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Fierce advocacy:

Continuity continues. The Obama Justice Department yesterday filed a brief urging a California district court to dismiss a little-known constitutional challenge to DOMA filed in late 2008 by a married gay couple. (No, it's not the Olson/Boies challenge to Prop 8.) The brief makes some unexceptional jurisdictional arguments about standing and immunity. For lots of reasons, gay-marriage advocacy groups would like to see this case go away, but go away without damage to the substantive constitutional case against DOMA. A dismissal on jurisdictional grounds would nicely suit that purpose, and that seems to me the most likely outcome.

But the DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case, which attacks both DOMA Section 2 (interstate recognition) and DOMA Section 3 (federal recognition). There's a hodge-podge of claims in the case. Everything from the Full Faith & Credit Clause to freedom of speech is hurled at DOMA by the claimants.

Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that gay-rights scholars and litigants have made over the past 30 years.

Fundamental right to marry that includes same-sex couples? Nonsense under the narrowest approach to such rights, as articulated by Chief Justice Rehnquist in Washington v. Glucksberg, who wrote that in evaluating a fundamental-rights claim a federal court must follow tradition and tradition is to be understood as narrowly as possible.

The Loving analogy? Rejected. Strict scrutiny for laws discriminating against gays and lesbians? Unprecedented. Sex discrimination? Meritless. Romer v. Evans? That dealt with a comprehensive denial of rights, unlike DOMA. Lawrence v. Texas? That was a privacy case.

Ninth Amendment rights? No such thing.

Three specific points in the brief are especially noteworthy:

(1) The DOJ asserts that federal courts are precluded from even considering the merits of a constitutional challenge under the due process and equal protection clauses. DOJ brief, pp. 28-30. That's because, says the DOJ, 37 years ago the Supreme Court dismissed a claim for same-sex marriage for lack of a "substantial federal question" in a memorandum opinion, Baker v. Nelson. The case had arisen from the earliest constitutional challenge to a marriage law, in Minnesota in 1971. The state court concluded in a very brief and dismissive opinion, unsurprising for the time, that same-sex couples had no fundamental right to marry under the due process clause and that denying them marriage was not invidious discrimination under the equal protection clause. Agreeing with what same-sex marriage opponents have argued for years, the DOJ says the Supreme Court's summary disposition of the appeal decided the matter on the merits of the claims and binds the lower courts, whatever changes there might have been in the underlying doctrines over the years. My guess is that gay-marriage litigants would argue that they are not presenting the same arguments made 37 years ago, even if the same constitutional clauses are invoked, that the circumstances ought to suggest a very narrow understanding of the "federal question" decided in 1972, that Baker did not decide all variants of equal protection and due process challenges to marriage laws, and that at any rate the DOJ did not need to make this argument.

(2) Much more surprising, the DOJ argues that denying marriage to same-sex couples is not even discrimination on the basis of sexual orientation:

Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

More bluntly put, the Obama DOJ is saying that DOMA doesn't discriminate against gays and lesbians because they are free to marry people of the opposite sex. No "homosexual" is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There's a nice boy across the street. It's identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn't discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration.

(3) The Obama DOJ also has new understanding of federalism:

[B]ecause Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not. (emphasis added)

Historically federal marriage benefits have been available to anyone married under state law. The federal definition was parasitic on the state definition. If a state chose to allow 14-year-olds to marry, but most states did not allow that, nobody thought federal recognition of such marriages functioned as a subsidy forced on the taxpayers of other states. DOMA changed that, but only for gay marriages. "Neutrality," as the Obama administration understands it, does not mean federal recognition of state choices in this matter. It means denying federal recognition of state choices.

My point here is not to claim that the DOJ's arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there's little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part start?

(HT: AMERICABlog)

Related Posts (on one page):

  1. The least he could do:
  2. Fierce advocacy:
ohwilleke:
Conceding in litigation that the Plaintiff is right is a really powerful way to get constitutional change if an administration wants to use this tool. I'm surprised that it isn't done more often. A case like this could have been a real opportunity for Obama's administration to secure advances in gay rights that might be hard to achieve legislatively, while defensible legally as a reassessment of what the law really is in this area.
6.12.2009 6:19pm
LongCat:
I voted for McCain, but I figured the one and only silver lining of Obama winning would be a commitment to gay rights. Log Cabin Republicans just can't catch a break.
6.12.2009 6:21pm
John (mail):
Is anybody out there keeping track of Obama the candidate vs. Obama the president? I assume there must be some blog somewhere.
6.12.2009 6:23pm
PersonFromPorlock:

He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part start?

Maybe he's "a fierce advocate for gay and lesbian Americans" and a fierce opponent of gay or lesbian sex? You know, loving the sinner and hating the sin....

Or as Instapundit asks, "Who are the rubes?"
6.12.2009 6:26pm
levisbaby:
McCain lost.

Get over it.
6.12.2009 6:28pm
spudbeach (mail):
I understand that in a reply brief, the lawyers want to use all the arguments available (inability to raise arguments on appeal that weren't raised at trial, etc.).

On the other hand, in a court opinion, a judge will only address the minimum needed to reach the holding (Dred Scott v Sanford as a good example of what happens when a court goes further than it needs to).

Should a prosecutor ever act like a judge here, and go no further than necessary to win the case? Having read the brief, I can say that the standing and jurisdiction areas look iron-clad. Should the substantiative areas even have been raised at the 12(b)(6) dismissal stage at all? Certainly, there would have been a lot less political fallout if the brief had just focused on the details rather than the big picture.
6.12.2009 6:31pm
Nunzio:
Repeat after me: Dick Cheney supports gay marriage; Barack Obama is against gay marriage.

They both agree, however, that gay marriage is for the legislature not the courts.
6.12.2009 6:37pm
Officious Intermeddler:
Memo to the gay left: if you can't tell who the rube is, it's you.
6.12.2009 6:41pm
AFJ (www):
"Barack Obama is against gay marriage."

So he's said. But wait, he's also said he's opposed to the DOMA, and he opposed Prop 8. The president has a habit of taking both sides of an issue.
6.12.2009 6:47pm
Kazinski:
Should a prosecutor (sic) ever act like a judge here, and go no further than necessary to win the case?

Huh? If the "prosecutor" were deciding the case like the judge is, then they would know how far they need to go to win. But they don't so they have to pull out the kitchen sink. Not only that if they lose on appeal, then they may be foreclosed in raising other issues if they didn't raise them in their initial brief.

Next we should discuss how many runs a baseball team should score in the first inning to keep the score from being too lopsided.


I wonder though is Carpenter suggesting that DOJ should abrogate their responsibility to defend the law of the United States in Court, and collude to undermine the will of Congress and the people by not robustly defending the law?

Much of the brief seems right to me, or at least entirely defensible.
6.12.2009 6:47pm
jellis58 (mail):
"This sort of formalism has incited howls of laughter over the years when made by religious conservatives."

Please explain. I, and many others, have always thought this to be the correct view of the matter and laughter is no argument against. I think the result in Lawrence is best justified on due process right to privacy grounds not equal protection grounds. O'Conner's concurence made do sense precicly becasue of the "formalistic" argument you find laughable. This is also why denial of gay marrige must be seen as sex, not sexual orientation, discrimination. Only then does the Loving analogy work, albiet with a different standard of review.
6.12.2009 6:50pm
AFJ (www):
The administration gets another one right. If only the president really believed it, and made the case for traditional marriage consistently.

The equal protection argument for redefining marriage is baseless. There's no right to equal protection of different things. There's no violation of anyone's rights when treating a married individual and an unmarried individual differently, for example.

The Loving analogy is ludicrous on its face. There is no comparison at all between the role of sex in intimate human relationships and the role of race in those relationships, none whatsoever.
6.12.2009 6:59pm
Stephen Clark (mail):
As an Obama supporter, voter, and fundraiser--unlike Dale--I don't have any qualms about criticizing Obama. This brief is an appalling betrayal of the gay community. It effectively declares us all constitutional outcasts.
6.12.2009 7:12pm
Friedman Fan:
Free to marry persons of the opposite sex? Sounds an awful like the logic the S.Ct. used in Pace v Alabama, which was repudiated by Loving (and, not surprisingly, is absent from the brief).
6.12.2009 7:29pm
MarkField (mail):

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part

start?

I'd guess it'll start soon after he fulfills his promises about FISA and openness in the Administration and detainees. Of course, what with global warming and all, I'm not sure it'll ever get that cold again....
6.12.2009 7:43pm
JDS:
Benefits of marriage? I'm in one of the 3 million straight couples living together without being married because we computed the very substantial income tax costs, and decided that and the other legal entanglements didn't justify the mostly symbolic benefits. Domestic Partnership is a much better deal than marriage - we could have the insurance benefits of marriage without the higher taxes and capricious family courts.

Be careful what you ask for - you just might get it.
6.12.2009 7:45pm
resh (mail):
As I read Loving, the issue had to do with marital choice as a predicate of the liberty clause within the 14A. Race was a subtext-merely the object of the choice.

That being said, applying ditto logic, ssm is inevitable via the 14th. Obama can run (for a 2nd term), but he can't hide.
6.12.2009 7:45pm
Perseus (mail):
The president has a habit of taking both sides of an issue.

So President Obama is a politician. I'm shocked, absolutely shocked.
6.12.2009 7:46pm
Volokh Groupie:
@Perseus

Indeed, its not like the fundamental themese he campaigned on were 'change', 'hope' or doing things differently from beltway insiders. (Though I think these same ideas were articulated by Bush when he was running in 2000)

The only thing I can think of is that the administration has been heartened by the recent victories for gay marriage and other gay rights in state legislatures and has decided to take an incremental approach. However, even that is a pretty weak argument.
6.12.2009 7:54pm
ShelbyC:
levisbaby:

McCain lost.

Get over it.


Well, at least Bush is still in office :-).
6.12.2009 7:58pm
Kevin Forrester (mail) (www):
I read and found this interesting yesterday:

Proposition 8 and the Future of Same-Sex Marriage Activism

Jeff Redding brings up points that don't even seem to exist in the popular arguments about same-sex and opposite sex marriage. I wonder why not?
6.12.2009 8:06pm
Soronel Haetir (mail):
Stephen Clark,

Why would you be disappointed on this one? He came right out and said he didn't support you on this topic. I thought he was lying but am glad to see he wasn't.
6.12.2009 8:13pm
Pro Natura (mail):
Obama has been such a consistent liar throughout his career--it's worth remembering that he probably won the Presidency by lying to McCain about his willingness to forego private campaign funding--that it seems disingenuousness for erstwhile supporters to express concern as he continues to prove himself a liar after his election.
6.12.2009 8:13pm
Bpbatista (mail):
Suckers!
6.12.2009 8:33pm
Owen Hutchins (mail):
It's amusing watching the right try and split the gay-rights crowd away from Obama; as if they'll do better with them.

Aside from the fact that he has a lot going on right now, ever think he might be trying to lose?
6.12.2009 9:09pm
Cornellian (mail):
The actual brief was filed by a holdover from the Bush administration so I'm willing to believe that this one simply slipped through the cracks. If so, the Obama administration can fix the situation, even now. If they don't then we'll know where their priorities are and we can all take that into account when they come around in an election year asking for money.
6.12.2009 9:17pm
Thackery:

"He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part start?"


Dale, Dale, Dale...it's time for you and and the rest of those duped by Obama to stop complaining. He's not going to support gay marriage any more than he's going to bring the terrorists in Guantanamo to the U.S. It has always big one, big, con job.
6.12.2009 9:28pm
Mark in Colorado (mail):
Mr. Carpenter, all I can say to you, is that if you were my partner, I would wish you to sleep well.
6.12.2009 9:29pm
Stephen Clark (mail):
@ Cornellian

I don't give the Administration the benefit of the doubt anymore. Until I hear more, I'm not willing to excuse this one as having slipped by them.

@ Soronel Haetir

Because (a) I also thought he was lying (and still think he is) in claiming to oppose same-sex marriage, particularly given his support for it in the 1990s; (b) the arguments are completely contrary to the theory of constitutional interpretation that he espouses; and (c) his position has been more nuanced than strict opposition to same-sex marriage, including opposing Prop. 8 in California.

And to say I was disappointed misreads my comment. I was disgusted, but hardly surprised given the Administration's emerging "worse-than-Bill-Clinton" record on gay rights.
6.12.2009 9:33pm
cmr:
This is refreshing, not just because it's defending DOMA, but because after the lawless DOJ of the Bush Administration, I'm glad Obama is doing what he's supposed to do and uphold the law's as they are written.

Obama says he's against gay marriage, but against DOMA, too. That's essentially a nothing opinion because on cancels out the other.
6.12.2009 10:07pm
J. Aldridge:
Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that gay-rights scholars and litigants have [invented] over the past 30 years.

Fixed.
6.12.2009 10:20pm
Danny (mail):

So he's said. But wait, he's also said he's opposed to the DOMA,



Yeah so against it he will defend it to the bitter end

The Democrats are truly a bunch of spineless scumbags. And we were the suckers who believed in him. Well I voted twice (2004 and 2008) in my life and I think I'm finished with that.

Old W. said it best: "Fool me once, shame on me..."
6.12.2009 10:51pm
Owen Hutchins (mail):
Old W already fooled you twice, where are going from there?
6.12.2009 11:13pm
zuch (mail) (www):
The Loving analogy? Rejected. Strict scrutiny for laws discriminating against gays and lesbians? Unprecedented. Sex discrimination? Meritless.
None of the laws in question prohibit gays from marrying. What they prohibit is the marriage of a person to another of the same gender.

You'd think that people that go by "the plain language of the law" would be up in arms about gender discrimination here (unless they are in fact in favour of gender discrimination).

Cheers,
6.12.2009 11:26pm
Danny (mail):
I never voted for Old W... but I was stupid enough to vote for the Ds twice. That was fun, now I say screw the Republicans and the Democrats and the USA
6.12.2009 11:26pm
Volokh Groupie:
@Cornellian

But one of the Assistant AG's on it was ostensibly a liberal appointed by Obama - Tony West.

That said I'm somewhat sympathetic to this statement from a senior administration official:


"Note that the standard for defending a statute, once enacted, is lower than whether, in our judgment, it is constitutional," a senior administration official said. "It is whether there are arguments that can be made. The DOMA statute has been found constitutional by at least 6 courts and has never been struck down. Whatever we think, it would be pretty hard to say that there are not 'reasonable arguments' with that context."
6.12.2009 11:29pm
Volokh Groupie:
The other thing I wonder is how much power did the Administration have in deciding who would file the brief?

Considering the sensitivity of this issue could they have assigned it to someone else?
6.12.2009 11:44pm
aratina:
@zuch

None of the laws in question prohibit gays from marrying. What they prohibit is the marriage of a person to another of the same gender.

Wrong! You did not finish your thought in the first sentence, which you would see is completely wrong if you had: "None of the laws in question prohibit gays from marrying the person they love." Thus, the law absolutely does prohibit gays from marrying, unless I'm mistaken and straights like you, zuch, are now marrying for more "traditional" reasons other than love.
6.13.2009 12:18am
zuch (mail) (www):
Prof. Carpenter:
My point here is not to claim that the DOJ's arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations.
They're both wrong (for the very reasons you point out).

Cheers,
6.13.2009 12:18am
zuch (mail) (www):
aratina:

I agree with you ... and I know full well that the impetus for the anti-SSM laws is to prohibit gays and lesbians (the obvious targets) from marrying. But I was pointing out the hypocrisy of the conservatives who insist on a "literal" reading of the laws in not recognising that, facially, this is a gender discrimination issue.

I would mention, in case you're ineterested, that I'm proud and heartened to haver married my bride during that brief time when California saw fit to let anyone marry the one they love.

Cheers,
6.13.2009 12:35am
Cornellian (mail):
Government lawyers are supposed to report sensitive things upwards before filing so maybe this guy didn't and there are going to be consequences for him for failing to do so, or maybe he did and there are going to be consequences for the guy he reported up to for letting something like that get through. I think the minimum they need to do is withdraw the brief and issue a statement repudiating it.

You can argue for the constitutionality of DOMA without employing the kind of slimy arguments one finds in that brief.
6.13.2009 12:40am
Cornellian (mail):
None of the laws in question prohibit gays from marrying. What they prohibit is the marriage of a person to another of the same gender.

And an anti-miscegenation law doesn't prevent black people from marrying either, everyone is equally restricted to marrying someone of the same race.
6.13.2009 12:50am
Cornellian (mail):
Note that the standard for defending a statute, once enacted, is lower than whether, in our judgment, it is constitutional," a senior administration official said. "It is whether there are arguments that can be made. The DOMA statute has been found constitutional by at least 6 courts and has never been struck down. Whatever we think, it would be pretty hard to say that there are not 'reasonable arguments' with that context.

Note, Mr. Obama, that just because you think a statute is constitutional doesn't mean you are required to put forward every conceivable argument to support it, no matter how slimy and no matter whether you agree with the argument or not.
6.13.2009 12:54am
Randy R. (mail):
What is particularly reprehensible to the gay community is that this is the 40th anniversary of the Stonewall Riots in NYC. (June 28). Which is why June is Pride Month across the land. To issue such a brief on such an important issue to the gay community, and supposedly an important part of the Democratic party and this administration, at this particular time is astoundingly insensitive at best.

Obama could have at least softened the impact by jointly issuing a statement or speech calling on Congress to repeal DOMA, or asserting the right of SSM to be recognized at least at the federal level. He could have also notified the major gays rights organizations to alert them to the brief so that they could brace themselves for what's coming. He could have also had someone from the community review to brief before it was filed to see if there were any gratuitous insults that should be avoided, or arguments made that could be damaging to gay rights in the future.

But Obama did nothing. Still has done nothing. Has issued no statement that anything will be forth coming. On this, or ANY gay issues.

