When the U.S. Supreme Court reads the federal Constitution as barring certain kinds of laws -- especially state laws -- people often raise three related objections:
The Justices are unelected, and not accountable to the people.
The Justices' decisions are very hard to change for the people to change (since a constitutional amendment requires a two-thirds vote in each House of Congress, or a hard-to-call convention, plus majorities in three quarters of the state legislatures).
The decision of nine judges in Washington, D.C. is interfering with contrary views of the people throughout the country.
Of course, if one thinks that the Constitution does indeed command a particular result, then one probably wouldn't raise these objections, largely because the Constitution was indeed enacted by the people (though usually a very different group of people than is now alive). But if one thinks the Justices read the Constitution wrong, these three objections exacerbate the error. And when a constitutional provision is very vague, these objections might be (to many) a reason to leave decisions in the hands of the democratically elected branches rather than in the hands of the Justices.
It's not clear, though, that the same objections play out quite the same way when we have a state Supreme Court interpreting a state constitution. In many states, Supreme Court Justices are indeed elected; in other states, they are at least accountable to the voters in retention elections. In most states, the state constitution is quite easy to change, generally requiring only placing a constitutional amendment on the ballot (which may be expensive if signatures need to be gathered, but which can often be done with no such expense by the people's representatives in the legislature) followed by a majority vote of the electorate. And the decision is at least made by Justices from one's own state, rather than by people in far-off Washington, D.C.
Consider, for instance, the California Supreme Court decision in the same-sex marriage case. California Supreme Court Justices are accountable to the people in retention elections, a weak form of accountability but still some accountability. The California Supreme Court Justices are at least Californians making decisions for other Californians. And in November, the voters will have the final word on the matter, with a 50%+1 vote being all that's required to reverse the court decision -- no need for the famously cumbersome Article V federal constitutional amendment process.
Naturally, if one thinks the California Supreme Court interpreted the state constitutional provisions incorrectly, the fact that their error can be easily corrected doesn't mean that it's not an error. But it might suggest that residents of California -- and especially of states where the constitution is easier to change and the Justices are elected in competitive races -- should be less concerned about Justices' ability to place their own interpretations on vague or ambiguous constitutional language.
Related Posts (on one page):
- The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
- The California Legislature's Enactment of Same-Sex Marriage:
- "Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
- Congratulations to California Same-Sex Married Couples:
- The Slippery Slope to Same-Sex Marriage:
- California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
But, as is quite common, the default rule matters quite a great deal. It is costly to mobilize voters to vote to allow same sex marriage. It is equally costly to mobilize voters to vote to ban same sex marriage. This "cost of overturning", so to speak, is the space within which courts have discretion, and even at the state level to cost is still quite considerable.
There's no reason to let the legislature get away with sloppy writing.
The notion that we are a "different group" from those who voted on the Constitution is as useless to any analysis, I would think, as the argument that I shouldn't be convicted of murder because the statute was enacted by a prior legislature, which was itself elected by a group of people all of whom are now dead.
I think we are all bound by the rules adopted by long-gone generations, until, by lawful means, we change them. This is what is so damned irritating about judges, for whom "change by lawful means" is just another way of saying "Hey! here's my view on the subject."
If we *must* pay attention to the facts at hand, however, then: great post.
You must be one of those people who thinks that the 14th Amendment gave women the right to vote.
MikeS, in stating his view, points out approvingly regarding Massachusetts what I would assess disapprovingly: "Once the legislature couldn't even muster the 25% vote to put an Amendment proposed by petition on the ballot, I was mollified, as this was a clear expression of democratic support."
Does anyone really believe that the Massachusetts legislature's action reflected the democratic will of the people of that state? In fact, the reason that Mike likes the Massachusetts process is that the legislature could be sufficiently bought or intimidated by special interest groups that they prevented any kind of popular plebiscite, precisely because they all knew what the result would have been- they would have lost. Democratically.
MikeS and company like the rule of judges, where they can shoehorn their personal preferences into law without having to subject them to inconveniences like the popular will. In California, unlike Massachusetts, ballot initiatives can be sustained without screening by the elitist political class. That's why, in only that one situation, Prof. Volokh is correct.
And, you know, only flat-earth homophobes would ever refuse to believe that opposing gay marriage, or any other left-wing dream, was, like, different from, say, actual gender, or skin color in the days of Jim Crow laws.
In Minnesota, the state Senate is controlled by senior godfathers who stay in place for 30 years and personally decide what bills even get voted on. And you can believe that the one that won't get voted on is any kind of initiative and referendum.
Rose Bird, Cruz Reynoso, and Joseph Grodin would probably disagree that it is weak.
