first cousin once removed. These issues have been litigated at the state level and are well established, but I know of no case that has reached the US Supreme Court specifically on these issues.
As for polygamy, there is U.S. v Reynolds. Though that case was before the emergence of the strict scrutiny doctrine, there is little doubt that were the case to be revisted, the rational of the Court would likely be upheld as compelling. Its also worth noting that polygamy doesn't impinge the fundamental right to marry in the same manner as same-sex marriage bans. A person is forever prohibited from marrying a person of the same sex but a polygamist is only prohibited from marrying a person while already married to another person, a disability that can be removed. Its similiar to the fact that while the right to vote is fundamental, you can't vote more than once in the same election. A same sex marriage bans is akin to being able to vote, but only if you choose to vote for the candidates of the political party you oppose.
Under Loving v. Virginia, it's both individuals.
"Has any federal judge *ever* been impeached for issuing a bad opinion? "
An interesting factual question that I hope someone on this board can address.
"If not, why begin now?"
Because they just keep getting worse, and eventually you have to say "enough."
"Has any federal judge *ever* been impeached for issuing a bad opinion? "
An interesting factual question that I hope someone on this board can address.
"If not, why begin now?"
Because they just keep getting worse, and eventually you have to say "enough."
If a majority of the people of the state of Nebraska opposed a policy of allowing Democrats to live and voted to pass a constitutional amendment making being a Democrat a capital offense, with the death sentence to be carried out post-haste with no opputunity to appeal, would you claim a federal judge striking down that law would be denying a majority of Nebraskans their will through the political process? Or would you find that Democrats like all other people have a 14th Amendment liberty interest in their life via the Due Process Clause, that the amendment is violative of the Equal Protection Clause and is an unconstitutional Bill of Attainder? Just because a majority favors something doesn't make it constitutional. Hell, it wasn't until 1991 that a plurality (48%) of Americans approved of interrcial marriage, a full TWENTY-FOUR years after the Supreme Court excised miscegenation bans from American law.
"Has any federal judge *ever* been impeached for issuing a bad opinion? "
An interesting factual question that I hope someone on this board can address.
"If not, why begin now?"
Because they just keep getting worse, and eventually you have to say "enough."
"Has any federal judge *ever* been impeached for issuing a bad opinion? "
An interesting factual question that I hope someone on this board can address.
"If not, why begin now?"
Because they just keep getting worse, and eventually you have to say "enough."
"Has any federal judge *ever* been impeached for issuing a bad opinion? "
An interesting factual question that I hope someone on this board can address.
"If not, why begin now?"
Because they just keep getting worse, and eventually you have to say "enough."
You state that gay people are gay yet offer no proof. Please let me emphasize this point as it is uniquely important to all the confusion on this issue.
There is no proof that sexual orientation is anything other than a learned behavior. In fact, there is proof to support the contention that sexual orientation is simply a state of mind. That's good for us!
Now think of that. We cannot go to court and "prove" that we are one thing or the other and therefore entitled to some special legal provision when that provision is contingent on a state of mind that we can change by will. There is no requirement being discussed that people actually demonstrate a behavior to prove their status nor is there some distinquishing facet of the individual that we can use to discriminate. Would we want to discriminate on a private choice?
Note that a choice made by the individual that is used by the state as a basis for legal action infers that the state is now involved/empowered in that individual choice. Do we want the state to dictate/penalize/favor our private choices of this sort? Isn't our state of mind intrinsic to our individuality and fundamental to our sovereignty? You must admit that one can chose a certain sexual proclivity--to want or not want and to what degree at any time. If we cannot, than our thoughts and desires are dictated by our environment and we are no longer different from animals and will be treated as such by any being with a greater degree of self-direction/autonomy.
Such discrimination is anti-democratic. What some wish for here in allowing a special provision for homosexual unions is actually anti-democratic. Remember, sex and marriage are two different things. I am not aware that one implies the other in our legal system. Would we want it any differently?
Gay people already can marry, they do it all the time. I've attended a number of religious ceremonies. Same with polygamy - I know the 3rd wife of an Islamic man right here in Washington state. No the current discussion is only about a civil contract licensed by the state, to bring in talk of 'protecting the institution of marriage' is a bunch of bull.
So since this is a civil contract issue, what the state has to do is justify their making it licenseable to only some citizens based solely on the gender of their prospective cosignee. It is the state's inability to justify this class difference in licensing that has made so many courts rule in favor of same-gender marriage.