At best insensitive to an important constituency that worked very hard to elect him. At worst, it's a big FU.

As Andrew Sullivan says, Obama likely thinks of gays as a distraction and a bore, and certainly not important enough to actually be concerned about beyond occasional lip service.
6.13.2009 1:19am
David Schwartz (mail):
None of the laws in question prohibit gays from marrying. What they prohibit is the marriage of a person to another of the same gender.
And, of course, a law against praying to Jesus doesn't prohibit Christians from praying. They are still totally free to pray to Jehovah, Allah, Zeus, or many other deities.
6.13.2009 1:20am
Cornellian (mail):
They are still totally free to pray to Jehovah, Allah, Zeus, or many other deities.

And I say, what's the harm in hedging your bets? Pascal's Wager on steroids.
6.13.2009 1:30am
KWC (mail):
This is total bull.

Any more news on the federal lawsuit? I thought all major gay rights groups were against the idea but now EQCA seems to be behind it (or at least behind Jerry Brown being behind it).

What gives?

Obama has betrayed the gays from day one. Shame, shame.
6.13.2009 3:11am
cmr:
And, of course, a law against praying to Jesus doesn't prohibit Christians from praying. They are still totally free to pray to Jehovah, Allah, Zeus, or many other deities.



Why does it seem like the only rational basis to support gay marriage comes from people's willingness to make silly and intellectually dishonest associations to other things that could be construed as bigotry? And more importantly, how many times has this "flip it upside down, hold it away from your face, squint out of one eye" way of viewing the issue actually worked in convincing people to support gay marriage?
6.13.2009 4:07am
Tom Chatt (www):
A couple random observations about the brief:

Based on the DOJ's summary of how state marriage laws differ (see p. 16 in the conflict-of-laws discussion), shouldn't the people of Arizona be outraged that their federal taxes are subsidizing those first-cousin marriages in New Mexico, and the people of New Jersey outraged that they're subsidizing those 16-year-olds marrying in Indiana?

And I was quite surprised to learn that the only reason that Loving prevailed was that Virginia's miscegenation law lobsidedly prevented only whites from marrying any other race. If I'm understanding the DOJ reading of Loving, Virginia would have survived constitutional muster if their law equally prevented any race from marrying any other race.
6.13.2009 4:27am
Stephen Clark (mail):
@ Cornellian

While I find your excuses for the Obama administration conceivable, I don't find them realistic.

@ Randy R.

Are you kidding? Obama won't call on Congress to repeal DOMA. The White House has already clensed their website of any reference to the campaign promise to repeal DOMA. He has thrown the gay community under the bus precisely because his handlers have decided to coddle antigay bigots. If anything, I would have expected the Administration to run the brief by the Family Research Council to make sure it didn't have any language that offended the antigay bigots whose approval Obama bizarrely craves.
6.13.2009 7:28am
Brett Bellmore:

I wonder though is Carpenter suggesting that DOJ should abrogate their responsibility to defend the law of the United States in Court, and collude to undermine the will of Congress and the people by not robustly defending the law?



You write that as though they hadn't often done so in the past.


None of the laws in question prohibit gays from marrying the person they love.



The law routinely prohibits people from marrying the person they love. The person they love might already be married, or be too young, or be mentally incompetent, or too closely related... The polygamists have the stronger case, on several grounds, than the SSM advocates. I've been rather disappointed in the way SSM advocates abandoned consistency to defend laws against polygamy, it weakened their own case.
6.13.2009 7:45am
Malvolio:
None of the laws in question prohibit gays from marrying. What they prohibit is the marriage of a person to another of the same gender.
And an anti-miscegenation law doesn't prevent black people from marrying either, everyone is equally restricted to marrying someone of the same race.
Nope. As Tom points out above, the Virginia law only prevented white people from marrying outside their race. Blacks, American Indians, Hispanics, and Asians could marry each other -- white people were apparently the "victims" of this unfair law. Unless the idea was that marriage to a white person was so packed full of wonderful, it was unfair to deny it to other races.

(There was also a due-process claim -- that to restrict so fundamental a right as marriage needs a much more substantial reason than race -- but that doesn't really apply to SSM.)

The equal-protection clause comes down to what you regard as analogous. Chris are in love with Bob and can marry him but Pat is in love with George but cannot. To Chris, a gay male, the love he shares with Bob is completely analogous to Pat and George's. Pat, a straight female, might find homosexuality icky and so intuitively rejects the analogy.

To someone like Pat, the assertion that her relationship is like Chris's translates to "your relationship is also icky" -- Pat might vocalize this feeling as "it's an attack on traditional marriage", which only confuses Chris and Bob, who presumably don't share Pat's distaste for homosexuality.

I'm hoping that the whole Prop 8 debacle will convince SSM advocates that winning in court isn't enough -- they have to actually convince the Pat's of this country, "What we say our love and your love are the same, we don't mean 'your love is icky and gross like ours' -- obviously, we mean, 'our love is sacred and beautiful like your.'"

I tried to tell a gay friend of mine that and all he could say, over and over, was "Why should we have to do that?" All I could say, over and over, was "Because if you don't, you're gonna lose."
6.13.2009 7:45am
PersonFromPorlock:

...the Obama DOJ is saying that DOMA doesn't discriminate against gays and lesbians because they are free to marry people of the opposite sex.

I'm suprised that everyone so far's missed the great-granddaddy of all comments on such reasoning: Anatole France's sardonic “the law, in its magnificent equality, forbids rich and poor alike from sleeping under bridges and begging for bread in the streets.”
6.13.2009 8:11am
Oren:

I wonder though is Carpenter suggesting that DOJ should abrogate their responsibility to defend the law of the United States in Court, and collude to undermine the will of Congress and the people by not robustly defending the law?

I wondered the same thing myself.

DOMA is Congress' problem, and if it's going to be fixed, that's the right place to start.
6.13.2009 8:19am
martinned (mail) (www):

DOMA is Congress' problem, and if it's going to be fixed, that's the right place to start.

Actually, I think that's a question that is still unresolved, especially for Bush-Republicans: If the president has independent authority to interpret the constitution, as evidenced by the presidential oath clause and the common practice of attaching signing statements discussing constitutionality to statutes, how can he be compelled to defend the constitutionality of a law he doesn't think is constitutional?

(Leaving to one side for the moment the question of whether Obama thinks DOMA is unconstitutional.)
6.13.2009 8:38am
Oren:
martinned, I won't attempt to solve the issue of the precise meaning and weight of the modifier "faithfully" in Art II Section 3 mainly because it's an issue I can't actually figure out myself and is a perennial interpretive nightmare.

I will, however, say this -- whatever independent authority the POTUS has to independently assess the constitutionality of the laws, it is a power he should not use lightly. That is to say, he's either all-in or all-out with respect to DOMA -- if he doesn't defend it in court, he's putting it all on the line right there.
6.13.2009 8:50am
zuch (mail) (www):
cmr:
Why does it seem like the only rational basis to support gay marriage comes from people's willingness to make silly and intellectually dishonest associations to other things that could be construed as bigotry?
Because you ignore the rational bases that it's NOYB and that people shouldn't be prohibited from doing a good [or at least harmless] thing (amongst other such rational bases).
And more importantly, how many times has this "flip it upside down, hold it away from your face, squint out of one eye" way of viewing the issue actually worked in convincing people to support gay marriage?
As for "silly and intellectually dishonest associations", simply stating that somthing is "silly and intellectually dishonest" without actually showing that such is true is hardly likely to convince anyone other than a dedicated Limbot who takes his thoughts predigested to protect a sensitive disposition. But they already agree with you....

Cheers,
6.13.2009 9:03am
martinned (mail) (www):
@Oren: That seems fair enough, but I'm not sure if that is actual practice. Reasoning the same way, I'd say the president ought to veto any bill he thinks is unconstitutional in some way, rather than attaching a signing statement. A signing statement like that is a bit of a hedge-your-bets half-way solution. Similarly, I can see room for a president to put the enforcement of certain laws on the back burner due to constitutional concerns, or be less than all-in when it comes to defending certain laws in court.

In a perfect world, the president would have to commit. (The French system, discussed in this VC post yesterday, will certainly do that.) But absent a constitutional amendment forcing the president to do that, I'd say there is significant wiggle room, both as a matter of law and as a matter of practicality.
6.13.2009 9:09am
Ryan Waxx (mail):

Shelbyc: Well, at least Bush is still in office :-).


ShelbyC wins the thread.
6.13.2009 9:14am
pluribus:
One of Bill Clinton's first moves was to issue an executive order permitting gays in the military. This raised a storm of protest, was quickly reversed by Congress, and resulted in the statutory enactment of don't ask don't tell, which is perhaps even more opressive to gays than the previous policy. It also aroused fierce emotional opposition, even hatred, toward Clinton from the religious right. I believe that Obama would encounter a similar storm of protest if he moved too early on the issue of gay marriage. It would probably destroy his efforts to reform the health care system, to close Guantanamo, to abolish torture as a tool of American policy. Better to wait until some more difficult battles have been fought (and hopefully won) and until he has earned a modicum of trust among the general population and then move on gay rights. I say this while deploring the DOJ brief and wondering why the government thought it was necessary to make such arguments.

An effective president must combine principle with prudence. Principle alone is not enough, unless it is pursued with prudence. Lincoln moved slowly on emancipation, not because he was not opposed to slavery on principle (he was) but because he knew that he could succeed on that issue only by acting prudently, not getting too far ahead of public opinion, and not acting precipitously. He could have issued an emancipation proclamation on his first day in office, and it would quickly have been overturned. It would have confirmed Southern fears that he was, at heart, nothing but an abolitionist. Slavery would have been strengthened, not weakened, and the Union would very probably have been lost right then and there. He waited until the people had more confidence in him, until he could make the case against slavery with the authority of a president known for prudence and more of a chance of gaining support rather than merely arousing opposition. And by waiting he ultimately prevailed. I am hoping that Obama will do the same on this issue. (Please understand, I am not equating the issues of slavery and opposition to gay marriage. The former was far more oppressive maze of unjust laws than the latter. But both are issues of principle and both are highly controversial issues on which public sentiment is deeply divided.)
6.13.2009 9:38am
Brett Bellmore:

(Leaving to one side for the moment the question of whether Obama thinks DOMA is unconstitutional.)


Also leaving aside whether Obama thinks "unconstitutional" means anything more than, "I don't want to do it.". I think he's got the standard politician approach to the Constitution: "Constitutional" is anything he can get away with.

When was the last time a President declared something unconstitutional that we had any reason to believe they actually wanted to do?
6.13.2009 9:39am
martinned (mail) (www):
@Brett Bellmore: I can't think of any case. In their defence, though, I'd say Presidents would normally express their concerns to Congress at an earlier stage, and with less fanfare. (The way the ABA asked them to.)
6.13.2009 9:49am
zuch (mail) (www):
Tom Chatt:
I was quite surprised to learn that the only reason that Loving prevailed was that Virginia's miscegenation law lobsidedly prevented only whites from marrying any other race....
Sort of true. The law in question didn't prevent racial intermarriage between non-whites. It prohibited (and criminalised) marriages between whites and any other race (but the penalties applied equally to both participants; whites and Others were punished equally for such attempted "miscegenation"). And in fact, Virginia, in defence of the laws, pointed out that all were punished equally for the same predicate act, so that equal protection wasn't at stake.
If I'm understanding the DOJ reading of Loving, Virginia would have survived constitutional muster if their law equally prevented any race from marrying any other race.
While Virginia was nice enough to make obvious their racial animus:
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."
Loving v. Virginia, 388 US 1,3 (1967)

and
In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy.
Id at 10.

I think that Loving would have come out the same way even had Virginia prohibited all interracial marriages, not just those involving whites. The animus was the driving factor here, "equal treatment" claims from Virginia notwithstanding. A rough equivalent in the SSM case would be that all marriages between people of the same gender are prohibited (if the anti-SSM laws said that only men-men marriages were prohibited, it might be even closer, assuming that a number of people think that gays are yucky but go rent "Lezzies Gone Wild" tapes). But the fact is that the animus is towards gays and lesbians marrying even though the law facially prohibits SSM to heterosexuals as well. And if it is the animus that is at issue, Loving should dictate that the anti-SSM laws be struck down.

Cheers,
6.13.2009 9:59am
conlaw2 (mail):
As for "silly and intellectually dishonest associations", simply stating that something is "silly and intellectually dishonest" without actually showing that such is true is hardly likely to convince anyone other than a dedicated Limbot who takes his thoughts predigested to protect a sensitive disposition. But they already agree with you.... debate

I think the problem is there are an infinite number of silly and intellectually dishonest associations. God gave humans free will but told Adam and Eve they couldn't eat the fruit = just like this issue. You cannot expect anyone with a life to come out and address them all.
6.13.2009 10:02am
Bouldergeist (www):
Brett B:
The law routinely prohibits people from marrying the person they love. The person they love might already be married, or be too young, or be mentally incompetent, or too closely related... The polygamists have the stronger case, on several grounds, than the SSM advocates. I've been rather disappointed in the way SSM advocates abandoned consistency to defend laws against polygamy, it weakened their own case.
Where is the limiting principle? Can you imagine what would happen to our tax and intestacy laws? Double the size of the Internal Revenue Code to achieve tax equity. If X marries A, B, and C, what is to stop C from marrying W, Y, and Z, and Z from marrying D, E, and F? I don't know how our tax laws could even begin to accommodate that. Check the box, Married filing joint with half the state?

Shari'a law permits a man to marry four women, but does not allow a woman to marry four men. That works as a limiting factor in Islamic societies, but how would that square with the Fourteenth Amendment Equal Protection Clause?

At a certain point, it would look like the Six Degrees of Kevin Bacon (FWIW, I'm a 2). This would probably rise to the level of a compelling state interest.
6.13.2009 10:05am
Soronel Haetir (mail):

And if it is the animus that is at issue, Loving should dictate that the anti-SSM
laws be struck down.


Advocates are going to have an incredibly difficult time arguing that opposite sex only marriage law was enacted out of some animus towards homosexuals. The issue wasn't even on the radar when pre-codified tradition became codified law. Unless there is some claim to a right to change in the law, that keeping current law represents emerging animus. That still seems like a difficult argument to succeed with.

I think Malvolio has the right of it, this is not a battle that is going to be won in courtrooms. Much like Roe in fact, I think the court battles have set their respective causes far back.
6.13.2009 10:34am
lonetown (mail):
Its absolutely absurd to think that this is anything but the result of a political calculation. That's the way that crowd runs!
6.13.2009 10:34am
Danny (mail):

I believe that Obama would encounter a similar storm of protest if he moved too early on the issue of gay marriage. It would probably destroy his efforts to reform the health care system, to close Guantanamo, to abolish torture as a tool of American policy.


You know, I had always assumed that "No Drama Obama" knew what he was doing and was biding his time. But he has been awfully cautious, tremendously shy of reversing even the most radical and criminal of Bush policies. We are still holding people without trial and without accusation. On health care, the single-payer system is apparently off the table, and O "can't commit" to the position that there must be a public plan. No prosecution for torture or even release of the evidence. Building what have been described as "colonial palaces" in Baghdad and Islamabad and expanding Bagram (which sounds sort of like Guantanamo II). Throwing billions and billions at the same corrupt bankers, with no strings attached. And of course reneging on the DOMA and DADT promises. So much "caution" on so many fronts, so "cautious" as to be, as Shelby said, Bush's Third Term? At what point shall we just call it cowardice or complicity? In other countries, when you win the election, you rule the country.

Federal civil unions? You can't have that with DOMA. You can't even really be married within your own state under DOMA

But forget gay marriage. As I've said before, the US has lagged behind large parts of the world including the Balkans and parts of Africa in basic areas of gay rights (like banning employment discrimination and decriminalization of sexual relations).

In most countries, gay rights follows a chronological progression:
1. Gaining the right to freedom of identity and freedom of assembly
2. Decriminalization of sex and sexual relationships
3. Banning discrimination in employment and housing
4. Some sort of limited partnership rights
5. Civil Unions
6. Marriage
7. possibly adoption, which is more controversial than the others

The US national conversation has ploughed ahead on 5, 6 and 7 without having addressed 2 (recently resolved), 3 and 4 in most of the country. Most of the US under O is not as progressive as say Romania and Latvia, those beacons of human rights, on 3 or (until recently) even 2. Most bizarrely, the US has allowed 7 for decades without 2-6.
And we have the paradox of sub-national marriages, i.e. I can marry my (foreign) boyfriend in my state, but he is still a tourist who can stay in the US for 90 days and we can't file our taxes together. Elsewhere in the world, this doesn't happen. You cannot married in Madrid but single in Barcelona and Seville.

If O were holding off on marriage but he was pushing Congress to pass legislation on just elementary civil rights (and catch up with Ecuador and Ukraine in those areas) it would be OK. Maybe we could even become like a normal country, abolish DOMA and have real civil unions, given that some states already have gay marriage. Even if O were completely ignoring gays and lesbians but was leaping ahead in some other area maybe it would be OK. But I see mostly cosmetic and symbolic changes so far: a stylish president who speaks in full sentences and gives inspiring speeches abroad, but on policy inertia and backwardness.
6.13.2009 10:48am
Duracomm (mail):
The gay community gives democrats in general and obama in particular lots of time, money and political support.

In return the gay community gets

don't ask don't tell

and

the defense of marriage act

and

passage of proposition eight in california

Maybe the gay community should start working with republicans more.

At least the republicans who oppose gay marriage are honest about it. They have not given the gay community a kiss on the cheek and then a knife in the back the way the democrats have.

And as a rank political calculation the democrats don't have to and will not do a thing for gay voters. Until they face the real prospect of having gay voters not voting for democrats.