Also: I dislike judges reading their policy preference into the constitution very much. That is why I was so upset with
the MA ruling; it could not be reconciled with any sensible theory of democratic rule. The claim that the people somehow redefined marriage in a referendum in which the subject never arose, or that John Adams wrote same sex marriage into the Mass. constitution is simply risible.
However, if you can't even find 25% of the legislature to support an amendment with a huge number of signatures, and it is the legislators who supported the amendment who have trouble at the polls, I am will to concede that the democratic defect of the decision was at least amelieorated after the fact.
For this very reason, art. 120 of the Dutch constitution forbids the courts from entering into the constitutionality of laws passed by parliament. Fortunately, or unfortunately, depending on one's POV, treaties have direct effect, and that includes human rights treaties, so that laws that violate a citizen's human rights can still be ignored. (Although not technically annulled, of course.)
An analogy, if one is needed: If a state court strikes down a local law on the grounds that it's preempted by state law, the state legislators may undo that decision by revising the state law to make clear that it doesn't preempt local law. Likewise, if a court strikes down a state law on the grounds that it's preempted by federal law, Congress may undo that decision by revising the federal law to make clear that it doesn't preempt state law. Why shouldn't the same apply when a court finds that a statute is preempted by a voter-approved state constitution?
That is why I was so upset with the MA ruling; it could not be reconciled with any sensible theory of democratic rule. The claim that the people somehow redefined marriage in a referendum in which the subject never arose, or that John Adams wrote same sex marriage into the Mass. constitution is simply risible.
You might read the MA ruling, or read it again. There was no claim that John Adams wrote same sex marriage into the Mass. constitution; the constitutional text that was the basis for the ruling was the equality clause added to the Mass. constitution in the 1970s.
Nor was it contended that that amendment to the Mass. constitution, standing alone, required that gays be permitted to marry: the opinion considered whether the rationale for not permitting gays to marry made sense in light of the public policy articulated in the state's law as it stands today. In 1976, private homosexual conduct had only recently been decriminalized; by 2003, the Commonwealth had adopted a strong public policy against discrimination on the basis of sexual orientation. Thus, a rationale for barring gay marriage that made sense in 1976 didn't make sense in 2003.
I don't think the MA decision is beyond criticism -- though I happen to agree with it -- but in any event that ruling, and all other court rulings, should be considered for what it actually says.
Since I don't feel very strongly about the policy issue, I am reasonably content as a MA voter now that the legislature has lessened the democratic defect, but the decision still seems like unbridled judicial tyranny to me, and I would be quite happy to see the legislature impeach all the judges who voted for it. The CA decision like judicial overreach, but since an amendment is already on the fall ballot in CA, as I understand it, the people will have the opportunity to either ratify what the court has done, or overturn it. I don't particularly care which.
I take it you'd describe Loving v. Virginia as the product of a Court illegitimately seeking to impose its views on marrriage against the democratic views of the electorate.
After all, "race" is not mentioned in the text of the Equal Protection Clause. Nor can one seriously argue that the framers of the Fourteenth Amendment intended to abolish anti-miscegenation laws.
So if you think Loving v. Virginia was a good decision, how would you distinguish it from the invalidation of same-sex marriage bans?
Ultimately, the actions of one particular legislature might not be democratic but when the voters continue to elect legislators that do, their approval ought to count for something (yes, game theoretically, most MAians might disapprove of gay marriage but vote for legislators that oppose the initiative for unrelated reasons -- in any case, it's a democratic statement that the issue is not important enough for them to turn to other candidates).
I see. But if the people opposing SSM had been able to buy or intimidate the Mass legislature, you would have been happy with that, right?
What you are really complaining about is that the gays and gay supporters were stronger than the people opposing SSM. Too bad. We have to live with it when the situation is reversed. So should you.
<i>"the fact that their error can be easily corrected doesn't mean that it's not an error." </i>
</blockquote>
Why then, isn't it just as easy to "correct" the decision of over 60% of California voters who decided clarify the law that marriage is between one man and one woman? If it is so damn easy, why can't the people who want gay marriage just pass their own ballot proposition? Why not? Why must they subvert the constitutional rights of the citizenry to enact the very laws that govern us?
Because they know that they'll LOSE. In other words, they know that there is not popular support for their perversion of marriage. The people who passed Prop 22 spent a lot of time and money and effort to pass it and the citizens who voted for it knew they were preserving something worth protecting. They were making the type of value judgments that citizens must make when making our laws. What those 4 judges did was impose their personal value system (right, what values?) on the rest of the state, when that is not their task. Their task is to interpret the laws, not impose their elitist notions of social justice because a vocal minority isn't willing or is unable to pass their radical agenda through the proper democratic means.