While constitutional based discrimination of this nature on licensing the contract can be created this amendment goes far beyond that - it limits a subgroup of citizens ONLY from "civil union, domestic partnership or similar unions." Those citizens who are in 'other than marriage' unions with opposite sex are not excluded from recognition carte blanche. Further the judge is correct in that this could be construed to mean that even mutual contracts that crudely emulate the legal benefits bestowed by the licensing of the civil contract that were previously legal now are potentially not. So this isn't the mere limiting of some citizens access to a particular legal contract but the blanket limiting the rights of citizens to a broad range of contractual tools.
So much for everyone being 'created equal' - but then the originalists look at the Declaration of Independence as more a historical curiosity, don't they?
Your criticism does not pass muster. Gender is fundamental. Our DNA cannot be changed by the individual through willful action. Gender is not a state of mind or a choice--it is a condition of birth.
In fact, it is the most fundamental distinction of any intrinsic distinction. Think of that. Your slippery slope implications are nonsense.
For the state to adopt an institution, there should be a state interest. Marriage (legal) is a creation of the state--not a natural right (we are only talking about legal marriage here, not some blessing of druids).
You are caught in a double negative. You need to show a state interest in creating a new institution of same-sex marriage. This is generically different from the state recognized institution of alternate sex marriage. As a matter of policy, the state can do what it wants here. There is no natural right for the state to adopt this institution. In fact, there is nothing to force the state to recognize alternate sex unions--the state does it in its own interest.
State of mind is a fundamental right.
Recognition of marriage is a state policy.
(Most who are confused here seem to be confused based on a desire to adopt a policy and to convince others that it should be adopted based on a false rationale. For those who want to advocate this policy change, it would be better to point to some social benefit of same sex unions.)
As for your assertion that there is no proof that sexual orientation is anything other than learned, that is only true if one discounts all science on the subject since the 1940s.
Thanks for your response. Knowing that individuals, rather than couples, have marriage rights raises the following question:
Can you, or anyone else, tell me how the amendment affects individuals differently in a way that is constitutionally unfair to homosexuals?
Every individual, regardless of sexual orientation, is subject to the same requirements for marriage, and is entitled to the same benefits of marriage.
The amendment prevents homosexuals from marrying persons of the same sex, but it also prevents heterosexuals from marrying persons of the same sex. Objectively, the impacts of the amendment are the same on heterosexuals and homosexuals.
How can a law that affects all individuals the same way be an unconstitutional infringement on the rights of some?
Note that I said "gender" not sexuality. Sexuality is a choosen state of mind. Gender is a condition of birth.
BTW, if you have proof, you would be the first. Please share. Even our best science cannot discern a genetic distinction.
Anyone can "marry", its just that the state will not recoginize all but a certain type of union for its purposes.
I'm married to my computer. Alas, no state recognition.
So, in your view, if the law says an individual can only marry other individuals of the same race, that's constitutional, as long as it applies to everybody?
Because equal application of the law is not the same thing as equal protection of the law. The miscegenation laws of Virginia and the atleast 39 other states that have had them at some point in their history had equal application. In essence, they limited all people to marrying a person of the same race. The Supreme Court has rejected the argument that equal application of a law immunizes it from Equal Protection scrutiny. See McLaughlin v Florida ("Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose.") and Loving v Virginia ("[T]he Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.").
Moreover, the court has found the right to marry itself to be so fundamental a right that
Supposedly, we do not recognize race as a legal factr although it is a condition of birth (not genetically significant and actually quite questionable).
However, the law does recognize male-female as a psysiologically distinction. So your analogy is not appropriate.
Are you aware that your citation of Casey actually supports my contention, but does not support the notion that the state can create a "right" to marry, i.e. the right is a natural right choice. Again. Casey says nothing about the state policy of marriage, only makes mention of the intrinsicness of "choice". Too bad they did not consider when and where that ability to choose arises. (A half-baked decision if ever there was one).
You also need to be able to define these classes that the equal protection/application is relevant to--they don't exist.
How do you define these classes? Ha, there's the rub.
However, the law does recognize male-female as a psysiologically distinction. So your analogy is not appropriate."
Huh? I don't know if you're a lawyer, but the last time I checked, the law recognizes both race and gender.
And as far as homosexuality versus heterosexuality, Equal Protection requires that the government provide a rational basis for any law that treats these two classes differently.
The Constitution provides that all are equal irregardless of race. The court has not directly challenged this fact although it is not in agreement with it either. However, gender is recognized as a legitimate distinction for policy making.
Define what a homosexual or heterosexual is please. How is this a condition of birth and not an artificial label that one applies to themself? How can a court distinguish between such individuals? What is measurable?