Something to think about.
6.13.2009 10:48am
Danny (mail):

Advocates are going to have an incredibly difficult time arguing that opposite sex only marriage law was enacted out of some animus towards homosexuals. The issue wasn't even on the radar when pre-codified tradition became codified law.



I don't get it, what is the point of restricting marriage to heterosexuals if not animus against gays? Animus is its raison d'être
6.13.2009 10:50am
martinned (mail) (www):

Advocates are going to have an incredibly difficult time arguing that opposite sex only marriage law was enacted out of some animus towards homosexuals. The issue wasn't even on the radar when pre-codified tradition became codified law.

Which is why such laws generally did not say anything about the sex of the couple who would be entitled to apply for a marriage license. Only when the fundamentalists started getting paranoid about The Gays did most states write such a limitation into the law. (Or even the Constitution.)
6.13.2009 10:58am
Letalis Maximus, Esq. (mail):
Folks, Eric Holder (an Obama appointee) is the Attorney General. I don't give a red piss who signed the brief and whose name was listed thereupon, Holder knew and approved of what was in it. Upon that, friends and neighbors, you can bet the farm. Nobody, but nobody, in the DOJ files a brief on a case like this without running it up the chain of command and getting complete aircover.
6.13.2009 11:02am
Danny (mail):

At least the republicans who oppose gay marriage are honest about it. They have not given the gay community a kiss on the cheek and then a knife in the back the way the democrats have.

And as a rank political calculation the democrats don't have to and will not do a thing for gay voters. Until they face the real prospect of having gay voters not voting for democrats.


These are our choices? So as not to get stabbed in the back, choose the firing squad? Duplicity or open bigotry?

We are only about 3-4% of the population, so we are not in a position to blackmail the democrats. Our issues will be decided among straight people

A better solution would be simply not to vote at all (I will not) and, if you want equal rights soon, emigration.
6.13.2009 11:03am
Soronel Haetir (mail):
Danny,

As I said, you might be able to argue that maintaining the status quo is done out of animus, but the law as originally enacted didn't even consider the issue that people of the same sex might actually wish to marry. This is different from the Loving situation where even the proponents of the law would admit that the relationship was in fact a marriage, just one contrary to public policy.

The Va law was a positive law attempt to preserve the white race, a significant change from pre-codified marriage practice. Once you are willing to admit that you are in fact after something different, then you will be in a much better position to work toward it. But so long as you insist that it is the same you're going to face resistance.

FWIW, I actually believe the move to no fault divorce and toward marrying the one you love rather than loving the one you marry have been disasterous mistakes. If I could somehow roll back that change I would.
6.13.2009 11:09am
Danny (mail):

but the law as originally enacted didn't even consider the issue that people of the same sex might actually wish to marry.


That was the entire point of the law, logically they could not ban it without considering it a future possibility

(Gays have sued for the right to marry as far back as the 1970s by the way)
6.13.2009 11:13am
martinned (mail) (www):
@Soronel Haetir: If the law says nothing about who gets to marry, other than that is has to be two people, why not give a marriage license to a same sex couple?

If the answer is: because that's not how marriage was traditionally defined/conceived/etc., the next question is: why not?

The answer to that can only be that, had our forefathers considered the issue, they would have said that homosexuality is a disgusting sin that should not be condoned by the state in any way, shape or form.

How is that not the same kind of discriminatory animus as in Loving?

(Although I'm not a fan of that particular analogy, except for legal purposes, i.e. as a legal precedent. Discrimination against blacks was several orders of magnitude worse than discrimination against gays has ever been.)
6.13.2009 11:14am
Duracomm (mail):
Danny,

Money is the mothers milk of politics.

Given the democrats behavior on gay issues I have a hard time seeing how they have earned any further donations from the gay community.

That is not blackmail that is not paying people to stab you in the back. It might help the democrats stop taking the support of gays for granted.

It would not hurt to take a look at the republicans either. Their bigotry may be just as shallow as the democrats support for gay issues is.

Look for republicans at the local and state level who you can agree with on most issues and consider supporting them.

As the situation currently stands neither the republicans or the democrats have anything to gain by supporting issues that are important to gays. Democrats because they don't think gays will ever vote against them. Republicans because they don't think gays will ever vote for them.

Might pay to think about how to change that.
6.13.2009 11:28am
Randy R. (mail):
Solonel: "FWIW, I actually believe the move to no fault divorce and toward marrying the one you love rather than loving the one you marry have been disasterous mistakes. If I could somehow roll back that change I would."

Most people would disagree, because being in a marriage made in hell is, well, hellish. Only recently, places like Ireland and Chile began to allow divorces, and there was great relief because of it. The only real opposition came from the Catholic Church, which opposes divorce under most any circumstances.
Except the US, of course, where annulments are quite common.

But marriage should not be a life sentence. If you prefer the practice of arranged marriages, there actually is a movement afoot in some evangelical circles to do just that. There is a long history of them in India and other parts of the world. I don't see this as a huge movement, but who knows?

In the meantime, the vast majority of people, for better or for worse, choose to marry for love. If that's the criteria, then there is no reason why two gay people in love can't marry. But hey -- I'll consider an arranged marriage to a guy -- can't be any worse than some of the losers I've dated in the past!
6.13.2009 11:30am
Danny (mail):

The Va law was a positive law attempt to preserve the white race, a significant change from pre-codified marriage practice. Once you are willing to admit that you are in fact after something different, then you will be in a much better position to work toward it. But so long as you insist that it is the same you're going to face resistance.


In fact, I think the miscegenation analogy is overused. The ban on gay marriage is different from and perhaps worse than the miscegenation laws were for African Americans and whites. When those laws were in effect, only a vanishingly small percentage of heterosexual couples had an illegal inter-racial relationship and were affected, but 100% of gay relationships are affected by the anti-gay laws, which say in effect that the government won't allow a suspect class to have any successful marriage, period.

The comparison between gay civil rights and black civil rights can only go so far. This comparison is used excessively in the US. We are a sexual orientation, they are an ethnicity. It is easier for a gay to "pass" as a member of the majority than it is for a visible minority, but members of ethnic groups have the support of their families, communities, churches at least which we don't have. We each have our own issues. You could also make a comparison with women's rights. But we don't need the comparisons - we can stand on our own merit.
6.13.2009 11:35am
Danny (mail):
@ Duracomm

I agree 100%
6.13.2009 11:38am
Randy R. (mail):
durracom: "It would not hurt to take a look at the republicans either. Their bigotry may be just as shallow as the democrats support for gay issues is."

You have a good point. Long time ago, I used to belong to the Log Cabin Republicans. Why? Not because I'm a Republican (I find them icky and unnatural) but because I realize that we can only secure our rights long term by getting support from both sides. Putting all our chips in one party is a recipe for getting nothing. Unfortunately, I was right.

To my surprise, however, I found out that even back then, there were a surprising number of Republicans who favor gay rights, many more than you would think. But they couldn't come out and say it for fear of a backlash from the right wingers. Some wanted to vote for us, but couldn't find the courage or the political cover for it. And now we have Dick Cheney in favor of SSM and several other prominent leaders. Joe Bruno, former GOP Senate leader of the NY legislature just came out in favor of SSM, and he opposed it strongly for years.

Now is the time to give them their cover. There is a huge debate going on within the party as to whether they should accept gays or not. The moderate wing is willing and has already done so, but the right wingers won't allow it. If we strengthen the moderates, it will actually help the GOP come back as a legitimate party, and will isolate the neandertals.

Then we would have two parties in favor of gay rights, and that should secure them. The right wingers would have to form their own "Party of God", but they would be marginilized enough that no one would care. Sort of like the Green Party today.
6.13.2009 11:38am
Oren:

Double the size of the Internal Revenue Code to achieve tax equity. If X marries A, B, and C, what is to stop C from marrying W, Y, and Z, and Z from marrying D, E, and F?

Plural marriage is transitive and cannot be enlarged without the consent of (all) the extant parties.
6.13.2009 11:39am
troll_dc2 (mail):
Soronel Haetir raises an interesting point:


Advocates are going to have an incredibly difficult time arguing that opposite sex only marriage law was enacted out of some animus towards homosexuals. The issue wasn't even on the radar when pre-codified tradition became codified law. Unless there is some claim to a right to change in the law, that keeping current law represents emerging animus. That still seems like a difficult argument to succeed with.


I cannot for the life of me figure out how something like a limitation of marriage to people of opposite sexes, which clearly was constitutionally lawful at some point (Baker v. Nelson), could somehow become unconstitutionally restrictive merely because our views of what is socially acceptable have changed. I am not a marriage expert, but I believe that marriage in the United States has ALWAYS involved a man and a woman (at least one of each even in Mormon communities).

Today, we may think that members of the same sex should be allowed to marry (and I agree), but I am opposed to reinterpreting the Constitution merely because of changes in social mores. Legislatures exist to turn those changes into new laws.
6.13.2009 11:40am
Randy R. (mail):
Danny: "We are only about 3-4% of the population"

And yet we have the full backing about virtually the entire new generation, and most of the Generation X'ers. Don't underestimate their power.
6.13.2009 11:40am
pluribus:
Soronel Haetir:

As I said, you might be able to argue that maintaining the status quo is done out of animus, but the law as originally enacted didn't even consider the issue that people of the same sex might actually wish to marry.

Many of the laws now on the books were motivated by animus against gays. DOMA was enacted in the 1990's. It was motivated by a desire to make sure that gays never received the same legal rights in marriage as straights. Proposition 8 passed in 2008. The Arizona Constitution was amended to prohibit gay marriage in 2008. Many states enacted constitutional amendments prohibiting gay marriage within the last ten years. This was done out of gay animus--an effort to make sure that gays were not treated equally with respect to marriage rights granted under both state and federal laws.
6.13.2009 11:43am
cmr:
zuch

Because you ignore the rational bases that it's NOYB and that people shouldn't be prohibited from doing a good [or at least harmless] thing (amongst other such rational bases).


Of course, that's never how law has worked. But you're right: it's NOMB what kind of sex you have or who you have it with. But you're making it my business by making it a political issue and trying shoehorn it into law. This isn't an explicit prohibition; this is a policy question. As a citizen and a voter, it's my business if you're trying to bastardize the laws of our land to your whims.



As for "silly and intellectually dishonest associations", simply stating that somthing is "silly and intellectually dishonest" without actually showing that such is true is hardly likely to convince anyone other than a dedicated Limbot who takes his thoughts predigested to protect a sensitive disposition. But they already agree with you....


Because you've not realized that most of the arguments gays have made to legalize gay marriage have been eschewed both by "Limbots" (whom I've never actually listened to) and now the Obama DOJ brief, I'd say you're pretty disingenuously asking for an explanation for something that can't be explained any further. Sorry.
Which is why such laws generally did not say anything about the sex of the couple who would be entitled to apply for a marriage license. Only when the fundamentalists started getting paranoid about The Gays did most states write such a limitation into the law. (Or even the Constitution.)
6.13.2009 11:46am
cmr:
martinned

Which is why such laws generally did not say anything about the sex of the couple who would be entitled to apply for a marriage license. Only when the fundamentalists started getting paranoid about The Gays did most states write such a limitation into the law. (Or even the Constitution.)


Sorry, I meant to respond to this in the previous post.

It seems like you're offering a baseless rationalization. The laws didn't say anything about the sexes, because it was fundamental to everyone that marriage is intrinsically male/female. Why codify something that no one was going to dispute (according to their thinking).
6.13.2009 11:48am
pluribus:
troll_dc2:

I am opposed to reinterpreting the Constitution merely because of changes in social mores.

Where in the Constitution does it say that same-sex marriage is unconstitutional? A citation to the applicable text will be helpful.
6.13.2009 11:51am
AFJ (www):
Defining marriage as male-female isn't bigoted in the least, that's just cheap name-calling.

The bigotry on this issue is coming almost exclusively from the proponents of redefining marriage.
6.13.2009 11:52am
pluribus:
cmr:

The laws didn't say anything about the sexes, because it was fundamental to everyone that marriage is intrinsically male/female. Why codify something that no one was going to dispute (according to their thinking).

Is it your argument that it is permissible to deny a class of persons equal rights even when the law does not compel the denial, but just because it is "fundamental" to do so? Do you have a cite?
6.13.2009 11:56am
AFJ (www):
"Is it your argument that it is permissible to deny a class of persons equal rights"

This is a non sequitur. No class of persons is being denied equal rights by defining marriage as it's always been defined.
6.13.2009 12:00pm
pluribus:

Danny:
We are only about 3-4% of the population.
Randy R.:
And yet we have the full backing about virtually the entire new generation, and most of the Generation X'ers. Don't underestimate their power.

Property requirements for voting were struck down by white male voters who owned property. Slavery was abolished by white men. Women's suffrage was voted in by men. Racial segregation was struck down by nine old white men in Washington. Voting rights at age eighteen were voted in by people over the age of twenty-one. When it becomes apparent that laws are unjust or unfair or unequal, many people support changing those laws, even if they are not personally benefitted by the change. There is an element of basic fairness that enters into the equation, not just counting numbers.
6.13.2009 12:05pm
Cornellian (mail):
We are only about 3-4% of the population, so we are not in a position to blackmail the democrats. Our issues will be decided among straight people

A better solution would be simply not to vote at all (I will not) and, if you want equal rights soon, emigration.


It's not just about numbers, it's about organization, donations and concentration. That percentage is also about the percentage of the population that is Jewish and yet they are fully protected from discrimination, despite having "their issues" "decided among non-Jewish people." How much influence would Cuban Americans have if they were evenly distributed throughout the country instead of concentrated in a swing state.

The legal status of gay people has progressed enormously over the past 40 years. This is just a speed bump, not a roadblock.
6.13.2009 12:15pm
Danny (mail):

Slavery was abolished by white men. Women's suffrage was voted in by men. Racial segregation was struck down by nine old white men in Washington.


You see, they listened to that little wise Latina on their shoulder :)
6.13.2009 12:15pm
eyesay:
AFJ: "No class of persons is being denied equal rights by defining marriage as it's always been defined."

The Supreme Cout rejected that line of reasoning in Loving.
6.13.2009 12:16pm
pluribus:
troll_dc2:

I am opposed to reinterpreting the Constitution merely because of changes in social mores.

Is it your argument that due process of law and equal protection of the laws and cruel and unusual punishment can never mean anything more than they meant at the time they became part of the Constitution? So if, in 1791, due process of law meant that the death penalty could be exacted for petty theft, that's precisely what it means today. That imprisonment for debt is constitutional today because it was deemed constitutional in 1791? And if in 1868, equal protection of the law meant that anti-miscegenation laws were quite acceptable, or prohibiting married women from transferring property without the consent of their husbands, that's precisely what it means today? If this is your argument, then we have no power today to interpret the terms due process or equal protection. We must merely affirm what our ancestors thought those terms mean a century and a half or two centuries ago.
6.13.2009 12:17pm
AFJ (www):
"The Supreme Court rejected that line of reasoning in Loving."

In no sense is your assertion true or valid.

There is no analogy at all, none whatsoever, between the role of sex in intimate human relationships, and the role of race in those relationships. None.

And to suggest that marriage has always been defined in terms of race, as it has in terms of gender, is complete nonsense.
6.13.2009 12:30pm
Horatio (mail):
Gay marriage has nothing to do with two members of the same sex being afforded the "same protections" as heterosexual couples. It is - and you heard it here first - a method to force acceptance of the "gay lifestyle" as normative behavior upon those who are opposed to homosexuality on religious or moral grounds.

First target via hate crimes legislation - - churches and synagogues that preach that homosexuality is immoral.

Bob and his mother Mary are madly in love and want to get married. Where are the civil rights/gay activists demanding a repeal of all laws against incest?

Sally, Joan, and Melissa are in love and want their relationship legalized. Why the discrimination against them? Come on all you civil rights activists - start the drum beat for polygamy. Or polyandry.

Steve and Sean are gay twins who want to get married - how about it?

Be consistent. If you're in favor of two people of the same sex getting married, why not 3 or more? How dare you discriminate.

Oh..and if you speak out against these relationships, you're mean spirited and hateful. You should be sued and reeducated - mandatory sensitivity training.
6.13.2009 12:54pm
Clayton E. Cramer (mail) (www):

The Loving analogy is ludicrous on its face. There is no comparison at all between the role of sex in intimate human relationships and the role of race in those relationships, none whatsoever.
Especially because prohibitions on interracial marriage are a 17th century liberal innovation--and one originally narrowly written only as a prohibition on performing such marriages. The colonial governments knew full well that they were on shaky ground refusing to recognize Christian marriages (which have never been limited to within race before).

The development of racial theories that justified slavery and white racial supremacy largely developed out of Romantic era justifications of particularism, pre-Darwinian evolutionary theory (yes, there were such), and the need for an intellectual justification for imperialism. This movement was greatly accelerated by the rise of Social Darwinism. That's why the peak of miscegenation laws is the early 20th century, and why the Catholic Church led the battle to get California's Supreme Court to strike down that state's interracial marriage ban.

By comparison, homosexuality as an abhorrent action "the unspeakable crime against nature" goes back to the rise of Christianity in the classical period, and before that, to Judaism. The comparison of a liberal innovation of recent development to a many centuries old objection is absurd. And especially because even in those societies that either tolerated or accepted homosexuality, there was no concept of homosexual marriage, for the simple reason that marriage was about formalizing procreation and inheritance (something of no relevance to homosexuals, who can't have biological children, except by engaging in heterosexual reproduction).
6.13.2009 12:58pm
Clayton E. Cramer (mail) (www):

Be consistent. If you're in favor of two people of the same sex getting married, why not 3 or more? How dare you discriminate.
There's no consistency on this because it isn't about a principle, but about raw use of power.
6.13.2009 1:00pm
Clayton E. Cramer (mail) (www):

The Supreme Cout rejected that line of reasoning in Loving.
Another area where Loving is completely a bad analogy is that Virginia did not simply refuse to recognize the Lovings marriage in DC--it threatened them with prison if they both ever returned to Virginia together. By comparison, if John and Jim decide to get married in Massachusetts, and go back home to Missouri, the reaction will be....crickets chirping.
6.13.2009 1:03pm
troll_dc2 (mail):


Where in the Constitution does it say that same-sex marriage is unconstitutional? A citation to the applicable text will be helpful.