And now, we're expected to go back and do it all again? you tell us that it is so easy to put the genie back in the bottle. Even in the event that the citizens succeed in restoring the institution of marriage back to form away from this judicially-imposed/undemocratic perversion of marriage then these same 4 judges will just pervert it again. I ask, then - where is the justice in that? Where is the justice in telling millions of citizens that they're votes aren't worth shit? Where is the justice in demanding that those in the majority have the burden of maintaining the status quo, and those who seek radical change only need to file a few legal briefs to sympathetic judges who have a predetermined result in mind to enact their radical change against the wishes of the vast majority? Where is the justice in disallowing political compromise amongst the people?
Don't bother answering. it's clear that justice isn't what you have in mind.
I do, and I live in MA.
So, interestingly, did the major Democratic candidates for Governor in 2006, who universally supported SSM. That might be a clue as to how knowledgeable MA political types view popular attitudes in the state.
Because ballot propositions are grotesque mechanisms and represent the worst of "mobocracy" or "direct democracy" that those of us who support republican government are supposed to fight against.
The legislature, executive, and judicial branches in CA are all united on being pro-gay marriage. It's only the mobocracy that has yet to get with the program.
It ain't just these 4 judges. It's the legislature AND the governor who want to "impose" gay marriage. If legislature = democratic, then think of this decision as doing nothing more than enforcing the will of the legislature who already voted gay marriage into law and got vetoed ONLY because of Prop. 22.
The governor has since noted he DOES NOT support the new proposition amending CA's Constitution to overturn this decision.
You are arguing for mobocracy or mob-rule. No sir. We live in a republic and the republic of California has spoken.
article on Holton's book
and here:
more on holton book
and here:
yet more
and here:
holton essay on divide et impera
and here:
fresia book online
Property tax reform (Prop 13)
Abolition of state-sponsered Affirmative Action (Prop 209)
Three-strikes law
Megan's Law
Jessica's Law
Victim's rights
Indian gaming
Yes, there have been mistakes as well (embryonic stem cell research funding, to name one), but if the CA legislators worried more about the rights of the citizenry than they do about the rights of rapists and child molesters, then maybe the people wouldn't have to take matters into their own hands.
..The Courts legitamacy is the loser here. Maybe Californians didn't vote against gay marriage by 61% in 2000, but they sure think they did. Maybe the majority now support SSM, but our Court can't read minds and even if they could, IT AIN'T THEIR JOB.
The fact that you can say "it's only [the actual citizens of America] who have yet to get with the program" with a straight face is hilarious. I am truly impressed.
If the majority of politicians are on one side and the majority of people are way on the other, you're going with the politicians every time. Awesome.
I think it's quite a stretch to say that it is "easily corrected". The citizens of California now need to alter their constitution in order to get the law back to what it was before the courts started meddling.
it might suggest that residents of California -- and especially of states where the constitution is easier to change and the Justices are elected in competitive races -- should be less concerned about Justices' ability to place their own interpretations on vague or ambiguous constitutional language.
No, I'm pretty sure that the citizens of America need to be much more concerned than they are about out of control judges, and lawyers for that matter. From what I've seen of the way many lawyers think, I'm starting to believe that judges should be drawn from the ranks of non-lawyers, say engineers or doctors. And breaking up the absurd guild system that is the law is at least a hundred years overdue.
Serious questions here.
(1) Assuming that a constitutional amendment that overrules the CA Supreme Court's decision is possible, can it also invalidate marriages that occur in the interim? It seems like it couldn't. That would put everyone in a tenuous position -- imagine the amendment passes in 20 years. A 20 year-old marriage can be made invalid by a constitutional amendment? It seems like those marriages would have to be "grandfathered" in.
(2) Can a constitutional amendment violate equal protection (i.e., other parts of the constitution)? Could we pass a US constitutional amendment that says race is not a protected class for 14th amendment purposes??? It seems that we could, but how untenable that seems!
(3) I think the measure will have to say something more than just "marriage is between a man and a woman." THat doens't address the question. The Court said, sure, that's fine, a marriage can be between a man and a woman, then we can't call any of it marriage. Put another way, the amendmnet will have to be VERY specific and say something like "sexual orientation isn't a suspect class" or the "fundmenal right to marry" does not belong to same-sex couples.
This is quite interesting. Especially the "interim" marraige questions. I sincerely want to hear your thoughts....EV???? Others????
Who elected a majority of the politicians again? Wasn't it a majority of the people? And weren't these same politicians reelected after they 'defied' the will of the people? And weren't some (at least two) of the politicians who agreed with the will of the people replaced?
So if the politicians the people elect are voting one way, and the people are voting another, and yet the people refuse to replace the politicians and in fact replace some of the politicians who agree with them, what conclusions should be drawn?