You have twin and sibling studies looking at identical and fraternal twins raised together and apart, studies of siblings (related and adopted) and compared to twins. You have the study linking male homosexuality to increased female fertility in their mother and higher than average incidence of homosexuality in the maternal lines of homosexuals. You have the study of the hypothamlus of straights and gays. You have the study of finger lengths of lesbians compared to straight women. The body of scientific evidence overwhelmingly supports a conclusion that sexuality is largely based in genetics and heredity.
It does? Please show me what part of the Constitution says this.
"However, gender is recognized as a legitimate distinction for policy making."
Actually, laws that differentiate on the basis of gender have to pass intermediate scrutiny.
Like I said, you're not a lawyer, are you?
Right. None.
I am already aware of your position. Can you support it?
In answer to your question. Yes. Of course.
Just because we chose one behavior and grow accustomed to it does not mean that we cannot learn. You don't need to take my word for it. There are plenty of examples you might have referenced.
Now, what is the basis for your position besides a desire to believe?
Can you prove yur position? This is your chance. BTW, there are plenty of formerly married (hetero) people (with kids also that are now looking to be married to same gender individuals. I know of one case myself (not me).
You are punting with the "ick" factor. Pleae support your point.
Here you go:
Amendment XV
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation
That's obviously limited to voting. Please show me what part of the Constitution says "all are equal irregardless of race", as you assert, and which is obviously a much broader rule.
And to go back to Bemac's assertion, I ask you: If a law says you can't marry somebody of a different race, and the law applies to everybody regardless of race, is that constitutional?
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Note that the ERA was never ratified.
What position is it, exactly, that you wish me to prove?
"there are plenty of formerly married (hetero) people (with kids also that are now looking to be married to same gender individuals."
Well I don't know what "plenty" means, but hey, I've no doubt there are people who previously denied their homosexuality. The question is, were they ever heterosexual, or were they simply denying their true nature in order not to be persecuted?
Didn't you ever read "Black Like Me"?
The law does not say that you cannot marry--only that only certain arrangements will be recognized as a marriage.
As I had said (and you have yet to refute) while race is considered to be immaterial--gender is not (which is why the ERA only specified sex).
Whatever. We're talking about the legal recognition of marriage.
"As I had said (and you have yet to refute) while race is considered to be immaterial—gender is not (which is why the ERA only specified sex)."
You obviously don't know anything about constitutional law. I keep asking you: You're not a lawyer, are you?
You need to be able to distinguish hetero from homosexual to show that someone is being discriminated against by the existing laws (to prove your case--its up to you to make a showing). You have not provided any basis to show that sexual orientation is a fundamental right.
I guess I thought it was completely obvious that there's a big difference between heterosexuals and homosexuals. If you wish, I will dig up the vast amount of research on the subject.
"You have not provided any basis to show that sexual orientation is a fundamental right."
I'll simply quote the 14th Amendement, as you did. After all, the number of times if mentions race is equal to the number of times it mentions sexual orientation. Right?
As for defining the classes Equal Protection Clause applies to, the Clause applies to any and all classes that it is possible to create. All classes, regardless, must at a minimum statisfy rational basis. See Romer v Evans. There the Court found what some have dubbed second order rational basis sufficient to strike down Colorado's law classifying people based on sexual orientation, though left the door open to the possibility of classifications based on sexual orientation to be quasi-suspect or suspect.
And to be more precise, race is heritable, not genetic. Your question to define heterosexual and homosexual is rather disingenuous and not very productive. Defining race and sex can be just as problematic as defining sexual orientation (and indeed the inability to definitively define sex inherently leads to a inability to have such definitively sound definition of sexual orientation. While most people think sex is a pretty, pardon the pun, black and white, it really isn't so. Is femaleness defined by the presence of female genitalia? The abscence of male genitalia? The lack of a Y chromosome? The ability to bear a child? All of the above? None of the above?
The fact is that states do classify people for various purposes. Most of us understand that and have no problem with it so long as there is a legitimate or compelling interest.
I'll listen to any argument you have. Last I checked, lawyers are functionaries, not sources of authority. Whether you have been admitted to the bar or not, you are still in the postition of attempting to refute what is established law i.e. that the Supreme Court recognizes gender distinctions as a basis for policy makingleading to disparities but does not regard race equivalently (by the 14th and 15th).
As you make mention voting is not the entirety of equal rights (19th Amendment) for sex or race--it is the interpretation of the 14th that provides racial but not gender equality in theory. Do you disagree with this?
Here is your quote from Casey:
Yes, it directly supports my case.