You have missed my point, which is that changes in the way we think should be reflected in legislative revisions of the laws and not by pretezel-rethinking of the Constitution (without amendment). Baker v. Nelson rejected a claim that Minnesota had to recognize gay marriage; it did not say that the state could not do so if it wanted to.
6.13.2009 1:04pm
AFJ (www):
"If you're in favor of two people of the same sex getting married, why not 3 or more? How dare you discriminate. "

If judges can decree that "male = female", surely a few can be found to rule
"1 + 1 = 2, 1 + 2 = 2, 2 + 2 = 2, 1 + x = 2 ..."

We can also redefine the word "couple" to mean "any number of people". Language, like the Constitution, is infinitely malleable, especially if you're wearing a black robe.
6.13.2009 1:11pm
troll_dc2 (mail):
It occurs to me that the only reason why we are discussing same-sex-marriage litigation is that not all of the legislatures have done or are doing (or, now in 30 states, can do) what perhaps a majority of gay people want in terms of marriage. (I use this phrasing because I know that I am not the only gay person who is not excited by the idea of gay marriage.) I know of no court that has struck down gay-friendly legislation on other than procedural grounds; the real problem is with the legislatures and the popular-vote amendments to state constitutions. This is unfortunate, but that's life.
6.13.2009 1:15pm
Danny (mail):
So you guys, Cramer, AFJ, troll, you all studied legal argumentation for years just to produce such "arguments" (all pulling the thread OT by the way) ?

I suggest not taking the bait. Back to the others: is Obama a third Bush term on gay civil rights?
6.13.2009 1:21pm
troll_dc2 (mail):
Danny, I am not sure that I get your point. You clearly don't like Obama and don't think much of the electoral process, but I am in the dark as to what you actually think.
6.13.2009 1:32pm
Cornellian (mail):
As far as the brief writer is concerned, such an anti-miscegenation law probably would be constitutional since it applies equally to all races.
6.13.2009 1:37pm
Clayton E. Cramer (mail) (www):

So if, in 1791, due process of law meant that the death penalty could be exacted for petty theft, that's precisely what it means today.
Yup. As late as 1960, the Delaware Supreme Court upheld a sentence of whipping for burglary.

That imprisonment for debt is constitutional today because it was deemed constitutional in 1791?
Yup. And why did imprisonment for debt go away? Not because of judicial review, but because the legislatures figured out that it was a bad idea. Ditto for state establishment of churches, which continued into the 1830s, and legal prohibitions on Jews holding public office (in Maryland until at least 1809).

And if in 1868, equal protection of the law meant that anti-miscegenation laws were quite acceptable, or prohibiting married women from transferring property without the consent of their husbands, that's precisely what it means today?
And why were only a few states still in possession of miscegenation laws when Loving was decided?

1. A majority of states never had them, and even those that did were not terribly consistent in how they applied. (Some prohibited whites from marrying non-whites; some prohibited blacks from marrying non-blacks; California, if memory serves me correctly, allowed whites to marry Chinese and Japanese, but not Filipinos, who were considered black for reasons that, even in the weird world of miscegenation laws, seem bizarre.)

2. A few lost them because of judicial review (such as California), but many lost them because they went out of favor. Remember that conservative institutions such as the Catholic Church fought to get such laws removed, because it interfered with their Christian mission. Note that the same institutions that fought to allow interracial marriage back then are now fighting to keep SSM bans today.

If this is your argument, then we have no power today to interpret the terms due process or equal protection. We must merely affirm what our ancestors thought those terms mean a century and a half or two centuries ago.
Yup. That doesn't preclude changing the laws--but that requires that you get a majority on your side. It also doesn't preclude amending the Constitution to give a more modern meaning--but that requires a very strong social agreement that this makes sense--something that does not even begin to exist for SSM.
6.13.2009 1:38pm
bearing (mail) (www):
"I don't get it, what is the point of restricting marriage to heterosexuals if not animus against gays? Animus is its raison d'être[.]"

If anyone in this thread really, really believes this, my advice to you is to listen and listen well to what opponents of SSM say their reasons are, and then take their word for it, and then consider how to meet them where they are.

Because you are never going to change anyone's mind unless you understand the real philosophy behind their positions, and stop living in the fantasy world where your opponents only oppose you because they are ignorant or evil. As long as you prefer to think of their arguments as such, you are at a serious rhetorical disadvantage.
6.13.2009 1:51pm
zuch (mail) (www):
Soronel Haetir:
Advocates are going to have an incredibly difficult time arguing that opposite sex only marriage law was enacted out of some animus towards homosexuals.
Oh, really?!?!? Perhaps they did it out of love....

Can we be real here for a second? Please? Why all the animus to something that "neither picks [their] pocket nor breaks [their] leg"?

To me this "the sanctity of marriage" stuff is one of a kind with "the purity of the race". It has all the trappings ... and if you don't believe it, I can trot out photo montages of anti-gay RW protests etc. that are just as hateful in spirit as anything one saw in the Sixties...

Cheers,
6.13.2009 2:04pm
zuch (mail) (www):
Duracomm (mail):
Maybe the gay community should start working with republicans more.

At least the republicans who oppose gay marriage are honest about it.
Kind of like Pat Buchanan's 'logic', eh?

Cheers,
6.13.2009 2:07pm
Brett Bellmore:

Racial segregation was struck down by nine old white men in Washington.


Technically, it was struck down by supermajority votes of both houses of Congress, then ratification by most of the states. Then nine old men in Washington struck it back up for most of a century, before relenting.
6.13.2009 2:07pm
zuch (mail) (www):
Soronel Haetir:
As I said, you might be able to argue that maintaining the status quo is done out of animus, but the law as originally enacted didn't even consider the issue that people of the same sex might actually wish to marry. This is different from the Loving situation where even the proponents of the law would admit that the relationship was in fact a marriage, just one contrary to public policy.
Anti-miscegenation laws were of recent provenance as well, just as are the anti-SSM laws now.

Cheers,
6.13.2009 2:12pm
Clayton E. Cramer (mail) (www):

So you guys, Cramer, AFJ, troll, you all studied legal argumentation for years just to produce such "arguments" (all pulling the thread OT by the way)?
No, not at all. I studied constitutional history and law for a completely different reason. But the U.S. Constitution is not a magic genie's lamp, that you rub the right way and it grants your wishes. It actually means something, irrespective of your desires or mine.
6.13.2009 2:18pm
zuch (mail) (www):
cmr:
[Y]ou're right: it's NOMB what kind of sex you have or who you have it with. But you're making it my business by making it a political issue and trying shoehorn it into law.
Well. when the law specifically prohibits it, then the law needs changing, eh? But how does that make it your business? What iron do you have in the fire here?

Cheers,
6.13.2009 2:19pm
Clayton E. Cramer (mail) (www):

Anti-miscegenation laws were of recent provenance as well, just as are the anti-SSM laws now.
The anti-SSM laws were of recent provenance in many states for the same reason that you don't find many laws regulating wiretapping in 1800, or laws regulating nuclear weapons in 1930.
6.13.2009 2:21pm
troll_dc2 (mail):

Well. when the law specifically prohibits it, then the law needs changing, eh?


That's why we have legislatures.
6.13.2009 2:21pm
Clayton E. Cramer (mail) (www):

Well. when the law specifically prohibits it, then the law needs changing, eh?
No. Maybe you need to accept that there's no particularly good reason to make you happy.
6.13.2009 2:23pm
zuch (mail) (www):
Clayton E. Cramer:
Another area where Loving is completely a bad analogy is that Virginia did not simply refuse to recognize the Lovings marriage in DC--it threatened them with prison if they both ever returned to Virginia together. By comparison, if John and Jim decide to get married in Massachusetts, and go back home to Missouri, the reaction will be....crickets chirping.
The Supreme Court in Loving didn't just strike down the criminal sanctions; they invalidated the civil provisions nullifying interracial marriages as well.

Cheers,
6.13.2009 2:27pm
Clayton E. Cramer (mail) (www):

Anti-miscegenation laws were of recent provenance as well,
Well, if you consider the 17th century to be "recent." There is one big difference:

1. Until the 17th century, no one in Christian Europe would have thought of prohibiting a man and a woman from getting married because of race. Too close family? Yes. One of them wasn't a Christian? Yes. But race? Absurd.

2. Homosexuality was not only a sin "the unspeakable crime against nature," but a capital crime in the Colonial America period. (Seldom prosecuted, because most people had the good sense not to do something public that was a capital crime, and unless there was an unconsenting party, unlikely to come to the attention of the authorities.) Asking for a marriage license for someone of the same sex would get you locked up in insane asylum; if you were having sex, both of you could theoretically go to the gallows. It would be a short honeymoon.
6.13.2009 2:28pm
Clayton E. Cramer (mail) (www):

The Supreme Court in Loving didn't just strike down the criminal sanctions; they invalidated the civil provisions nullifying interracial marriages as well.
I can't argue against it. It is a legitimate argument that the 14th Amendment was intended to prevent discrimination based on race. Care to show me the arguments from 1868 that the 14th Amendment was going to prevent discrimination against homosexuals?

There were immediate attempts to apply the equal protection clause to sex; for example, attempts to overturn state laws that prohibited women from being lawyers. The Supreme Court ruled (correctly) that there was no evidence that anyone intended the 14th Amendment to strike down such laws.
6.13.2009 2:32pm
zuch (mail) (www):
Clayton E. Cramer [to me]:
Maybe you need to accept that there's no particularly good reason to make you happy.
Actually, it's no real skin off my nose. I'm already happily married (I even posted a link to my wedding pictures a while back on another thread here). I just think that others should have the same opportunity. I don't understand why you have such a bug up your butt about preventing it....

Cheers,
6.13.2009 2:34pm
zuch (mail) (www):
Clayton E. Cramer:
It is a legitimate argument that the 14th Amendment was intended to prevent discrimination based on race....
... which is why it stated explicitly that racial discrimination was prohibited ... oh ... waiddaminnit....

Cheers,
6.13.2009 2:39pm
Clayton E. Cramer (mail) (www):

I just think that others should have the same opportunity. I don't understand why you have such a bug up your butt about preventing it.
1. For the same reason that I would object to a law that sought to declare that alcoholism isn't a problem, but an alternative lifestyle.

2. There's no particularly strong reason for it. The only surviving reason why the government cares about marriage is child custody and inheritance issues. (Those straights who don't, or can't, have children, are free riders on the institution.) Homosexual couples can't produce biological children.
6.13.2009 2:41pm
Clayton E. Cramer (mail) (www):

... which is why it stated explicitly that racial discrimination was prohibited ... oh ... waiddaminnit....
Unlike homosexuality.
6.13.2009 2:42pm
bearing (mail) (www):
" I can trot out photo montages of anti-gay RW protests etc. that are just as hateful in spirit as anything one saw in the Sixties... "

Hate exists, yes. And yet most of the people you need to convince are not in your photo montages. I repeat: You are at a serious rhetorical disadvantage if you go on assuming that the reason your opponents oppose you is because they are ignorant or evil.

I mean, do you think it is smart to hold incorrect ideas about what your opponents think? It might make you feel smart, but I've got news for you, it's not the same thing.

I'm trying to help you out here, although I'm not sure why I want to.
6.13.2009 2:44pm
Clayton E. Cramer (mail) (www):

To me this "the sanctity of marriage" stuff is one of a kind with "the purity of the race". It has all the trappings ... and if you don't believe it, I can trot out photo montages of anti-gay RW protests etc. that are just as hateful in spirit as anything one saw in the Sixties...
Since at least one of those signs seems to be the Rev. Fred Phelps operations, there's a serious problem of how significant this to the movement. Remember that Phelps is actually a liberal--with NAACP awards for his work in fighting racial discrimination before Phelps was disbarred. (And the pictures of Al Gore with Phelps in 1988, whoring after the Democrat vote in Kansas, are pretty entertaining.)
6.13.2009 2:53pm
PersonFromPorlock:
zuch (mail) (www):

In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride...."

Nowadays, we call that "preserving diversity."
6.13.2009 2:54pm
Oren:


I cannot for the life of me figure out how something like a limitation of marriage to people of opposite sexes, which clearly was constitutionally lawful at some point (Baker v. Nelson), could somehow become unconstitutionally restrictive merely

Because the Constitution incorporates those changing facts by reference in the present tense. The 14A, for instance, does not guarantee the process that was due, it guarantees process that is due.

If the framers had intended to codify the particular standards at the time of ratification (and amendment), they would have done so. They chose not to write those terms in the past tense, instead writing in the present for precisely the reason that limiting concepts as: unreasonable search and seizure (4A), due process (5A/14A), just compensation (5A) are intrinsically relative to the societal norms under which they are interpreted.

I can suggest alternative language for an amendment if you want to fix that flaw, although I doubt you'll get any real support for it.
6.13.2009 2:57pm
Oren:

For the same reason that I would object to a law that sought to declare that alcoholism isn't a problem, but an alternative lifestyle.

Such a law would be surplusage at any rate, roughly on par with laws naming post offices for sports figures and official state birds.

Now, if a law came around abrogating alcoholics' right to vote or start a business ...
6.13.2009 3:01pm
troll_dc2 (mail):
Oren, so please explain to me why Baker v. Nelson is no longer good constitutional law.
6.13.2009 3:04pm
troll_dc2 (mail):

Now, if a law came around abrogating alcoholics' right to vote or start a business ...



So I take it that you see alcoholics as a protected class? Would you apply strict scrutiny to laws regulating them?

This causes me to wonder. Under your formulation of rights, is every possible conceivable group a protected class?
6.13.2009 3:07pm
Clayton E. Cramer (mail) (www):

The 14A, for instance, does not guarantee the process that was due, it guarantees process that is due.
And how do you determine what is current due process. In Loving, they used the direction of motion to strike down miscegenation bans. But by that standard, the child rape capital crime case last term would have been decided in the opposite direction. Oh, I know, you could look at what a majority of the state legislatures have decided. But in 1960, that would have meant that homosexuality was a criminal offense--even state made it illegal.

There's consistent principle being applied by homosexuals on this because a consistent principle would include polygamy, bestiality, and all sorts of other icky stuff--or would allow states to leave marriage as "one man, one woman."
6.13.2009 3:08pm
Clayton E. Cramer (mail) (www):
Type slower!

EVERY state made it illegal.

There's NO consistent principle.
6.13.2009 3:10pm
Laura Victoria (mail):
Back on topic (although the discussion on the larger point has been interesting), good points were made about working with Republicans on this. Clinton and Obama are a real double whammy of a wake up call on democratic hypocrisy. Plus, there are a lot of gays that support fiscal restraint and more judicial protection of economic liberties, as well as civil liberties.

There is no question this was intentional by Obama. He has been a complete liar on civil liberties issues across the board. He excoriated the Bush administration during the campaign on detainee and WOT policies, and now has adopted every single one. The man is a dangerous, arrogant and grandiose charlatan with seemingly no more intellectual grounding than maximizing executive power.
6.13.2009 3:13pm
AFJ (www):

To me this "the sanctity of marriage" stuff is one of a kind with "the purity of the race".


You can't possibly really believe such a nonsensical assertion, can you? That was just a rhetorical flourish, right?
6.13.2009 3:34pm
troll_dc2 (mail):

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part start?




Certainly not before he can be assured that whatever he supports will get at least 60 votes in the Senate. Perhaps we will see some stuff in Year Three if, as seems likely right now, the Democrats pick up some Senate seats in 2010.
6.13.2009 3:35pm
M N Ralph:

My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations.


Riiight. It's not like conservatives are cynically trying to forment division among progressives is it? No way that was the point.
6.13.2009 3:39pm
Oren:

So I take it that you see alcoholics as a protected class? Would you apply strict scrutiny to laws regulating them?

First of all, Clayton was talking about political, not legal opposition (as I read it). So, as a political matter, I would oppose restricting the right of alcoholics to vote.

Second, the right to vote is so fundamental to democracy that laws restricting the franchise are usually subject to heightened scrutiny anyway, regardless of who is targeted.


This causes me to wonder. Under your formulation of rights, is every possible conceivable group a protected class?

When the government make distinctions that are unrelated to legitimate exercise of their power, there is intermediate judicial scrutiny. This has been settled constitutional law for a little while now.

The question is not whether the group is protected, the question is whether there is reason behind the way the legislature made the classification.
6.13.2009 3:42pm
Oren:

And how do you determine what is current due process.

By the exercise of reasoned judgment.

To believe that this judicial exercise of judgment could be avoided by freezing `due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines, and not for judges

Rochin v. California



Due process has not been reduced to any formula; its content cannot be determined by reference to any code. [505 U.S. 833, 850] The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has, of necessity, been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

Poe v. Ullman


In Loving, they used the direction of motion to strike down miscegenation bans. But by that standard, the child rape capital crime case last term would have been decided in the opposite direction.

I happen to agree with you that Kennedy v. LA was wrongly decided. As was it's progenitor, the name of which I cannot remember.
6.13.2009 3:48pm
Oren:

Oren, so please explain to me why Baker v. Nelson is no longer good constitutional law.

I never asserted that it isn't -- it's still good law.

As a policy matter, it would be a disaster for gay marriage activists to get a reversal anyway. I do not advocate for the judicial solution to this particular problem -- look at CA -- the legislature had passed SSM (Arnold vetoed it) but it would have passed soon enough. Instead, it will be 5-10 years before prop 8 is reversed and SSM legalized.
6.13.2009 3:51pm
geokstr (mail):

Clayton E. Cramer:
But the U.S. Constitution is not a magic genie's lamp, that you rub the right way and it grants your wishes.