It seems like there are two possibilities: (1) The people (or at least enough people) changed their minds, so they don't care if the politicians now in office repudiate a proposition the people supported 8 years ago and no longer support, or (2) the people don't care very much about this issue, so that even if they continue to support the proposition today, they do not believe it is worth replacing the politicians who are responsible for it.
I suspect it is the first possibility, which is why I think the new prop to overturn the court's decision (if it qualifies for the ballot) will fail in the fall. But we shall see.
To address your second point:
In theory, an amendment to a constitution could not violate the same constitution. A change to the document (an amendment) having been passed later than whatever other provision you are referring to, would supersede the earlier-passed provision to the extent of any conflict, unless it expressly said otherwise. So therefore, if you could get the votes, you could pass a US constitutional amendment saying race is not a protected class and it would supersede every other previously passed provision of the US constitution, including the 14th amendment, unless the new amendment said otherwise (e.g., this amendment shall not be construed to supersede the 14th amendment).
However, this does not really apply in the case of the CA constitution. In CA, there is a concept of a constitutional AMENDMENT and a constitutional REVISION. They are not the same thing. A revision alters the basic framework of government. An amendment is any change that does not do that. In layman's terms, a revision is a big change, and an amendment is a small change. An amendment can be adopted by initiative, but a revision cannot be adopted by initiative. A revision can only be adopted by a constitutional convention and popular ratification or by legislative submission and popular ratification. So whether you could override equal protection provisions would depend on whether the justices viewed the equal protection guarantee as a revision of the basic governmental framework.
I'm going to guess that the answer to this is yes, that equal protection is such a fundamental part of democracy that if you want to supersede it, the courts are going to say you can't do it through an initiative amendment, you need a revision with all of the deliberation that comes with that process. [And you won't get a revision, because the legislature would have to approve it and they already approved the opposite result when they passed the legislation approving SSM that Arnold previously vetoed twice. You also need a 2/3 vote of the legislature to call a convention.]
So if the justices want to preserve their decision, they just need to decide that overriding the equal protection clause is a major change, and that is the ball game.
See generally, California Constitution, Article XVIII; Californians for an Open Primary v. McPherson (California Legislature) (2006) 38 Cal.4th 735, 786-792; California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-836
Except that supreme court justices (a) have to stand for election every few years and (b) are subject to recall.
Might not be the ball game.
The question is whether direct democracy does a good job capturing "the will of the people". On its face, it certainly seems like it does. However, it can be argued that on balance, it does not. The reason is that when choosing an elected representative, no voter will find a perfect candidate. A voter must evaluate which issues are most important, and find a candidate that at least "does the right thing" on that most-important set of issues. During the legislative process, I want my elected representative to stand strong on whatever core issue I selected him for. To get what I want, I will let him compromise on issues of lesser importance. These issues may of great importance to others, which is another way that the minority doesn't get trampled.
For myself, SSM is a perfect example of this. I don't get fired up over what seems largely like a symbolic issue. On balance I have a slight negative preference toward it. I am perfectly willing to let my elected representative to offer SSM as a way to negotiate support for policy initiatives I really do care about. So I fall into the bucket of people who would probably to ban it under a ballot initiative (due to my slight negative preferences), while my elected representative who votes for it in order to get me something I really care about would be doing a good job representing me.
Direct democracy seems best suited to issues where you really can't trust politicians to do the right thing, such as with term limits
Moreover, state legislators serve for two-year terms and are limited to serving a maximum of three, and therefore are more responsive to the people. As approval of an elected judge's work product would entail retention, that the elected judges on the California Supreme Court won't stand for election until the end of a twelve-year term negates any argument that they are as accountable as legislators.
The concern here about democratic accountability is not a factual dispute about whether state judges are elected. Rather, it simply defies logic to claim that legislative failure to make law creates constitutional rights, because it is structurally harder for legislatures to amend constitutions than to pass ordinary law. It should be rather clear that constitutional amendment by judges is not provided for in the California state constitution, whether you personally agree with the political outcome or not.
In CA under the strict scrutiny standard can legalization of plural marriage be far behind? Barring arguments of incest and statutory rape, what compelling state interests are served by barring the marriage of 3 (or more) consenting adults?
Marriage as defined until recently was between one penis possessor and one vagina owner. Loving v. Virginia held that the amount of melanin in the owners' skin didn't matter. Same-sex marriage bans maintain the historic one-to-one penis/vagina ratio. Redefining marriage to include same-sex relationships will change the dynamic of marriage, because while men and women are equal, they are not identical, and each brings a fundamentally different point of view to marriage.
