Be Sure to Wear Some Flowers in Your Hair
Julian Sanchez | March 14, 2005, 4:54pm
A San Francisco superior court judge has ruled that the state's ban on same-sex marriage is unconstitutional. Several wire services' court people, by the way, clearly need to get busted back to J-school, because after scanning half a dozen news articles, I had to read the opinion itself to discover: (1) the relevant constitution is California's rather than the federal Constitution, and (2) the court issued a two-tiered ruling: It applied "rational basis" scrutiny and found that the denial of marriage rights to same-sex couples lacked a rational basis, but also held that, in fact, the stricter scrutiny applicable to cases in which the government discriminates according to "suspect classes" (in this case, gender) applied, making the discrimination a fortiori impermissible, since the state would need a compelling interest, never mind a rational basis, to pass muster.
Interestingly, as wtih the federal Constitution, the state constitution's privileges and immunities clause seems to have become inert, even though it seems pretty relevant:
A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.
Now, glancing at the relevant part of California's constitution, I don't see any terribly significant difference in its equal protection language that would've led to a different ruling had the case been brought under the federal Constitution. But my understanding (someone correct me if this is wrong) is that since it's
not a ruling under the federal Equal Protection Clause, the California Supreme Court is the last stop for this one. Which is probably a good thing. Unlike my friend
James Joyner, I can't get terribly upset that "gay marriage has been enacted by judicial fiat rather than the democratic process." That's what constitutional rights guarantees are for: To flip the bird at the democratic process when majorities don't feel like treating minorities fairly and equally. But at this stage, a push for a federal decision on gay marriage would likely reinvigorate the loathesome Federal Marriage Amendment, which would be thoroughly counterproductive.
Anyway, at least as interesting as the substance of the ruling here is the standard of scrutiny applied. The ruling that discrimination against gays lacks a rational basis in the marriage context has implications only in that context, so far as I can tell. That discrimination involving gay relationships is to be treated as (prima facie invidious) gender based discrimination demanding a compelling state interest seems to be of broader importance.
Update: This Brian Doherty column from way back in nineteen-dickety-seven is actually pretty relevant on the state-vs-federal constitution front.
Xrlq | March 14, 2005, 8:53pm | #
After all, if you don't believe in "flipping the bird" (a la judicial review),
Correction: I support judicial review. I oppose judicial activism, which I define to include any ruling that substitutes the political preferences of the judge for the clear intent of the statute's drafters and proponents, or, if such intent cannot be ascertained, its plain textual meaning. Striking down a law that really does violate the Constitution is not "flipping the bird," it's just doing one's job.
[W]hat happens when we all pass a law that says commenters named Xrlq have to become slaves, despite the 13th Amendment?
First, we don't pass such an asinine law, and we vote out any Congressman or Legislator dumb enough to try. Second, if such a "law" passes anyway, we refuse to obey it since it also violates the written Constitution, which itself is a key part of the democratic process Julian wants our courts to flip the bird at. Third, if prosecuted for violating such a blatantly unconstitutional law, we challenge the ruling before the Politburo, and hope to God that at least five of its members will have the good sense to read the 13th Amendment and apply it as written. In reality, five of them probably won't, but that's OK since Justices Rehnquist, Thomas and Scalia probably will, and surely Justices Kennedy and O'Connor can be persuaded that there exists an emerging international consensus against slavery.
None of this has anything to do with gay marriage, however. The Thirteenth Amendment was about slavery, the Fourteenth about invidious racial discrimination. It is doubtful that a single Congressman, Senator or state legislator voting for our against the Fourteenth Amendment (or any of the state provisions patterned after it, including California's) ever contemplated that gay marriage, gay rights, or gay anything else would be affected by the Fourteenth Amendment one way or the other.
So yes, it is possible to oppose an unreasonable, blatantly political court ruling without attacking the very concept of judicial review,
per se.Akira MacKenzie | March 14, 2005, 10:17pm | #
No sooner had I read the initial post did I say, "I bet that swine BillyRay is going to be ranting about the insidious 'Gay Agenda' and how it threatens to destroy us all."
Looks like it was a sure thing.
He's not going to answer your question, Jennifer. He's going to sling apocryphal anecdotes of how good, virtuous, white, Christian, conservatives have been "oppressed" by imaginary "PC police" and how horrible it is to expect civilized people to accept others just because they don't choose the same type of sex partners as he does. He'll use slippery slope arguments about how gay marriage is just one step away from pedophilia and sadism, condemning law-abiding gays and lesbians by association. He'll play the libertarian by hiding behind freedom of speech and association, and use them to excuse discrimination, official and unofficial.
He won't answer your question because he will have to admit that, in the grand scheme of things, gay marriage or societal acceptance of homosexuality in total will not harm him, save his backward notions. He has no rational arguments to offer, just hate. The fucking coward doesn't even have to guts to come out and admit his bigotry. He bobs, weaves, and dances around the question. Do us all a favor and just admit to us all, here and now, that you hate "fags."
I have one piece of advice to offer: Ignore him! BillyRay doesn't deserve to be considered human. He lost that privilege thanks to the stupid prejudice that he mindlessly mistakes for morality. He's a pile of shit that somehow learned to walk upright and use a keyboard. From this moment on, he doesn't exist in my universe.
And this is not an "ad hominem" attack. I'm simply stating facts.
Gary Gunnels | March 15, 2005, 10:11am | #
BillyRay,
We've been through this before. An argument from tradition or history by itself does not justify to continuation of that tradition or historical trend.