Sure it is. I heard it right here on this very forum many times that all intelligent people, without exception, know that the Constitution means precisely what liberals want it to mean.

First the verdict, then the...
6.13.2009 3:51pm
troll_dc2 (mail):

First of all, Clayton was talking about political, not legal opposition (as I read it). So, as a political matter, I would oppose restricting the right of alcoholics to vote.

Second, the right to vote is so fundamental to democracy that laws restricting the franchise are usually subject to heightened scrutiny anyway, regardless of who is targeted.



I don't think that he was limiting his statement to political opposition. He also did not limit his remarks to voting.

Apart from the ADA (and corresponding state laws), why can't the government decide not to allow alcoholics to start a business? You would respond that the government would have to show that this prohibition is reasonable. But in putting any burden on the government, you are stating, are you not, that alcoholics have rights apart from any legislation and even though the legislature decided to the contrary? Is this yet another example of unconstrained substantive due process at work? If so, is there hope for pediphiles (sp?), heroin users, polygamists, and members of other despised groups? (I am being outrageous here, but I am trying to draw out the principle at work.)
6.13.2009 3:59pm
M N Ralph:

He could have also had someone from the community review to brief before it was filed to see if there were any gratuitous insults that should be avoided, or arguments made that could be damaging to gay rights in the future.


This idea seems highly questionable to me. The Justice Department should not be in the habit of inviting outside interest groups to overseeing their briefs. Such groups are not their clients. How would you feel if the Bush required Justice Department lawyers to let the Chamber of Commerce vet their briefs in big business law cases or for Dobson to review briefs in cases relating to family issues? Bad idea.
6.13.2009 4:03pm
Danny (mail):


Because you are never going to change anyone's mind unless you understand the real philosophy behind their positions, and stop living in the fantasy world where your opponents only oppose you because they are ignorant or evil. As long as you prefer to think of their arguments as such, you are at a serious rhetorical disadvantage.



Well if I wanted to descend to the rhetorical level of some people on these threads, I could have compared my opponents to child molesters or polygamists, or (like Cramer) actually call them such. Aren't they at a rhetorical disadvantage? Also someone from the 97% who has equal rights and power using such language against the 3% who doesn't have equality is bit different from the reverse, wouldn't you say? After all, for heteros, the SSM debate is an intellectual pursuit, for me it has real-life consequences.

I am not out to change anyone's mind. I'm not a politician. I am engaging in a debate about the law and reacting to arguments as I see them. For the record I don't view most people who are against gay rights as evil or motivated by the sheer desire to harm. I think there is a core hard right that has an existential hatred of gays and desire to harm them, and that is not amenable to argumentation. But most anti-SSM are moderate, even though their talking points are themselves ultimately rooted in religion, or aesthetics, or mistaken assumptions, or else animus, perhaps unbeknownst to their repeaters. Since I know the reality of SSM it is easier for me to see the discrepancies. And aren't we all susceptible to "memes", you know repeating ideas without fully grasping their intellectual history or worth? We can't be experts in everything.

Since I don't believe in the devil with horns or a pitchfork, I am not sure what "evil" is if not a sort of radical ignorance with regard to one's fellow man, or else extreme unrepressed animus. Hannah Arendt wrote about the "banality of evil" while observing the trial of a Nazi bureaucrat - the horror of it was that someone who was just nice and normal and obviously not a monster could become a "desk murderer", someone who just casually stamps paperwork resulting in the death of thousands of people elsewhere. Maybe to him they were just names on a page, but he was participating in a machinery created by people who knew exactly what they were doing. Not to compare the Nazis with the right-wing America, just saying that you can't divide people into strict roles like perpretrator/"evil" and "innocence"/victim.

I don't think that rights of a suspect class work well as an equal time he-said/she-said debate, the way most other moral debates do. I think that on this topic one side is objectively morally right and the other wrong. The religionists would say the same, which is why these debates are so emotional.

I actually think opposition to gay rights works best and is most understandable when expressed as pure animus rather than elaborated into an ideology, or justified with non sequiturs. The DOJ brief (returning to the topic) mentioned that it would be cheaper if they discriminated against gays. I can understand someone who thinks gays are gross or weird or against the Bible, but how sick is it to write in a legal document that it is OK to discriminate against people to save a little money? Racism or fear of the other or animus are, far from diabolical, a part of the human experience of living in discrete communities (they become destructive if we give them free reign). But codifying these feelings into "rational" arguments is almost creepier.
6.13.2009 4:06pm
Bob VB (mail):
Again, lawyers talking like marriage was something people just made up, ignoring that humans naturally marry - they do it in spite of there being a religious rite or civil contract, not because of it.

Some marry men, some marry women and all that's being acknowledging is that all citizens could potentially marry men or women and remove the special right that reserves the license of the civil contract to just some of the citizens that do.
6.13.2009 4:09pm
pluribus:
AFJ:

The Loving analogy is ludicrous on its face. There is no comparison at all between the role of sex in intimate human relationships and the role of race in those relationships, none whatsoever

Your effort to find a principled distinction between interracial and same sex marriages is, to use your own phrase, ludicrous on its face. The marriage of Mr. and Mrs. Loving was not plantonic. The Virginia authorities broke into their bedroom and found them sleeping together. Their hope was to catch them in a sexual act, but merely finding them in bed together was enough to justify the arrest. And you claim that there was no role for sex in their intimate human relationship? You can make an assertion here, but you cannot make us accept it. The interracial marriage of Mr. and Mrs. Loving was just as sexual as the same-sex marriage of any of the gay couples who recently married in California.
6.13.2009 4:15pm
zuch (mail) (www):
Clayton E. Cramer:
[zuch]: I just think that others should have the same opportunity. I don't understand why you have such a bug up your butt about preventing it.
1. For the same reason that I would object to a law that sought to declare that alcoholism isn't a problem, but an alternative lifestyle.
Huh? Would you be in favour of a law criminalising alcoholism? Or forbidding it? No one is asking for a law saying that homosexuality isn't a "problem" (and such a law would be silly in any case). What we're saying as that we shouldn't have laws that discriminate against gays and lesbians. And I'd note that homosexuality is not a disability like alcoholism.... Homosexuality is an orientation -- as is bigotry, but homosexuality is not odious as bigotry is.
2. There's no particularly strong reason for it....
Says you. But if someone told you you couldn't marry, I imagine you might take umbrage ... albeit this may be only a hypothetical.
... The only surviving reason why the government cares about marriage is child custody and inheritance issues....
Nonsense. I'm guessing you're not married.
... (Those straights who don't, or can't, have children, are free riders on the institution.) Homosexual couples can't produce biological children.
"Free riders", eh? Imagine the presumptuousness.... demanding that 'marriage penalty'. Let's fix that immediately, seeing as we're in such a budgetary crunch. Lead the way: Demand that the gummint allow only registered breeders to marry, and dissolve all those sham weddings. That's a winning platform, fershure.

Cheers,
6.13.2009 4:16pm
zuch (mail) (www):
bearing:
And yet most of the people you need to convince are not in your photo montages.
And most of the racists down south weren't at the schoolhouse steps spitting at the Little Rock girls.

The good news is that homophobia is waning ... as is racism. The younger generation really are a bit smarter on this than their parents....

Cheers,
6.13.2009 4:19pm
M N Ralph:

If the president has independent authority to interpret the constitution, as evidenced by the presidential oath clause and the common practice of attaching signing statements discussing constitutionality to statutes, how can he be compelled to defend the constitutionality of a law he doesn't think is constitutional?


Not sure how or why it got to be the standard, but there seems to be a pretty generally accepted standard that the executive defends the constitutionality of laws duly passed if it is not frivolous to do so. So, at least traditionally, the question is not whether Obama thinks DOMA is constitutional; the question is whether Obama thinks DOMA is arguably constitutional. If the answer is "yes" (and it's hard to argue otherwise given all the court opinions upholding its constitutionality), then Obama is obliged to defend it.

It seems to me that some gay rights activists want Obama to ignore the rule of law in pursuit of gay legal rights. Ironic.
6.13.2009 4:19pm
AFJ (www):

"Well if I wanted to descend to the rhetorical level of some people on these threads, I could have compared my opponents to child molesters or polygamists..."


Some people are offended by being compared to pedophiles or polygamists. Other people are offended by the comparison or equating of same-sex and opposite-sex relationships, or the redefinition of marriage. Who decides which comparisons are legitimate, and which are offensive? You?



"...someone from the 97% who has equal rights and power using such language against the 3% who doesn't..."



This is untrue. You as an individual have the same rights as every other American. There is no right to have marriage redefined.
6.13.2009 4:24pm
zuch (mail) (www):
bearing:
You are at a serious rhetorical disadvantage if you go on assuming that the reason your opponents oppose you is because they are ignorant or evil.
I calls 'em as I sees 'em. Sometimes it's best to simply address reality.
I mean, do you think it is smart to hold incorrect ideas about what your opponents think?
I know what they think. They don't always say it so gud themselve, though (albeit the pictures do the job for them).

I've been in this world long enough to know that some folks are just beyond reason (see, e.g., the YECers, the 9/11 conspiracists, and the "Apollo was faked" nutcases). In such cases, it's best to just work around them. And that we'll do.

Cheers,
6.13.2009 4:24pm
Randy R. (mail):
Ralph: "The Justice Department should not be in the habit of inviting outside interest groups to overseeing their briefs. Such groups are not their clients. How would you feel if the Bush required Justice Department lawyers to let the Chamber of Commerce vet their briefs in big business law cases or for Dobson to review briefs in cases relating to family issues? Bad idea."

I understand. However, gay groups are certainly a part of the United States, and the brief is supposed to represent the United States. Additionally, the official policy of the Obama Administration (or at least until recently) is to overturn DOMA and provide for more rights for gays. IF that's the policy, it would make sense to get someone who knows something about gay rights to review it to make sure the brief is consistent with the Administration's goals. I would have been happy if they had an attorney experienced in gay rights issues on staff vet the brief.
6.13.2009 4:27pm
zuch (mail) (www):
AFJ:
[zuch]: To me this "the sanctity of marriage" stuff is one of a kind with "the purity of the race".
You can't possibly really believe such a nonsensical assertion, can you? That was just a rhetorical flourish, right?
I was serious. As I'm sure you were. Let's see if, given that, we can understand one another at the very least.

Cheers,
6.13.2009 4:27pm
pluribus:
Danny:

I actually think opposition to gay rights works best and is most understandable when expressed as pure animus rather than elaborated into an ideology, or justified with non sequiturs.

You're right, Danny. What we are seeing here today is pure animus masked by convoluted logic and self-important invocations of ideology. Many people who enjoy privileges conferred by the laws are fiercely resistant to any suggestion that their privileges should be extended to others. They deserve those privileges, they say, and the others don't, because they are better people. Fortunately, this attitude is not all-pervasive. The US Supreme Court judges who decided Lawrence and Romer were all heterosexuals; the State Supreme Court judges who decided the same sex marriage issue in California and Iowa were all heterosexuals; and the overwhelming majority (if not all) of the legislators in states such as New Hampshire who have voted in favor of gay rights are also heterosexuals. Those who resist sharing their privileges are a stubborn and determined lot; but there are others who are willing to listen to pleas of justice and equality and help take down the barriers. In the end, the barriers will come down because justice and equality demand it. But some will resist right up to the end. It is a story told over and over in history.
6.13.2009 4:30pm
troll_dc2 (mail):
Perhaps this is off topic, but I think that a lot of what underlies the debate here and elsewhere is the fog over what constitutional rights gay people actually have. Everyone agrees that we have the same general rights as everyone else to express ourselves and to engage in normal day-to-day activities. The problems arise when laws (1) give rights because of non-sexual-orientation characteristics (including to gay people with those characteristics) but say nothing about sexual orientation--such as marriage laws, anti-discrimination legislation, and hate-crime legislation and (2) affirmatively treat gay people differently--such as DOMA, DADT, and immigration and tax laws that build on federally limited marriage concepts.

The Constitution has become a taffy-pulling contest. Romer v. Evans involved a state constitutional amendment that would have authorized "open season" on gay people; three justices would have upheld it (and maybe Alito would too), and the majority opinion never spelled out the standard of review if I recall. There was also a case that affirmed the rejection of a state law banning gay teachers from Oklahoma schools; the vote was 4-4. Gay rights groups are upset with restrictions on mariage, but if the newly filed California case challenging Prop. 8 gets to the Supreme Court--and it will if the Ninth Circuit has anything to say about the matter--will gay marriage suddenly become mandatorily allowable in every state (at least until the Constitution gets amended), or will the Court back off and decide that sexual orientation is not like race, sex, or abortion?

One way or the other, we will get clarity, but do we really want it, at least at this time?
6.13.2009 4:30pm
zuch (mail) (www):
Clayton E. Cramer:
Remember that Phelps is actually a liberal...
... and David Duke is a Republican. At least he calls himself one. Actually, come to think of it, the Republican voters actually elected him and once even put him up as the Republican gubernatorial candidate for Louisiana.....

Cheers,
6.13.2009 4:31pm
Randy R. (mail):
Horatio: "Gay marriage has nothing to do with two members of the same sex being afforded the "same protections" as heterosexual couples. It is - and you heard it here first - a method to force acceptance of the "gay lifestyle" as normative behavior upon those who are opposed to homosexuality on religious or moral grounds."

Actually, we didn't hear it from you first. But here is something that perhaps you might hear for the first time:

1) Gay relationships are indeed normal and have been ever since the beginning of time, and in every culture, and they also exist in most species. (Most recently, yet another gay penguin couple have adopted an egg abandoned by it's hetero parents in the Berlin zoo. The chick has been hatched and is doing fine).

2) The 'gay lifestyle' that you presume to know all about doesn't exist. My lifestyle, and I'm gay, pretty much consists of going to work every day, making dinner for me and my boyfriend from time to time, and feeding the cat daily. In other words, it's pretty much like your lifestyle. And the fact that you don't know that means that you know nothing about gay people at all, except what you hear from anti-gay screeds.

3) In the states where gays are now allowed to marry, people like you are free to ignore the wedding invitations, and are free to say 'Well, you're not really married". No one expects wedding presents from you, either. In short, no one is forced to do anything at all. Perhaps you could contact some of your friends in Massachusetts and see how they are surviving amidst the several thousands of gay couples that exist there. I'm sure you'll find their marriages and their hatred of gays fully intact.
6.13.2009 4:35pm
zuch (mail) (www):
PersonFromPorlock:
Nowadays, we call that "preserving diversity."
You can tread that path yourself. I'll let you know when (if ever) I subscribe to such a thing. FWIW, one friend, seeing my family Christmas pictures, said, "What're you trying to do, integrate the whole planet"

Cheers,
6.13.2009 4:35pm
Bob VB (mail):
(1) give rights because of non-sexual-orientation characteristics… such as marriage laws…

What are you talking about? In most states their statues or their very constitution DEMANDS a particular sexual orientation if you stop and think about what that term really means.

The reality is that an citizen could potentially naturally marry either gender regardless of their gender - requiring a particular sexual orientation denies that some citizens who are married don't fit that sexual orientation.

If some citizens can license the civil contract with their male spouse why shouldn't all citizens be able to do the same? That's the inequality that having the civil contract limited by sexual orientation of the cosigners causes.
6.13.2009 4:36pm
AFJ (www):
pluribus:


"And you claim that there was no role for sex in their intimate human relationship?"



I didn't say anything like that, or even close to it. (Perhaps my use of the word "sex" confused you. I used the word as a synonym for "gender" not for "intercourse")


In any intimate relationship - yours, mine, the Loving's, gay, straight, or other - sex and race do not play the same role. They do not play a similar role. For pretty much all humans, the gender of their significant other is essential to the relationship. I don't know of anyone for whom that is not true. But for most people, the race of their significant other is not essential. Inter-racial relationships are common. There's simply no comparison.
6.13.2009 4:40pm
troll_dc2 (mail):

The reality is that an citizen could potentially naturally marry either gender regardless of their gender - requiring a particular sexual orientation denies that some citizens who are married don't fit that sexual orientation.

If some citizens can license the civil contract with their male spouse why shouldn't all citizens be able to do the same? That's the inequality that having the civil contract limited by sexual orientation of the cosigners causes.


I am in favor of gay marriage when it is adopted by a legislature.
6.13.2009 4:40pm
Kev (mail) (www):
Thus, the law absolutely does prohibit gays from marrying, unless I'm mistaken and straights like you, zuch, are now marrying for more "traditional" reasons other than love.


People have married for many reasons besides love over the centuries: Money, social standing, the parents arranged it, etc.
6.13.2009 4:43pm
Bob VB (mail):
[b]I am in favor of gay marriage when it is adopted by a legislature.[/b]
So you are saying that if the legislature passed a law restricting the sexual orientation of married couples who could license the civil contract to same gender ones it would be just fine with you?

Interesting.
6.13.2009 4:43pm
troll_dc2 (mail):

[b]I am in favor of gay marriage when it is adopted by a legislature.[/b]
So you are saying that if the legislature passed a law restricting the sexual orientation of married couples who could license the civil contract to same gender ones it would be just fine with you?



I would seek to have the legislation repealed. Actually, in another area of law I have advocated that one way to get employment discrimination coverage for gays is for a gay or gay-sympathetic employer to fire a straight employee on the basis of his sexual orientation. That would be sure to get the legislature's attention!
6.13.2009 4:47pm
Kev (mail) (www):
Solonel: FWIW, I actually believe the move to no fault divorce and toward marrying the one you love rather than loving the one you marry have been disasterous mistakes. If I could somehow roll back that change I would.