1. Interracial marriage was criminalized. Anywhere in the country gays can go to a receptive church and get married without facing criminal prosecution. Same-sex marriage was not criminalized.
2. The rationale in the state's briefs was "White Supremacy." In other words, we must imprison those who marry outside of their race to preserve our racial caste system. There is no caste system that oppresses gays in California. Gays own property and vote, serve on juries and in the political branches, receive equal public education, and participate in the social and civic life of the polity. That marriage law does not include gays in no way promotes a caste system that oppresses gays in California because there is no caste system that oppresses gays in California.
3. Bans on interracial marriage were a part and parcel of Jim Crow, which was a continuation of slavery and its attendant black codes. Because there is no history of enslaving gays in the country, let alone in California, the notion that marriage law with a traditional definition is merely perpetuating long-standing discrimination against gays is rather absurd. No one even considered this issue before because "gay identity" is of recent vintage (though, of course, people engaged in homosexual behavior).
4. At the time Loving v. Virginia was truly countermajoritarian and black people -- the intended targets of White Supremacy --were actually politically powerless discrete and insular minorities excluded from political participation due to invidious discrimination. In California, gays are a politically powerful voting bloc that participates fully in the civic, social, and political life of the State, controls lobbying organizations and litigation advocacy groups with multi-million dollar budgets, and the California legislature has voted twice for gay marriage, all suggesting that the California Supreme Court was not properly in its countermajoritarian role. The California Supreme Court could have waited for a political resolution rather than jumping the gun.
Please note that none of my arguments have anything to do with disparaging gays or their quest for equality as they define it.
None of the things you've mentioned have anything to do with the text or intent of the Equal Protection clause. You can wave your hands and say the intent of the Fourteenth Amendment had something to do with race, and therefore it applied in Loving, but as I've already stated, nobody can seriously argue that the framers of the Fourteenth actually intended to abolish anti-miscegenation laws. They would have said that was crazy.
The Thirteenth, Fourteenth, and Fifteenth Amendments -- the Reconstruction Amendments ratified because of the Civil War -- had "something" to do with race? For someone hinging his argument on history, you are profoundly ignorant of it.
And people argued that "whites only" marriage was all about tradition too...
I'm saying they had to do with race regarding rights other than marriage. The Framers did not intend for blacks to be equal to whites in every regard.
You have the same problem with Brown v. Board.
Also, you miss a greater point. What is it about marriage that makes it HAVE to be between a man and a woman for you? Put another way, we a man and a woman get married, what are their reasons? Does the man say, I am marrying he because she is a woman? No, he'll say because I love her, we want to start a family, etc. Those are the essential components that define marriage, not sex or gender.
Jack Johnson: While you have identified policy reasons for distinguishing Loving and the gay marriage issue, you haven't identified constitutional or legal reasons for doing so. Indeed, for a constitutional perspective, all those things don't (or shouldn't) matter. I think if you look to the heart of Loving -- you will see that at the core, they are the same.
And, please recall that gays are forbidden from military service, often targets of violent attacks, and gay sex was criminalized until a few years ago in many states.
You're saying that because the Framers intended that the Fourteenth applied to race at all, that it applied in Loving. In doing so, you're ignoring the specifics of what they intended.
People do this all the time when they want to find a constitutional rule they like, but it doesn't fit into what is in the text or what was actually intended.
That undercuts your claim that marriage rights are fundamental. If they aren't fundamental, then there is no reason for anyone -- let alone gay people -- to have them anywhere.
My observation was that the California marriage law struck down the other day "in no way promote[d] a caste system that oppresses gays in California because there is no caste system that oppresses gays in California," so that could not have been a sound justification for striking down the law. That is a major difference.
No. Your question was: "So if you think Loving v. Virginia was a good decision, how would you distinguish it from the invalidation of same-sex marriage bans?"
I am pointing out the major differences between this case and Loving that could lead one to conclude this case was a bad decision and Loving was "a good decision".
Not for me it doesn't, because I don't hang my hat on original intent. That's your argument, not mine.
You're ignoring the entire previous paragraph in which I stated the criterion Volokh mentioned for what -- in his mind -- is a "good" decision (which depend on text and intent, I gather from what he said on the radio).
This seems to me to set the discrimination bar pretty damned low. "You're not enslaved in a caste system, therefore the discrimination against you is not constiutionally signficant."
1. The question was why Loving and not this case was "a good decision". Whether something is good is not a constitutional or legal question. It is a policy quesion. I think faulting me for answering the question posed is reflective of the unseriousness of your arguments.