Next it'll be multi-married partners. If the judge ruled that the state discriminates according to "suspect classes" then why should those wanting 8 wives be treated any differently?
This is sickening! Disgusting!
It must have really pissed you off when you read about Lot screwing his own daughters then. An incident your God apparently approved of. That's right, your God approves of incest in certain situations. Of course the Judeo-Christian tradition historically had no problem with men having numerous wives and even concubines - just look at the life of Solomon.
The Illinois study said that 2 percent of the population is responsible for 34 percent of sexual abuse which means they're way more likely to commit abuse.
These figures lead to some interesting conclusions according to a friend:
F = # of acts of sexual abuse committed by fathers.
M = # of acts of sexual abuse committed by mothers.
H = # of acts of sexual abuse that are homosexual = .0.14 F + 0.69 M
T = total number of acts of sexual abuse = M + F
h = fraction of acts of abuse that are homosexual = 0.34 = H/T = (0.14 F + 0.69M)/(M + F)
=> F = 1.75 M
So men commit 75% more total acts of sexual abuse against the foster kids than women, but what about the homosexual acts of abuse?
f = fraction of acts of sexual abuse that are homosexual in nature and committed by fathers = 0.14 F / h
= (0.14 x 1.75 M)/(0.14 x 1.75 M + 0.69 M)
= 0.245 M / 0.935 M
= 0.26
m = fraction of acts of sexual abuse that are homosexual in nature and committed by mothers = 1 - f = 0.74
=> Mothers commit 2.84 times as many homosexual acts of abuse (0.74/0.26) as fathers.
In other words either there are a huge number of abusive lesbian foster mothers, or the figures quoted in the article are wrong.
True Ron, polygamy is older than dirt. And throughout history its been tolerated by many different cultures. But with the exception of Mormans in Utah, its been dead in Western Civilization for centuries.
Yet, given your line of reasoning re: tradition, that should have never happened. The problem for you is that you are a hypocrite. There are certain traditions you want to follow and certain traditions you do not wish to follow, yet you give us no reason aside from tradition to accept your rationale for following the traditions that you like.
Simple Jennifer, I won't be able to discriminate against them anymore. Either will religious groups etc etc. As soon as gays achieve their goal which is to use the government to force social acceptance of their lifestyle on the rest of the public, my right of freedom of association will be diminished.
That's an entirely seperate issue of course. I support your right to be a bigot. I don't support your efforts to etch your bigotry into law.
Right now gays can enter into any contract they want.
No they can't. A gay couple cannot enter into a contract guarantee either the right to sue for loss of consortium. That right is ONLY derived from statute. There are innumerable other similar rights one cannot contract for except through state sanctioned marraige. Now, I've told you this many times in the past, and you've chosen to ignore this fact; one can only presume that you are too dense to understand this concept or you are too prideful to admit when you are clearly wrong.
I know it doesn't mean that the state of Ohio now forbids the private sector from providing health benefits to gay couples if they choose to do so.
Actually, you don't know that because the law has yet to be interpreted by the courts. And you can bet that such practices will be challenged by Christians wanting to force employers from granting such.
Besides not being able to file a joint tax return, I just don't see what rights they're left out off.
Right to sue for loss of consortium is one of the rights denied anyone lacking a state sanctioned marraige.
No Christianity, no West.
The West existed prior to Christianity of course; that's why folks are always referring to Greco-Roman civilization.
No West, no freedom, no human rights, no America.
That's a rather dubious claim (especially from someone like yourself who claims at the same time that the concept of human liberty transcends cultures). Concepts like freedom, human rights, etc. existed prior to the rise of Christianity in both the West and other places after all. Indeed, the first laws to forbid torture and the like came out of India.
It was Christianity that said each individual has a soul...
That concept too is neither unique to Christianity, nor was Christianity the first to ever come upon it.
...and infinite worth.
Read your Bible. Human beings clearly do not have "infinite worth" in that text. If they did have "infinite worth" one wonders why they are lost and headed for hell without the grace of Christ? Clearly you are completely ignorant of the Old and New Testament's teachings re: the worth of humans either individually or collectively.
As far as Christianity creating capitalism, one wonders if that's the case why capitalism has existed in non-Christian cultures.
It was the Church that started to put limits on Kings which enabled freer cross border commerce.
Which of course explains why it was the countries with the state churches that were most seperate from Rome and most dominated by the state that developed the fastest since the Reformation. Britain with its own state church, the Netherlands with its toleration of religious diversity, France with its nationalist Catholic Church that was generally at logger heads with Rome, etc., all developed far faster than Italy, Spain, Portugal, etc. Indeed, you'll also note that even in Italy, the city-states with the most distance from Church power were the fastest to develop in the Renaissance; once the Church re-asserted itself, that development collapsed. Furthermore, those areas of Europe that flourished in the 13th century Renaissance, also were those most distant from the control of the Church. So your claim does not hold up to the test of the historical record.
Then the Magna Carta, the first document which established a contract of order recognizing the rights of men.
The concept of inalienable rights and liberties was first articulated by the ancient Greek philosophers. Such concepts were often part of city legal codes in the ancient world. Care to spout some more falsities Billyray?
Homosexual marriage has no history or tradition, while polygamy is commonplace throughout all history.
That doesn't explain where the harm occurs. Indeed, you still have yet to address that point. Mere loss of tradition can't justify your argument.
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