Randy R., in response: Most people would disagree, because being in a marriage made in hell is, well, hellish. Only recently, places like Ireland and Chile began to allow divorces, and there was great relief because of it. The only real opposition came from the Catholic Church, which opposes divorce under most any circumstances.
Except the US, of course, where annulments are quite common.


I think you two were talking past each other here; it appears that Solonel wasn't saying that all divorce is bad, just the no-fault variety. Unless I'm mistaken, in the times before no-fault divorce, people who were being cheated on or were victims of domestic violence could still easily end that marriage. What's different now is that it's easier to get out of a marriage where "I've changed" or "you've changed" or "I've fallen out of love with you" without having to expend a little elbow grease to try and save the marriage. I'm in agreement with Solonel that the latter has, by and large, been bad for our society.
6.13.2009 4:49pm
Bob VB (mail):
I answered to quickly to the previous one - you were talking of constitutional rights that didn't involve sexual orientation and marriage most definitely does. The only way it doesn't is to pretend that the civil contract of marriage IS marriage which hopefully few people believe no matter what side of the issue they are on. Limiting a right to not the citizen but the gender orientation of the couple ignores that some citizens very much do marry people of their own gender. If our constitutional rights are individual how can that be that some who marry a particular gender can license the contract and other law-abiding citizens who marry the exact same gender can not?
6.13.2009 4:53pm
M N Ralph:

I suggest not taking the bait. Back to the others: is Obama a third Bush term on gay civil rights?


Impossible to answer that question until 2012.
6.13.2009 4:58pm
troll_dc2 (mail):
Bob VB, want to try again? I am not grasping what you are trying to say. If you are asking whether a legislature could allow only same-sex marriages, with everyone else relegted to civil unions, I would reply that I cannot think of a reason why not (since ridiculousness is not a reason).
6.13.2009 4:59pm
M N Ralph:

Additionally, the official policy of the Obama Administration (or at least until recently) is to overturn DOMA and provide for more rights for gays.


Overturn DOMA legislatively or through the courts? I've never heard or read anything where Obama has taken the position that DOMA is unconstitutional and have always assumed his position is that DOMA should be legislatively repealed.
6.13.2009 5:03pm
troll_dc2 (mail):

Overturn DOMA legislatively or through the courts? I've never heard or read anything where Obama has taken the position that DOMA is unconstitutional and have always assumed his position is that DOMA should be legislatively repealed.



That has been my assumption too, but the provision purporting to limit the full-faith-and-credit clause could well get litigated in a private lawsuit before Obama pronounces himself prepared to act.
6.13.2009 5:09pm
Bob VB (mail):
I was pointing out your statement

(1) give rights because of non-sexual-orientation characteristics

was incorrect because marriage explicitly does have a sexual orientation requirement in that it has an orientation of the sexes participating required. It is the requirement OF a sexual orientation that cause the problem since the result is allowing some genderphilic citizens able to license the contract with their spouse and others not.

Its an answer to all the 'opens doors' nay sayers - this is about letting all genderphilic citizens doing the same thing, removing special rights not creating new ones.
6.13.2009 5:09pm
troll_dc2 (mail):
Let me try again. I wrote:


The problems arise when laws (1) give rights because of non-sexual-orientation characteristics (including to gay people with those characteristics) but say nothing about sexual orientation--such as marriage laws, anti-discrimination legislation, and hate-crime legislation and (2) affirmatively treat gay people differently--such as DOMA, DADT, and immigration and tax laws that build on federally limited marriage concepts.


What I meant by (1) was instances in which the legislation makes no reference to sexual orientation. In retrospect, marriage should not be there. But traditionally it does not quite fit within (2) either, although some states have now, I believe, rewritten their marriage laws to emphasize who cannot marry each other. So perhaps there should be a (3) for marriage (and the laws that incorporate state marriage rules so long as those rules fit the federal concept of marriage).
6.13.2009 5:26pm
pluribus:

The problems arise when laws (1) give rights because of non-sexual-orientation characteristics.

I've heard about "sexual orientation." I could perhaps imagine what a "sexual orientation characteristic" might be--though I'm not very sure. When you speak of "non-sexual-orientation characteristics," however, you completely lose me. Is there a glossary I might consult as an aid to understanding this point, which I suppose is quite profound? (Hint: plain language usually enhances communication. And vice versa.)
6.13.2009 5:42pm
M N Ralph:

That has been my assumption too, but the provision purporting to limit the full-faith-and-credit clause could well get litigated in a private lawsuit before Obama pronounces himself prepared to act


That provision of DOMA doesn't make any sense to me. Either states must recognize SSMs from other states under the full faith and credit clause, in which case the DOMA provision is unconstitutional, or states already can decide for themselves whether to recognize SSMs from other states, in which case the DOMA provision is superfluous.
6.13.2009 5:47pm
troll_dc2 (mail):
pluribus, is it not clear that the phrase refers to legislation that does not address sexual orientation directly or indirectly? The most common examples are anti-discrimination laws that mention race, national origin, sex, religion, age, and disability but are silent about appearance, sexual orientation, gender identity, weight, and so forth.
6.13.2009 5:51pm
troll_dc2 (mail):

That provision of DOMA doesn't make any sense to me. Either states must recognize SSMs from other states under the full faith and credit clause, in which case the DOMA provision is unconstitutional, or states already can decide for themselves whether to recognize SSMs from other states, in which case the DOMA provision is superfluous.



It may not make any sense legally or logically, but it certainly made sense politically at the time.
6.13.2009 5:53pm
pluribus:
AFJ

I didn't say anything like that, or even close to it. (Perhaps my use of the word "sex" confused you. I used the word as a synonym for "gender" not for "intercourse").

On the contrary, you did say something like that, and quite close to it. Any confusion results from your choice of words, not mine. Your animus is showing. (By the way, "sex" and "intercourse" are not synonyms, Bill Clinton's finger waving to the camera to the contrary notwithstanding. But perhaps you were confused on that point, as you seem to be on so many other issues here.)
6.13.2009 6:01pm
Cornellian (mail):

That provision of DOMA doesn't make any sense to me. Either states must recognize SSMs from other states under the full faith and credit clause, in which case the DOMA provision is unconstitutional, or states already can decide for themselves whether to recognize SSMs from other states, in which case the DOMA provision is superfluous.


It is the latter. The idea that FF&C forces states to recognize marriages created in other states was always a strawman designed for political fundraising. States have always been free to have different rules for who can marry and do so even today.
6.13.2009 6:20pm
troll_dc2 (mail):

States have always been free to have different rules for who can marry and do so even today.


But did they not have to accept a divorce that was valid in the state in which it was issued, even if that divorce was not possible under its own laws?
6.13.2009 6:31pm
Smoothie (mail):
I'd think the people here would be smart enough to see that a DOJ's lawyer's, especially one in the lower ranks here, job is to defend the law regardless of Obama's "feelings" on the subject. There is no consideration as to what policy "goals" the administration would have regarding defending the law. If the opposite were true, the president's DOJ could simply refuse to defend laws the administration did not like and let courts invalidate them. Anyone with even a general knowledge of the DOJ knows all of this.

Moreover, the absurdity of the anti-gay type arguments used to try to support the law are not evidence of the lawyer or administration's animus on gays. Rather is is a function on how absurd this law is. That was the best legal argument to uphold it.

Stop trying to use people's lack of understanding of how the DOJ works as a way to score political points against the administration. There are plenty of legitimate points to make if you want to do that.
6.13.2009 8:43pm
PersonFromPorlock:
zuch:

FWIW, one friend, seeing my family Christmas pictures, said, "What're you trying to do, integrate the whole planet"

Me too. I just find it hysterically funny that higher education now insists that diversity is an essential part of their program when the only university that was (formerly and unintentionally) working to preserve the possibility of diversity was Oral Roberts.
6.13.2009 8:47pm
J Vidal (mail):
I, like many, am not too pleased with this decision but I wonder if the Obama team is arguing forcefully on purpose to force the court to rule on the merits.

In other words, Obama want's to knock out DOMA but doesn't want the flack or knows he doesn't have the votes to do it. So he challenges the opposing brief with all the arguments in hopes that the Court sees it in the merits, knocks it down or limits it.
That way he gets the result he wants without having to compromise politically.

Make sense?
6.13.2009 9:35pm
AFJ (www):
pluribus,

Sorry, your inability to read and comprehend standard English is not my fault.
6.13.2009 10:30pm
Danny (mail):
O can't have it both ways.. either you stand up for gay rights and get a bunch of flack from the right or you don't and you get a little bit of flack from the left... it's a controversial issue, there's not an easy way out. You have to have balls and follow your principles, not go by the latest poll numbers like the other sleazy Dems. That's why I picked O over Hillary, because I thought he had some guts. But who cares at this point, they are all the same. It actually feels liberating to be outcast by both American parties - I hated feeling forced to vote for those backstabbing scumbags because otherwise it would be the psycho cowboy or the Jesus Freak Avon lady from Alaska. Now we've had a term of Obama, we have saved our national honour. So I've done my duty as a voter and can now confidently let USA politics go and say "a pox on both their houses".
6.13.2009 10:42pm
Danny (mail):
I meant honor not "honour", what a hell of a typo
6.13.2009 10:44pm
zuch (mail) (www):
Danny:

"Honour" is acceptable. It may serve you in good stead should Obama continue his present course and you decide to do what's necessary.

Cheers,
6.13.2009 10:52pm
Danny (mail):
The problem is I live in Europe and I never use English except when I am teaching English part-time. My students can't say ANYTHING (one of them has been working on the English present tense for a year, you know "I go, we go, they go, I don't go" - really rocket science). But the dummies want a British teacher so as not to be contaminated by yucky American English, so my boss makes me say I am from London (they can't tell the difference with the accent) and write everything in British English, now it has become a habit.
6.13.2009 10:56pm
Smoothie (mail):
Again do people here NOT understand what the DOJ's job is? It is their JOB to defend laws that Congress passes, regardless of the administration's position on the issue. Here is a general synapsis of DOJ policy:

The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional.

Obama has not said the law is unconstitutional. The DOJ lawyers are doing their job. Get over it.
6.14.2009 12:47am
Smoothie (mail):
And that synapsis is a listing of when DOJ lawyers do not defend a law.
6.14.2009 12:50am
Cornellian (mail):
Again do people here NOT understand what the DOJ's job is? It is their JOB to defend laws that Congress passes, regardless of the administration's position on the issue.

If the administration believes a statute is constitutional because of argument A, there is nothing requiring them to put forward arguments B, C and D as well if they don't actually believe arguments B, C &D. The point is not that the administration is defending the statute, the point is the sleazy and dishonest arguments they are using to do so.
6.14.2009 1:09am
M N Ralph:

In other words, Obama want's to knock out DOMA but doesn't want the flack or knows he doesn't have the votes to do it. So he challenges the opposing brief with all the arguments in hopes that the Court sees it in the merits, knocks it down or limits it.
That way he gets the result he wants without having to compromise politically.

Make sense?


Way too much Princess Bride like logic IMHO. I'll go with the simple explanation. The Justice Department is supposed to defend the constitutionality of laws except in a few limited situations that do not apply here. Obama is following the law and long standing policy by letting the Justice Department do what it's supposed to do. That's good--politicizing the Justice Department was what Bush did and was rightly criticized for doing. Once you accept that the Justice Department is supposed to defend DOMA, then none of the other criticisms follow.
6.14.2009 1:09am
Oren:

Again, lawyers talking like marriage was something people just made up, ignoring that humans naturally marry

Actually, humans are naturally polygamous. Monogamy is a civilized invention designed to facilitate the in-depth education of children into a technological society.
6.14.2009 1:15am
Oren:

States have always been free to have different rules for who can marry and do so even today.

Assuming that's true, I'm going to get a petition in my state that refuses to recognize any of out state marriage (as contrary to public policy!) except under two conditions:
(1) The state issuing the marriage recognizes MA marriage without exception.
(2) The license holders pay a $1000 registration fee with the secretary of the state to convert their out of state marriage license to a MA-valid one.

Oh, the fun we could have.
6.14.2009 1:24am
M N Ralph:

If the administration believes a statute is constitutional because of argument A, there is nothing requiring them to put forward arguments B, C and D as well if they don't actually believe arguments B, C &D. The point is not that the administration is defending the statute, the point is the sleazy and dishonest arguments they are using to do so.


Believing the statute is constitutional is not the standard. It's my understanding that the Justice Department is usually supposed to defend the statute if there's any plausible argument that the statute is constitutional (see Smoothie for the standard exceptions)--a much lower standard. Presuamably, if their job is to defend the statute, then they should, like all lawyers, represent their client zealously. This would usually include making all the legally plausible arguments in favor of the law's constitutionality, not just the best one or the ones that you find non-objectionable.

The relevant issue is not whether they believe arguments B, C, and D. It's whether arguments B, C, and D are non-frivolous and whether making arguments B, C, and D makes it more likely to prevail. If the answer to those questions is "yes," and if their job is to defend the statute, then I'd think they should be advancing those arguments.
6.14.2009 1:25am
ReaderY:
More bluntly put, the Obama DOJ is saying that DOMA doesn't discriminate against gays and lesbians because they are free to marry people of the opposite sex. No "homosexual" is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There's a nice boy across the street. It's identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn't discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration.

But courts have held that employers who wish to employ on a same-sex basis aren't discriminated against becasuse they are free to run mixed-gender establishments. Were this an "empty formalism", obviously the Civil Rights Act of 1965 would be patently unconstitutional under the Equal Protection Clause. Similarly, theft laws fall especially heavily on kleptomaniacs, littering laws target disorganzed people, and laws requiring gender diversity in public schools burden the portion of children whose intellectual develop occurs more rapidly in a same-gender environment.

Professor Carpenter proposes that laws whose burdens fall more heavily on his prefered groups should be struck down without even pretending to explain how the many other laws whose burdens fall more heavily on some people than others could survive constitutional muster. Such an approach violates the constitution's fundamental requirement of equal protection. Disorganized people, litteres, kleptomaniacs, white supremacists, boys who like being around other boys whether for education or for sex, all get the same level of protection.

It won't work to accuse the courts of bigotry for focusing on affect on ones favored group, while not expecting laws which have an equal affect on other groups, including groups one likes and groups one doesn't like, to get similar treatment.
6.14.2009 1:33am
Danny (mail):
We are not a "preferred group" but a bonafide suspect class according to CA, CT courts, + others?
6.14.2009 2:13am
KWC (mail):
Clayton et al.:

To suggest that "traditional marriage" is anything close to the one male/one female marriages of today is either ignorant or disingenuous. Take your pick.

It is only in very recent history where a man and woman's love for each other is sufficient basis to marry. Before then (indeed, in many cultures throughout the world today) marriage was about economic contract between families. Most certainly race and social status were (are) key factors in forming those marriages.

As soon as marriage became about love, and not just about economic contract and need to reproduce, no legitimate reason existed to prevent same-sex marriage. You see, if we want to forbid gays from marrying because it's not "traditional," that's fine, but then let's actually impose traditional marriage on everyone. Instead of marrying the person you love, let's force people to marry young to the person of their family's choice in order to form an economic contract. If everyone has to play by the traditional rules, that's fine, but you shouldn't be permitted to pick and choose. That is, it's not fair to allow decidedly untraditional "love" marriages to fluorish for straight couples whilst denying this same right to gays.

Oh, and while you cite Jewish morals, you conveniently neglect to mention the rampant polygamy (really, polygyny) prevalent in the Jewish scriptures. Polygyny that is never explicitly disapproved of. I mean, there's a reason Abraham has "many sons."
6.14.2009 2:56am
Cornellian (mail):

Assuming that's true, I'm going to get a petition in my state that refuses to recognize any of out state marriage (as contrary to public policy!) except under two conditions:
(1) The state issuing the marriage recognizes MA marriage without exception.
(2) The license holders pay a $1000 registration fee with the secretary of the state to convert their out of state marriage license to a MA-valid one.


Good luck getting that enacted.

Actually the reciprocity idea is interesting though. Suppose MA enacts a statute saying "we recognize all the marriages of any state that recognizes any of our marriages, and none of the marriages of a state that doesn't recognize all of our marriages." They'd never enact such a law, but it's an interesting hypothetical. Some people seem to assume that somehow the constitution has to stop such a scenario but I'm not at all convinced that it would.
6.14.2009 3:41am
Soronel Haetir (mail):
Cornellian,

I thought this is where FFC came in, that Congress can specify which acts must be given weight, and how that is to be proved. It would not surprise me if Congress were to pass an opposite sex marriage regonition act that excluded SSM.
6.14.2009 10:15am
troll_dc2 (mail):

I thought this is where FFC came in, that Congress can specify which acts must be given weight, and how that is to be proved. It would not surprise me if Congress were to pass an opposite sex marriage regonition act that excluded SSM.



This is the FFC:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.




It authorizes Congress to prescribe the "manner" in which official state decisions are to be proved "and the effect thereof." It does not say that Congress can nullify the rule by excluding some decisions from its coverage.

The dangerous source, Wikipedia, notes that the Supreme Court has recognized a public-policy exception. See here.

That exception seems tailor-made for preventing same-sex marriage from spreading. But we shall see.