2. Your criticism is better directed at the California Supreme Court, which offered no constitutional or legal reason for turning gays into a suspect classifcation and scrutinizing this law strictly. It is rather easy for anyone to argue that discrimination against blacks in this country has been worse than discrimination against gays by several orders of magnitude, and that justifies a difference in judicial skepticism toward laws enacted contrary to their self-asserted group interests.
3. As for your claim that the cases are the same at "their core," that's question-begging. You simply define "the core" to exclude any relevant distinctions that reveal how unjustified racheting up the level of scrutiny to strict is. I think those kinds of facetious and disingenous moves are flaws of legal craft and analytical errors that citizens should expect of their politicians, who serve the public by making compromise, but that citizens should reject when committed by judges, who, regardless of their policy preferences, are supposed to respect the rule of law.
Yet another careless transliteration of my argument. The argument is that if you aren't enslaved in a caste system, then precedents concerning enslavement in a caste system are likely inapplicable to your case. One could imagine a decision that said, "Providing all the same rights but refusing to call it marriage is arbitrary, so this law fails under rational-basis scrutiny." It would not be a 162-page opinion.
You are incorrect.
That's only slightly less abstract hand-waving than saying it has "something to do with race", which is the point I was trying to get out by using that phrase.
Now, if you're not relying on original intent, then so be it; but then you're not really addressing the question as I posed it to Volokh.
You have it backwards. The majority opinion actually cites to cases that are totally unrelated to the facts or legal question at-issue in the case, by rising to such a high-level of generality that everything is proof of anything. That is not a very strong notion of stare decisis. My argument is in favor of precision and specificity in analogical reasoning, and I am criticizing the California Supreme Court for lacking it.
Your notion of specificity and precision is still a lot more general than it should be under the "original intent" method. That's fine, but it doesn't address my point.
Why, did you listen to him on the radio too?
Frankly, nobody who proclaims to apply "original intent" can answer these questions unless they're willing to say that Loving and Brown were illegitimate (and apparently they're not).
There is no "original intent" method. Originalists these days use original public meaning. You have no idea what you are talking about.
Volokh used the word "intent", so that's what I'm calling it in my question to him.
Actually I take that back -- he did not use the word "intent." He said "the Framers certainly did not imagine this."
The equal protection clause of the 14th Amendment is basically a statement of egalitarianism that all people should be treated fairly under the law. In the case of race, once in a while the principle of fairness demands the law classify by race - for example to rectify de jure segregation. But most of the time, fairness demands the law ignore race, thus the strict scrutiny standard.
With regard to SSM, one cannot get around the fact that men and women are different. To my knowledge, no one has ever sued a state school because it had a men's doubles, women's doubles, and mixed double's tennis teams. Competitive tennis demands that the distinction among different types of couplings be acknowledged for the sport to be fair, and thus the 14th Amendment is satisfied.
I think states that have passed "civil union" legislation have pretty much gotten it right, giving same sex partners all the same rights between each other as mixed gender partners. This is the part of Loving, if any, that should be applied to the issue. When it comes to children, a lot of things change. There is a lot of biology at play, too much to say that a SSM environment is definitely as "good" as a traditional environment. Ultimately this should be a legislative determination as they evaluate the pros and cons, e.g. is having two loving gay parents better than not having both genders represented. It should not be a judicial determination, as the California court did.
Those fascist-in-all-but-name commenters who are gleeful claiming that only government actions, and never citizens, have legitimacy, should keep in mind that the republican (note little r) phrases they are singing only make sense when applying to a limited government, with few if any ways to interfere with daily life.
And those frustrated that legislators that seemingly are re-elected on the Huey Long model (only way I lose is if caught in bed with a dead woman or a live boy) should consider whether to save democracy in the republic, the US needs its own version of the British Reform Act of 1867. For those whose 19th century british history is shaky, this was the act that is considered to have ended pocket boroughs. Until our own computer-assisted pocket boroghs are ended,US politics will continue to be driven by the increasingly polarizing dialectic of incumbent protection.
So, back in Loving days, if legislators didn't criminalize interracial marriage but enact laws to call them as civil unions, would the law fulfill the 14th amendment? Can legislature classified all non-white/non-male as pseudocitizan or some other term rather than citizan but give them all the legal rights of citizen?
With regard to your first question, I find it unlikely that a legislature would create a legal status for "interracial marriage" that is 100% equivalent to the legal status of "marriage". If it did so, and both "types" of marriage offered the exact same benefits, would this be fair? Probably not, if the sole goal of the distinction was to stigmatize. But if a state gives SSMs a different name and the same rights, that seems like a reasonable distinction. As a child of divorced parents and a parent myself, I can personally attest to the importance of growing up with a male and a female presence. Defining SSMs and traditional marriages as "the same" is like defining men to be women - it doesn't make sense.
To your second, a legislature can say whatever it wants, but it can't interpret the federal Constitution as something different that with the Supreme Court says it means. For example, Texas defined life or "personhood" to begin at conception, while the Supreme Court says it begins at birth. Texas was out of luck.
So weak, politically understood, as to be negligible or very nearly so. There are so many political, legal, interest group, media and PR, etc. machinations that insinuate themselves into the political process that this factor is virtually negligible. Judges, politically, are viewed very differently than legislators for a whole host of reasons.
"The California Supreme Court Justices are at least Californians making decisions for other Californians. And in November, the voters will have the final word on the matter, with a 50%+1 vote being all that's required to reverse the court decision -- no need for the famously cumbersome Article V federal constitutional amendment process."
Yes, politically conceived this is far truer, it gets to the heart of the (political) matter, even if all the PR, interest group leveragings, etc. will still play a momentous part, both in terms of obfuscations and elucidations and everywhere in between.
War is hell and politics is war, at least so in these matters and anyone who naively "plays nice" is a patsy, a pawn, a "useful fool," a dupe - no matter what they are, in stations high or low, in other areas of their lives and their communities' interests.
I'm playing Devil's advocate. If you view this in the backdrop of Loving's day, perhaps the state thinks as you do of SSM with regards to interracial marriage and that there is something fundamentally different in an interracial marriage. Is that a compelling reason for the state to call it something else or criminalize it?
Like you, I wasn't brought up in SSM context, I confess I know nothing about how different it would feel. But I know that my experience with my parents are different from yours, should one of ours not to be call a marriage? Perhaps we should start taking the rights of people who abuses their spouses to get married, afterall, that marriage is certainly very different from normal marriages. That's certainly far more compelling reason to deny someone a marriage rather than there are two same sex people involved in this.
Your distinction is that there is two of the same sex people so it is different, but how is that a compelling reason? Different doesn't mean unconstitutional or bad, it just means different.
the same question is before us now, and we should again reject any attempt to say that a marriage which doesn't have conception rights is a marriage. But we should not assume that same-sex couples should have conception rights, even though stopping the use of modified gametes would preserve a system of hetero/natural superiority. But the alternative is creating a system of technological superiority, and that is not something that mankind is obligated to do to itself. Technology is not a person deserving equal rights, people are the things that need to be protected. To equate a scientist creating a baby using modified genes in a lab to enable same-sex conception, with the Lovings creating a baby by sleeping together as man and wife, is really cynical and racist.
Scratching my head . . .
So, if SSMs are given all the same rights and obligations of marriage, what could POSSIBLY be the legitimate goal of giving them a different name? Methinks Mr. Kennedy hasn't thought his argument through.
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and
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Henry Chew
Your distinction is that there is two of the same sex people so it is different, but how is that a compelling reason? Different doesn't mean unconstitutional or bad, it just means different.
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From the point of view of SSM advocates, giving the same rights to two different labels is silly. I agree that it is at best inefficient. However, let's look at the other point of view for a minute to figure out why this may be a good idea -
In the days before SSM was a public issue, "marriage" had a specific meaning. If in 1950 you had asked all the people who presided over marriages what "marriage" meant, all of them would have noted that it is between a man and a woman. In short, legal marriage and traditional marriage were one and the same. As recently as 2003, Webster in fact defined marriage as between a man and a woman.
So fast forward to today - Joe and Bob are in a committed relationship and want to spend the rest of their lives together. They want the state to recognize their relationship in order that they receive the same benefits accorded to people in a traditional marriage. They may even have a good case under the 14th amendment. Unfortunately, it is simply not a traditional marriage. What do you do?
Well, you can get into a slugfest about things like "the definition of marriage". As of 2006, Webster did in fact update their definition to
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(1): the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage "same-sex marriage"
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You can't really erase the old definition, so instead you tack onto it, or change it. And, of course, people go crazy, and you get people arguing over what "marriage" is, and there is a lot of shouting and anger. How is this helping Joe and Bob get their tax breaks and hospital visitation privileges?
The states that created "civil unions" and "domestic partnerships" did the right thing because they didn't try to redefine an existing term, AND they solved their equal protection issue. All you needed to do was leave the license alone that says "husband/wife", and add one that says "partner/partner". So to answer the question as to why there is a compelling reason, this is it - you get the job done, and Joe and Bob get back to living their lives.
It's also worth pointing out that when courts attempt to settle the issue, they invariably trigger ballot initiatives that set the SSM movement back decades. So while it might be satisfying to stick it to the social conservatives, its a political loser.
thats intersting-so your saying at least IF these things were also true in the federal world-you would look at the role of judges differently.
however it just makes me wonder then, if, as a matter of policy, you would support the creation of a system of elected federal judges (especially at the higher levels) -and a looser federal constitution amendment process? would you be against those things?