I do not know whether the Court was justified in making up the public-policy exception, apart from the fact that such a ruling smacks of full-fledged judicial activism.
6.14.2009 10:44am
Thackery:
This is too funny!
6.14.2009 11:09am
Soronel Haetir (mail):
troll_dc2,

The word "effect" seems tailor made for this use. It doesn't say anything about states being able to give recognition to acts beyond what Congress specifies, but does set a floor. I can see this being broad enough to undo the proposed reciprocity only marriage recognition.
6.14.2009 11:23am
Clayton E. Cramer (mail) (www):

Romer v. Evans involved a state constitutional amendment that would have authorized "open season" on gay people;
Utterly false. It prohibited the government of Colorado from adding sexual orientation to antidiscrimination laws, and prohibited state agencies from offering recognition to gay couples. You make it sound like it authorized violence. Quite the opposite: it limited the use of governmental power in support of homosexuality.
6.14.2009 11:27am
jrose:
Professor Carpenter proposes that laws whose burdens fall more heavily on his prefered groups should be struck down without even pretending to explain how the many other laws whose burdens fall more heavily on some people than others could survive constitutional muster

You are reading more into Carpenter's claims than is there. All he is claiming is that marriage law discriminates against gays. He didn't imply that your example laws don't discriminate against disorganized people, etc. Nor, did he specify what the level of scrutiny ought to be in any of these cases.
6.14.2009 11:31am
Clayton E. Cramer (mail) (www):

To suggest that "traditional marriage" is anything close to the one male/one female marriages of today is either ignorant or disingenuous. Take your pick.
Traditional marriage: you know, the last 1500 years or so, during which Christianity was dominant in Europe.


It is only in very recent history where a man and woman's love for each other is sufficient basis to marry. Before then (indeed, in many cultures throughout the world today) marriage was about economic contract between families. Most certainly race and social status were (are) key factors in forming those marriages.
Not in the European civilization that is at the heart of American law. Race was completely irrelevant. Social status might well have been a factor in what matches were made, but the law did not prohibit marrying outside your class.
6.14.2009 11:31am
Clayton E. Cramer (mail) (www):

All he is claiming is that marriage law discriminates against gays.
Yup. And until very recently, ALL of our laws discriminated against gays. And suddenly a right was discovered hiding under the 14th Amendment that would have been nonsense to those who passed and ratified the 14th Amendment: the right to engage in the "unspeakable crime against nature."
6.14.2009 11:32am
troll_dc2 (mail):


Romer v. Evans involved a state constitutional amendment that would have authorized "open season" on gay people;

Utterly false. It prohibited the government of Colorado from adding sexual orientation to antidiscrimination laws, and prohibited state agencies from offering recognition to gay couples. You make it sound like it authorized violence. Quite the opposite: it limited the use of governmental power in support of homosexuality.



That's what you might like to believe. But as then-Justice O'Connor pointed out at oral argument, it would have authorized the state to deny even a library card to a gay person.

This is the text of Amendment 2:


No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation.

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.


It sweepingly authorized discrimination in everything! How can you honestly write what you did?
6.14.2009 11:38am
Oren:

They'd never enact such a law, but it's an interesting hypothetical. Some people seem to assume that somehow the constitution has to stop such a scenario but I'm not at all convinced that it would.

I'll agree with on this -- it would be fantastic political theater.
6.14.2009 1:26pm
troll_dc2 (mail):

And until very recently, ALL of our laws discriminated against gays. And suddenly a right was discovered hiding under the 14th Amendment that would have been nonsense to those who passed and ratified the 14th Amendment: the right to engage in the "unspeakable crime against nature."



Is it correct to read this passage as suggesting that you think that Romer v. Evans was incorrectly decided?
6.14.2009 1:30pm
Ben S. (mail):

And if it is the animus that is at issue, Loving should dictate that the anti-SSM laws be struck down.


Apologize if this has been said already, but if memory serves, Loving involved a law that imposed criminal sanction on white-nonwhite marriages. Thus, in my view, the biggest flaw with the Loving analogy to SSM is that Prop 8 and state and federal DOMAs do not (to my knowledge) impose criminal penalties; they simply refuse to issue or recognize licenses.

This is a huge difference in my view. I would not accept a law that punished two men who held themselves out as spouses, but I can see the argument against laws which would require the government to sanction their union with a marriage license.

Incidentally, this is also why I think it's humorous when Prop 8 opponents demand that the government "stay out of our bedroom." That argument would make sense if the government was trying to punish SSM, but it makes no sense when gays are asking the government to take the affirmative step of ratifying their union. Indeed, if anything, Prop 8 keeps the government out of the bedroom.
6.14.2009 2:00pm
Bob VB (mail):
…the right to engage in the "unspeakable crime against nature."

Which goes to the heart of what has changed Clayton. People have come to realize its neither a civil or natural 'crime', and that it is at its heart no different than the attraction that two citizens have 'traditionally' had with the same limitations - for most people they can only marry a particular gender.

If anyone has a right to marry than we all do, if anyone can marry someone of a particular gender then we all can. What's changed is realizing we really are all the same in our right and need to marry and an ethical government doesn't pick and choose which citizen's innate rights they decide to acknowledge.
6.14.2009 2:15pm
cmr:
pluribus

Is it your argument that it is permissible to deny a class of persons equal rights even when the law does not compel the denial, but just because it is "fundamental" to do so? Do you have a cite?


It's my argument that a law defining marriage being between a man and a woman isn't an expressed denial of rights to anybody, and marriage benefits aren't "rights".

zuch

Well. when the law specifically prohibits it, then the law needs changing, eh? But how does that make it your business? What iron do you have in the fire here?


The law wasn't permissive of it before it was against it. It would've had to have been for you to accurately say it's being "prohibited".
6.14.2009 5:02pm
zuch (mail) (www):
Ben S.:
[zuch]: And if it is the animus that is at issue, Loving should dictate that the anti-SSM laws be struck down.
Apologize if this has been said already, but if memory serves, Loving involved a law that imposed criminal sanction on white-nonwhite marriages. Thus, in my view, the biggest flaw with the Loving analogy to SSM is that Prop 8 and state and federal DOMAs do not (to my knowledge) impose criminal penalties; they simply refuse to issue or recognize licenses.
Yes, it's been said before ... and refuted before. The Virginia statutes provided criminal penalties for such people, but also provided a civil measure that invalidated any such marriages. That was struck down as well ... as I pointed out above.
Incidentally, this is also why I think it's humorous when Prop 8 opponents demand that the government "stay out of our bedroom." That argument would make sense if the government was trying to punish SSM, but it makes no sense when gays are asking the government to take the affirmative step of ratifying their union. Indeed, if anything, Prop 8 keeps the government out of the bedroom.
Huh? That's truly bass-ackwards "logic". Do you really think your argument makes any sense? To begin with, Prop. 8 does nothing to prevent criminalisation of sexual behaviour (although Lawrence takes care of that). But we're talking marriage here. And in no wedding that I've been to did the couples consummate it on the spot in front of the guests and government-required witnesses.

Cheers,
6.14.2009 5:38pm
Ben S. (mail):

Huh? That's truly bass-ackwards "logic". Do you really think your argument makes any sense? To begin with, Prop. 8 does nothing to prevent criminalisation of sexual behaviour (although Lawrence takes care of that). But we're talking marriage here. And in no wedding that I've been to did the couples consummate it on the spot in front of the guests and government-required witnesses.


Yes, I do. Regarding your first point, Prop. 8 also does not prevent murder or the torture of puppies. What does that have to do with it?

All Prop. 8 does is preclude the government from issuing marriage licenses to same-sex couples. It does not say (as the law in Loving did) that any same-sex couples holding themselves out as married (or, indeed, married in another state but residing in CA) can be locked up, fined, or otherwise punished.

Prop. 8 opponents oppose the law on the ground that the government should stay out of the "bedroom" and should not be in the business of choosing who can love whom.
But in asking the government to ratify their unions, homosexual couples are doing just this: Asking the government to involve itself in the "bedroom."

These arguments would make more sense if Prop. 8 gave the government the authority to arrest and imprison any same-sex couples who held themselves out as married. They make no sense here.

You, Zuch, appear to be unfamiliar with the possibility that the government has three possible influences on citizens' behavior: It can express approval (by granting benefits), express disapproval (by assigning a punishment), or express apathy (by doing nothing). Prop. 8 falls squarely within the last category: It says the government will neither approve or disapprove of homosexual unions. This means that homosexuals can go buy rings, hold a ceremony, call themselves spouses, and so on, and the government will do nothing.

Most of the homosexual-related laws have involved prohibition; punishing homosexual activity. I agree that this is a problem. But saying that the government should not be in the business of prohibiting sexual activity does not mean it must automatically skip neutrality and go right to approval.

But, as I've commented before, I think this is exactly what SSM proponents want: Not to simply be left alone (i.e., to have the government stay out of the bedroom) but to have society, via the government, approve of their love. In my view, this explains the opposition to Prop. 8 (a measure that, as discussed above, is purely neutral in its effect) despite the fact that same-sex couples already have the right to domestic partnerships in CA.

Also, please refrain from using inflammatory language. I am granting you that courtesy.
6.14.2009 6:04pm
Danny (mail):

Not to simply be left alone (i.e., to have the government stay out of the bedroom)



Just an aside about what an "advanced" beacon of "freedom" (pardon me while I puke) the USA is:
France got the gov't out of gays' bedroom in 1792, Italy in the 1880s, various European countries (although not the Germanic ones) in the 1700s-1800s. The USA in 2005. Enough said.
6.14.2009 6:19pm
ReaderY:
Why deny marriage licenses to corporations? Why this idea that "natural" persons are somehow better parents than any other kind of parent? Given that corporations are considered persons, why shouldn't they have the same rights to participate in family life as any other kind of person? Why this discriminatory belief that corporations aren't capable of love or their love is somehow less than anyone else's?

They can engage in sex, of course -- through agents, same as any other act. But of course they would no more have to have sex in person than meet. Simply enter it in the minutes and consider it done.

Obviously civil rights laws wouldn't apply to corporate marital relationships.
6.14.2009 7:20pm
jrose:
Prop. 8 opponents oppose the law on the ground that the government should stay out of the "bedroom" and should not be in the business of choosing who can love whom.

Where did you get the idea that opposition to Proposition 8 is based in privacy?

It can express approval (by granting benefits), express disapproval (by assigning a punishment), or express apathy (by doing nothing). Prop. 8 falls squarely within the last category.

When government expresses approval for one type of marriage, and only "apathy" for another, it is disfavoring the latter type of marriage. Yes, the disfavorment could be worse with a criminal penalty, but such a penalty is not required to establish discrimination. You don't seriously think the Lovings would have lost if they were denied a marriage license without a criminal penalty?
6.14.2009 10:00pm
Randy R. (mail):
Smoothie: "Again do people here NOT understand what the DOJ's job is? It is their JOB to defend laws that Congress passes, regardless of the administration's position on the issue."

You are of course wrong. Here is what Richard Scocarides, who worked as an attorney in the Clinton White House, as to say about the matter:

I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.

From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington. And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation, in a footnote, of incest and the marriage of children). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.

I am not suggesting that it is easy to get the DOJ to agree not to defend a law on the merits, because it is not. Someone has to be aggressive and make persuasive arguments to the president. Someone on a staff level has to believe strongly that it is the right thing to, not defending DOMA, and be willing to push hard. But it is doable. It does happen. It is one of the reasons the president needs to appoint a high-ranking, respected, openly gay policy advocate to oversee government efforts toward lesbian, gay, bisexual and transgender equality (as I and others have previously urged).
6.14.2009 11:37pm
Randy R. (mail):
Smoothie: "Again do people here NOT understand what the DOJ's job is? It is their JOB to defend laws that Congress passes, regardless of the administration's position on the issue."

You are of course wrong. Here is what Richard Scocarides, who worked as an attorney in the Clinton White House, as to say about the matter:

I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.

From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington. And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation, in a footnote, of incest and the marriage of children). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.

I am not suggesting that it is easy to get the DOJ to agree not to defend a law on the merits, because it is not. Someone has to be aggressive and make persuasive arguments to the president. Someone on a staff level has to believe strongly that it is the right thing to, not defending DOMA, and be willing to push hard. But it is doable. It does happen. It is one of the reasons the president needs to appoint a high-ranking, respected, openly gay policy advocate to oversee government efforts toward lesbian, gay, bisexual and transgender equality (as I and others have previously urged).
6.14.2009 11:37pm
Randy R. (mail):
oops! Sorry for the double posting.

Ben S. "Not to simply be left alone (i.e., to have the government stay out of the bedroom) but to have society, via the government, approve of their love."

You mean like how society, via gov't, approve of heterosexual love?
Are you really that scared that if your kids will see gays getting married, that they might turn into gays? Or perhaps you are arguing that any two gay men can't possibly love each other like a hetero couple can? Or is it that if gov't doesn't approve of our love, that we won't make lifelong commitments to each other, and that in your view is a good thing?
6.14.2009 11:47pm
Danny (mail):
The mere fact that these threads about the various legal aspects of being non-heterosexual and being in a gay couple invariably degenerate into the same repetitive arguments about the value and normalcy of homosexuality, week after week, is proof of the animus behind the anti-gay argumentation
6.14.2009 11:56pm
Shalom Beck (www):
I don't know y'all are so upset... The Obama administration is just making sure that the US keeps pace with our friends in the Islamic world.
6.15.2009 12:00am
Smoothie (mail):
Randy, it really doesn't matter what one person says, I put forth the DOJ policy as it is and has been. Your cite appears to be someone arguing for a change of this policy. I guess it fair to arguing that the DOJ should change its policy, but the point of the above post was to imply that Obama was supporting a law and a brief defending the law due to DOJ obligations to defend it. That's simply not the case under DOJ policy.

And think for a moment if the policy you are arguing for was adapted. Congress passes a law the president does not like, for whatever reason. Someone challenges the law. The president issues a order not to defend the law. Unless a private party intervenes, the law could be struck down without vigorous defense by the DOJ, usurping the power of Congress to pass such laws. We know that conservatives would be more in an uproar about this, than current DOJ policy.

There is also confusion about the DOJ. They represent the U.S. Government, who passed the law. They do not represent Obama specifically. Look to the congressmen/women who passed the law for criticism when you see the absurd justifications needed for an absurd law.
6.15.2009 12:03am
CJS (mail):
Smoothie,

What you describe in your hypo sounds like a check in the check-and-balance process to me...
6.15.2009 12:24am
Danny (mail):
Check out Bill Maher's takedown of Obama: "This is not what I voted for!"
6.15.2009 12:31am
Randy R. (mail):
Well, Smoothie, perhaps you know better how the process works than someone who actually worked on policy and law issues in the White House. But in any case, if you actually read what Scocarides says, he doesn't say that the president can merely ignore any laws he disagrees with, but instead should set policy first and then have the lawyers find a way to defend the law AND support the policy. Only if that cannot be done, should the policy win out. Furthermore, as noted over at Americablog, there are at least four cases that previous administrations did not defend, so there is that precedent as well. So it simply isn't true that DOJ policy has always been to defend every law no matter the circumstances. Lastly, there was no need to defend DOMA to such an extreme.

Danny: "The mere fact that these threads about the various legal aspects of being non-heterosexual and being in a gay couple invariably degenerate into the same repetitive arguments about the value and normalcy of homosexuality, week after week, is proof of the animus behind the anti-gay argumentation."

Yes, and it also shows the irrational fear if people and the gov't actually treat gays as equals -- that treating us as 'normal' people robs them of *their* status as special!
6.15.2009 12:59am
JCC:
Danny:

The mere fact that these threads about the various legal aspects of being non-heterosexual and being in a gay couple invariably degenerate into the same repetitive arguments about the value and normalcy of homosexuality, week after week, is proof of the animus behind the anti-gay argumentation


Umm, that's proof of nothing. In fact, I could argue completely the other way if I wanted to... that the dismissal of argumentation as "out of bounds" with snippy comebacks instead of actually discussing the 44 page response on the merits is an indication that the PRO-SSM (or rather, anti-anti-SSM?) side is the one with too much emotion behind them.

For one thing, among those discussing the case here... one side is certainly quicker with the ad hominems than the other. Can we discuss the legal arguments in the case *without* accusing the other side of bad faith and presuming that the must be animus-laced bigots? Apparently not.
6.15.2009 2:40am
Randy R. (mail):
You are right, JCC, but it's difficult when people accuse us being Marxists, that the single and only reason we want SSM is to destroy marriage (it's all a big conspiracy, see), or that the only reason we want SSM is to normalize a perverted 'lifestyle', or that if we want SSM we MUST also demand polygamy, incest and bestiality or we are just liars, and that we hate religion and just can't wait to sue a church to force them to marry gays and so on.

First, we say that there is no truth to any of it, but they won't accept that.

What should be our response to people who make these wild accusations, time and time again?
6.15.2009 10:50am
Randy R. (mail):
You are right, JCC, but it's difficult when people accuse us being Marxists, that the single and only reason we want SSM is to destroy marriage (it's all a big conspiracy, see), or that the only reason we want SSM is to normalize a perverted 'lifestyle', or that if we want SSM we MUST also demand polygamy, incest and bestiality or we are just liars, and that we hate religion and just can't wait to sue a church to force them to marry gays and so on.

First, we say that there is no truth to any of it, but they won't accept that.

What should be our response to people who make these wild accusations, time and time again?
6.15.2009 10:50am
Randy R. (mail):
You are right, JCC, but it's difficult when people accuse us being Marxists, that the single and only reason we want SSM is to destroy marriage (it's all a big conspiracy, see), or that the only reason we want SSM is to normalize a perverted 'lifestyle', or that if we want SSM we MUST also demand polygamy, incest and bestiality or we are just liars, and that we hate religion and just can't wait to sue a church to force them to marry gays and so on.

First, we say that there is no truth to any of it, but they won't accept that.

What should be our response to people who make these wild accusations, time and time again?
6.15.2009 10:50am
Randy R. (mail):
Ugh. This new computer is giving me problems! Sorry for the *triple* post!
6.15.2009 10:51am
zuch (mail) (www):
Ben S.:
But in asking the government to ratify their unions, homosexual couples are doing just this: Asking the government to involve itself in the "bedroom."
No. You may think that they do, but you would be wrong.
You, Zuch, appear to be unfamiliar with the possibility that the government has three possible influences on citizens' behavior: It can express approval (by granting benefits), express disapproval (by assigning a punishment), or express apathy (by doing nothing). Prop. 8 falls squarely within the last category: It says the government will neither approve or disapprove of homosexual unions. This means that homosexuals can go buy rings, hold a ceremony, call themselves spouses, and so on, and the government will do nothing.
What a bunch of horsepuckey. Prop. 8 expressly prohibited same-sex marriages (you falsely insist that gummint's role is limited in 'disapproval' to criminalisation, leaving out prohibition). This was an affirmative act of prohibition. Yes, they can still exchange rings, hold ceremonies, etc., but by the laws of California they can't get legally married.