I'm sure Ilya would love to know
Since it's obvious that those who enacted the 14th amendment didn't construe it so as to invalidate "anti-miscegenation" laws, the 1967 Loving decision was clearly wrongly decided.
Loving was just another example of the warren-brennan court reading its policy preferences in to the constitution.
Same with Brown v. Board, of course. :^)
Perhaps they were simply "anti-white", to use a phrase recently coined by another VC commenter.
Man, this presidential contest is going to be a helluva lot of fun!
Loving was just another example of the warren-brennan court reading its policy preferences in to the constitution.
It's easy to point the finger at Earl Warren , and Bill Brennan, but Black, Harlan, Clark all supported it, it was a unanimous opinion. If it was a policy preferences, i am sure one of them would have write a dissent and explain that rather than joining the unanimous opinion of Warren,
It's easy to point the finger at Earl Warren , and Bill Brennan, but Black, Harlan, Clark all supported it, it was a unanimous opinion. If it was a policy preferences, i am sure one of them would have write a dissent and explain that rather than joining the unanimous opinion of Warren
i singled out warren and brennan because they seemed to be the ringleaders behind these decisions.
and yes, i know the Loving decision was unanimous, but that doesn't make it any less a "policy preference" of the court (it's my policy preference too, btw, which is equally irrelevant). It was, since there's no doubt that the enactors of A14 did not mean for it to invalidate anti-miscegenation laws.
Exactly.
i singled out warren and brennan because they seemed to be the ringleaders behind these decisions
and yes, i know the Loving decision was unanimous, but that doesn't make it any less a "policy preference" of the court (it's my policy preference too, btw, which is equally irrelevant). It was, since there's no doubt that the enactors of A14 did not mean for it to invalidate anti-miscegenation laws.
I would agree that Brennan and Warren make persuasive arguments, but if the rest aren't receptive to it , it wouldn't have made a difference. In fact, most of construction of the 14th amendment as used these days was parsed from Justice Harlan's view, one of the most conservative justice on the Warren court. I just think credit/blame should be given fairly.
As for what the 14A is supposed to have meant, I take Justice Scalia's view towards legislative history, one just can't tell for sure. It's a matter of interpretation and what text one looks at.
Justice Harlan apparently agrees with such usage of the 14A. " This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints"-Justice Harlan's dissent in Poe
Perhaps you share Justice Black's interpretation of the 14A, which is fair enough, but even Justice Black joined the opinion and even if he didn't and wrote separately, we still can't be sure which interpretation of the 14A is correct.
However, neither CA nor MA, as I understand it, explicitly passed any constitutional language guaranteeing equality regardless of sexual orientation. And even if they had protecting homosexual individuals is not the same as recognizing same-sex couples.
It might be nice if states did, but that should not be up to the judges. And I do not see it comparable to Loving at all. Nor do I consider Lawrence in this context; that was a correct decision respecting privacy; I do not think of that a judicial overreach at all.
And where's the federal constitutional language guaranteeing equality regardless of race?
While it may be true that the authors of the 14th amendment did not intend to overturn bans on racially mixed marriages, they certainly intended to make blacks equal citizens, and it is entirely reasonable (and, in my view correct) to argue, in the light of 100 years of history, that the various segregation laws made Blacks second class citizens
Our 100 years of history provide us with no knowledge on this point (the social meaning of laws against mixed-race marriage) that the enactors of the 14th amendment did not have, so i don't see how this argument floats a boat.
As for what the 14A is supposed to have meant, I take Justice Scalia's view towards legislative history, one just can't tell for sure. It's a matter of interpretation and what text one looks at.
......
Perhaps you share Justice Black's interpretation of the 14A, which is fair enough, but even Justice Black joined the opinion and even if he didn't and wrote separately, we still can't be sure which interpretation of the 14A is correct.
I'm not sure i have a 'general philosophy' about what A14 means. I just know pretty much for sure that Loving was wrongly decided, since whatever general philosophy undergirds that amendment, on this specific issue, the enactors did not mean for it to invalidate anti-mixed-marriage laws.
Someone needs to take a history class.
I'd like to see this changed, but I have to acknowledge that the majority of the voters seem at least content with the current system.
Our 100 years of history provide us with no knowledge on this point (the social meaning of laws against mixed-race marriage)
Someone needs to take a history class.
Not that it matters to the constitutional issue, but clearly the 100 years between A14 and Loving told us nothing new about interracial marriage and its relationship to "second class citizenship" for anyone. All of that was known at the time. How could it be otherwise?
The Congressmen rather like being able to blame tough decisions on the SCotUS