Cheers,
6.15.2009 11:12am
cmr:
Randy R.

You are right, JCC, but it's difficult when people accuse us being Marxists, that the single and only reason we want SSM is to destroy marriage (it's all a big conspiracy, see), or that the only reason we want SSM is to normalize a perverted 'lifestyle', or that if we want SSM we MUST also demand polygamy, incest and bestiality or we are just liars, and that we hate religion and just can't wait to sue a church to force them to marry gays and so on.


Hey, if the shoe fits...

First, we say that there is no truth to any of it, but they won't accept that.

What should be our response to people who make these wild accusations, time and time again?


None of those accusations are "wild", Randy. They're just not something you want to associate with. You want everyone to view you guys are being kicked-dogs, and everyone who disagrees with you to be a irrational bigot. That works to your advantage. But I think you and anyone who supports gay marriage and thinks the gay community is being completely above board with their "we just want equality" stuff is deluding themselves.

And I'd really suggest you stop acting like a silly, passive-aggressive child. You know, if you can.
6.15.2009 11:21am
cmr:
What a bunch of horsepuckey. Prop. 8 expressly prohibited same-sex marriages (you falsely insist that gummint's role is limited in 'disapproval' to criminalisation, leaving out prohibition). This was an affirmative act of prohibition. Yes, they can still exchange rings, hold ceremonies, etc., but by the laws of California they can't get legally married.



Uh, no, it didn't. It expressly confirmed heterosexual, monogamous marriage. The only reason it said anything about same-sex marriage is because Jerry Brown retitled the amendment to say it. Supporters wanted it to say "Limits on Marriage" and they tried to take him to court to get it to say that.

But considering the actual text of Prop 8 didn't say anything about gay people (or polygamy, zoophilia, pedophilia, or bigamy), though it precludes those too, you're telling a blatant lie if you say it "expressly" prohibits anything.
6.15.2009 11:24am
troll_dc2 (mail):
I have an idea. Why not post the exact language of Prop. 8 here? Then we can all see what it actually says and not have to rely on secondhand sources.
6.15.2009 11:39am
cmr:
I'll let someone else do it. Most of the people here know I'm right, and they might lie and fabricate for people who don't know, hoping they'll take their word for it.
6.15.2009 11:51am
Bob VB (mail):
cmr, it just doesn't really make any difference than the core problem remains - the state has been basically told to ignore some of the state's married citizens by making the legal licensing parameter's disqualify them.

So, by constitutional amendment, only some of those citizens married to men can license the 'marriage contract' and only some of those citizens married to women can license it in the same way. That would have been a problem if it had involved any actual rights, but since this was only about future limitations to the state usage of the mere word 'marriage' it was deemed ok by the courts.

The state can pretend that some citizens married to men and women aren't but it just invalidates the government, not the marriages.
6.15.2009 12:53pm
zuch (mail) (www):
cmr:

Can you be honest for once? Before Prop. 8 passed, same-sex marriages were legal (and this was in fact the impetus for putting the proposition on the ballot in the first place). And even after passage, the California Supreme Court ruled that marriages performed before passage were still valid. That's what the law did, and that's what the California Supreme Court ruled. Denying that is just dishonest.

Cheers,
6.15.2009 1:16pm
zuch (mail) (www):
cmr:
But considering the actual text of Prop 8 didn't say anything about gay people (or polygamy, zoophilia, pedophilia, or bigamy), though it precludes those too, you're telling a blatant lie if you say it "expressly" prohibits anything.
Here it is:
"Only marriage between a man and a woman is valid and recognized in California."
Note that word "only". It would read quite differently without that. It's not affirming opposite sex marriage. It's prohibiting same-sex marriage. That's the only change it makes. Of course, this was precisely the intent....

Cheers,
6.15.2009 1:23pm
AFJ (www):

"Before Prop. 8 passed, same-sex marriages were legal..."


And before that, before an activist court invented a "right" out of thin air, it was not.

But more accurately, same-sex "marriages" aren't illegal. Two men or two women (or X number of men and X number of women, for that matter) are free to have a "wedding", live together freely, love each other, etc. The fact that some type of relationship isn't licensed or affirmed by the state doesn't make that relationship illegal. All sorts of human relationships aren't licensed by the state, yet remain legal.



Note that word "only". It would read quite differently without that. It's not affirming opposite sex marriage.


To the contrary, that's exactly what it does, in clear English.
6.15.2009 1:41pm
troll_dc2 (mail):

"Only marriage between a man and a woman is valid and recognized in California."

Note that word "only". It would read quite differently without that. It's not affirming opposite sex marriage. It's prohibiting same-sex marriage. That's the only change it makes. Of course, this was precisely the intent....



You need to be more parsemoneous with your parsing of language. The quoted provision BOTH affirms opposite-sex marriage (since it says that a man/woman marriage is "valid and recognized" in the state) AND says that man/man and woman/woman relationships are not recognized by the state as marriages. The word "only" has but a single function--to limit what relationships are recognized as marriages.
6.15.2009 1:55pm
cmr:
BobVB

cmr, it just doesn't really make any difference than the core problem remains - the state has been basically told to ignore some of the state's married citizens by making the legal licensing parameter's disqualify them.


Disqualify (if we must use that term) them from the label of "married", but not from the substantial benefits.

So, by constitutional amendment, only some of those citizens married to men can license the 'marriage contract' and only some of those citizens married to women can license it in the same way. That would have been a problem if it had involved any actual rights, but since this was only about future limitations to the state usage of the mere word 'marriage' it was deemed ok by the courts.

The state can pretend that some citizens married to men and women aren't but it just invalidates the government, not the marriages.


You're giving me a lot of gobbledygook. The people passed Prop 22, the courts overturned it (on what I believe was specious reasoning in the first place), the people voted to amend their constitution, and the court decided to uphold it. Period.

zuch

cmr:

Can you be honest for once? Before Prop. 8 passed, same-sex marriages were legal (and this was in fact the impetus for putting the proposition on the ballot in the first place). And even after passage, the California Supreme Court ruled that marriages performed before passage were still valid. That's what the law did, and that's what the California Supreme Court ruled. Denying that is just dishonest.


And...before that they weren't legal. The fact that the court decided to hear the case against Prop 22 is what prompted people to begin collecting signatures. It wasn't after they'd already legalized it. And anyway, regardless of their impetus for doing so, the law doesn't expressly preclude homosexuals from marriage, and even though "couples" don't have inalienable rights, it didn't stop same-sex couples from receiving the benefits the state can bestow with domestic partnerships.

What's dishonest is acting like Prop 8 wasn't just identity politics run amok, and like the law specifically says something it doesn't.

Note that word "only". It would read quite differently without that. It's not affirming opposite sex marriage. It's prohibiting same-sex marriage. That's the only change it makes. Of course, this was precisely the intent....


Uh, OK? You just made my point. It affirms opposite sex marriage. It doesn't "prohibit" same-sex marriage, only in the sense that it's not something the state recognizes. And like I said, it "prohibits" (your word) same-sex marriage in the same way it "prohibits" every other form of marriage besides a heterosexual monogamous one.
6.15.2009 3:46pm
Danny (mail):
I support the traditional voting as it has been practiced all over the world. I believe that voting is between one non-Mormon and one ballot. We aren't against Mormons, we just want to restore the traditional definition. It's not discrimination, it's just the definition. On board?
6.15.2009 6:14pm
Randy R. (mail):
cmr: "None of those accusations are "wild", Randy."


That the single and only reason we want SSM is to destroy marriage? That's not a 'wild' accusation?

I really can't respond to your attacks anymore, though. You have gotten way too personal to have any rational discussion.
6.15.2009 6:27pm
Bob VB (mail):

And so they now have the situation where some married couples can license the civil contract titled 'Marriage' and some can't. Incredibly silly but the same situation our court ruled here in Washington - as long as it is merely a word under contention its not unconstitutional as long as all citizens have access to the institution through some means. The Feds should do the same - once all citizens have the same rights under whatever contract name the constitutional challenge would be a much higher hurdle.

Of course now here in Washington state we have some trying to make domestic partnerships and marriage civil contracts unequal opening the door to a legal challenge but the ones doing it aren't the brightest bulbs in the marquee.
6.15.2009 6:56pm
zuch (mail) (www):
troll_dc2:
[zuch]: "Only marriage between a man and a woman is valid and recognized in California."

Note that word "only". It would read quite differently without that. It's not affirming opposite sex marriage. It's prohibiting same-sex marriage. That's the only change it makes. Of course, this was precisely the intent....
You need to be more parsemoneous [sic] with your parsing of language. The quoted provision BOTH affirms opposite-sex marriage (since it says that a man/woman marriage is "valid and recognized" in the state) AND says that man/man and woman/woman relationships are not recognized by the state as marriages.
As Hertz would say, "Not exactly." In fact, that specific prescriptive language does not require that opposite-sex marriages must be valid and recognised. It doesn't require that any marriages be valid and recognised; it simply prohibits same-sex marriages from being so and is literally silent as to whether that should apply to opposite sex marriages. Which is why I, prior to the decision, and Prof. Kmiec as well, had suggested that the way to resolve the conundrum of this provision with the non-discrimination provisions of the California constitution was to simply order that no state-sanctioned marriages should issue at all. Which would have had the salutary effect of getting the bigots and azos that pushed for Prop. 8 to perhaps understand what they were trying to do to others....

Cheers,
6.15.2009 7:41pm
zuch (mail) (www):
cmr:
The fact that the court decided to hear the case against Prop 22 is what prompted people to begin collecting signatures. It wasn't after they'd already legalized it.
Making up 'facts' is not a valid form of argument.

Cheers,
6.15.2009 7:44pm
zuch (mail) (www):
cmr: I take back my last comment. I misunderstood you when you referenced "the case against Prop. 22". In fact, there were several cases involving Prop. 22 over the years since Prop. 22 passed in 2000, and the 2008 decision was a case involving not only Prop. 22 but other provisions of the marriage code as well. But I see that it is this latter case that you were referencing.

Cheer,
6.15.2009 8:03pm
zuch (mail) (www):
cmr:
What's dishonest is acting like Prop 8 wasn't just identity politics run amok...
OK. You got me. I'll agree that Prop. 8 was just identity politics run amok. It was a political stunt and should never have been passed. There. Happy now?

Cheers,
6.15.2009 8:07pm
Danny (mail):


And I'd really suggest you stop acting like a silly, passive-aggressive child. You know, if you can.


How nice for an academic blog. Just a linguistic aside: did you know that your name is almost the same as the word for "canine distemper" in Italian? CMR is pronounced "cimerre" with a "ch" sound, which is almost identical to a local dialect pronunciation of "cimurro" the dog and weasel disease.
6.15.2009 8:37pm
cmr:
Randy R.

cmr: "None of those accusations are "wild", Randy."


That the single and only reason we want SSM is to destroy marriage? That's not a 'wild' accusation?

I really can't respond to your attacks anymore, though. You have gotten way too personal to have any rational discussion.


No, that's not a wild accusation. It's a strawman of sorts, but more importantly, a lot of people see the race-baiting and anti-religious bigotry that tends to accompany the pro-SSM sentiment, and they don't think it's a coincidence that most people who seem to support SSM hate these institutions that support a certain form of heteronormativity. While you can make the point that it's not inclusive enough (I'd agree), there is a certain baseless ire from those who believe in "marriage equality".

zuch

cmr: I take back my last comment. I misunderstood you when you referenced "the case against Prop. 22". In fact, there were several cases involving Prop. 22 over the years since Prop. 22 passed in 2000, and the 2008 decision was a case involving not only Prop. 22 but other provisions of the marriage code as well. But I see that it is this latter case that you were referencing.


Uh huh.

OK. You got me. I'll agree that Prop. 8 was just identity politics run amok. It was a political stunt and should never have been passed. There. Happy now?


Cute, but you know I'm referring to the issue and not the amendment. Actually, I think it shouldn't have been passed either. I think Prop 22 should've been left intact. But, some people decided to take a gamble and they lost. Oh well.

Danny

How nice for an academic blog. Just a linguistic aside: did you know that your name is almost the same as the word for "canine distemper" in Italian? CMR is pronounced "cimerre" with a "ch" sound, which is almost identical to a local dialect pronunciation of "cimurro" the dog and weasel disease.


Was this supposed to be clever or something? Did you know your username is really close to "fanny", which refers to one's rear-end, which is what you're acting like right now?
6.16.2009 1:08am
troll_dc2 (mail):

[zuch]: "Only marriage between a man and a woman is valid and recognized in California."

[me] Note that word "only". It would read quite differently without that. It's not affirming opposite sex marriage. It's prohibiting same-sex marriage. That's the only change it makes. Of course, this was precisely the intent....

You need to be more parsemoneous [sic] with your parsing of language. The quoted provision BOTH affirms opposite-sex marriage (since it says that a man/woman marriage is "valid and recognized" in the state) AND says that man/man and woman/woman relationships are not recognized by the state as marriages.

[zuch]As Hertz would say, "Not exactly." In fact, that specific prescriptive language does not require that opposite-sex marriages must be valid and recognised. It doesn't require that any marriages be valid and recognised; it simply prohibits same-sex marriages from being so and is literally silent as to whether that should apply to opposite sex marriages.



So what is the meaning of "is" in the phrase "only marriage between a man and a woman is valid and recognized"? You say that the statute is "literally silent" on its applicability to opposite-sex marriages. You won't even concede that "is" might mean "can be but doesn't have to be"!

I have no idea who Hertz is or was or what he/she had to say on how to read a word. But even if what he/she said supports your perspective, how can anybody know whether he/she was right?

I submit that your desire for a certain outcome has overtaken everything else.
6.16.2009 11:11am
troll_dc2 (mail):
In my last post, I erred in the placement of "[me]." It belongs in front of the paragraph beginning "You need."
6.16.2009 11:24am
zuch (mail) (www):
troll_dc2:
You won't even concede that "is" might mean "can be but doesn't have to be"!
On the contrary, that is exactly what I was pointing out.

Hertz, of course, is the plaintiff in the famous Hertz v. Avis imbroglio. Always a good, reliable Citation. ;-)

Cheers,
6.16.2009 11:50am
troll_dc2 (mail):
So why did you say that the statute is "literally silent" on its applicability to opposite-sex marriages? It isn't! Rather, it is, at most, ambiguous.
6.16.2009 12:14pm
JCC:
zuch wrote:


Can you be honest for once? Before Prop. 8 passed, same-sex marriages were legal (and this was in fact the impetus for putting the proposition on the ballot in the first place).



Bullshit, bullshit, bullshit. Maybe this is the source of some of the confusion on your side.

Proposition 8 was drafted and circulated and had signatures 6 months before the In Re: Marriage cases decision. I myself signed it in Feb or March, completely without an idea that there were any specific cases percolating up (although I probably assumed there were in some way).

True, signature gathering increased after the *surprise* decision was passed in May, but it was conceived, drafted, and supported when SSM was illegal. Don't sit there an accuse supporters of "taking rights away" since at the time I signed it (and absent what I consider to be an erronous ruling after I did), all it did was maintain the status quo.

The language of the Proposition itself provides additional evidence. Why was it drafted not nullifying any existing SSM marriages? Because none existed! And, obviously, they didn't expect any would exist before that November.
6.16.2009 8:19pm
zuch (mail) (www):
troll_dc2:
So why did you say that the statute is "literally silent" on its applicability to opposite-sex marriages?
Because it is. It neither requires this nor prohibits it. The subject matter to which it applies is marriages other than opposite-sex marriages. They are prohibited.
It isn't! Rather, it is, at most, ambiguous.
You're right. It is, "at most", ambiguous. But literally, it says nothing specific about opposite-sex marriages either way.

Cheers,
6.17.2009 10:55am
troll_dc2 (mail):
I keep coming back to the language: "Only marriage between a man and a woman is valid and recognized in California."

zuch claims that this language neither specifically requires that a marriage be between different sexes nor prohibits such a marriage. JCC says that the language was drafted before the California Supreme Court legalized gay marriage in the state and was written to maintain the then-status quo.

Suppose the language omitted the "only" and, thus read simply that "marriage between a man and a woman is valid and recognized in California." Under this language, there would be no law regarding the validity of same-sex marriage; it would not be recognized or forbidden. What about opposite-sex marriage? I suspect that zuch would concede that the language accepts and maybe even legalizes opposite-sex marriage but does not rule out accepting and legalizing anything else. (At least I would hope that she would, since it is hard to conclude that the language has no meaning and no effect.)

Now add the word "only." If I read zuch correctly, she would assign this word no power except perhaps to put the legality of opposite-sex marriage in question.

Or have I missed something?
6.17.2009 11:16am
zuch (mail) (www):
troll_dc2:

OK, tell me: Does Prop. 8 forbid the legal elimination of opposite-sex marriage (say, by the legislature)?

Cheers,
6.17.2009 1:07pm
troll_dc2 (mail):

Does Prop. 8 forbid the legal elimination of opposite-sex marriage (say, by the legislature)?



Prop. 8 simply does not address what the legislature may or may not do with respect to opposite-sex marriage; it is silent on everything but the present scope of state-recognized marriage. Prop. 8 uses the word "only" to limit that recognition to opposite-sex marriage.

Prop. 8 would not forbid the legislature to repeal, and not replace, all marriage laws.
6.17.2009 2:26pm

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