Gay marriage lawsuit filed in New Jersey yesterday
June 27, 2002 10:38 AM Subscribe
Gay marriage lawsuit filed in New Jersey yesterday The website of the Lambda Legal Defense and Education Fund, which represents the plaintiffs, contains lots of information about the case. News article here.
"The goal, Lambda officials said, is full equality"
Can't argue with that.
Can we?
posted by dash_slot- at 10:44 AM on June 27, 2002
Can't argue with that.
Can we?
posted by dash_slot- at 10:44 AM on June 27, 2002
Can't argue with that. Can we?
Oh yes we can! My partner and I don't want just full equality. We want those full-blown special rights for which the queer conspiracy has been working behind the scenes for so long...
(but I suppose if we had to, we could settle for plain ol' equality)
posted by jburka at 10:55 AM on June 27, 2002
Oh yes we can! My partner and I don't want just full equality. We want those full-blown special rights for which the queer conspiracy has been working behind the scenes for so long...
(but I suppose if we had to, we could settle for plain ol' equality)
posted by jburka at 10:55 AM on June 27, 2002
It was only a matter of time, now that we've taken God out of our pledge.
Oh, the horror!
posted by mr_crash_davis at 11:00 AM on June 27, 2002
Oh, the horror!
posted by mr_crash_davis at 11:00 AM on June 27, 2002
personally i'm fighting for the right to shoot people i don't like with lasers from my eyes. that will be my special right.
posted by rhyax at 11:04 AM on June 27, 2002
posted by rhyax at 11:04 AM on June 27, 2002
[It was only a matter of time, now that we've taken God out of our pledge.]
Thank you so much for that chuckle. Hopefully they'll get what they are asking for.
posted by revbrian at 11:07 AM on June 27, 2002
Thank you so much for that chuckle. Hopefully they'll get what they are asking for.
posted by revbrian at 11:07 AM on June 27, 2002
Call me the idealist that I am, but I have serious trouble stomaching the idea that there are groups trying to stop this!! Exactly how meddlesome do you have to be to try to prevent other people's happiness because they choose a lifestyle you think is wrong? Is has nothing to do with them! They can go live their happy, close-minded lives in a their closet somewhere else without inflicting their standards on other people.
posted by LuxFX at 11:07 AM on June 27, 2002
posted by LuxFX at 11:07 AM on June 27, 2002
LuxFX: people may say that the business of America is business, but we definitely have a problem with minding our own.
posted by UncleFes at 11:24 AM on June 27, 2002
posted by UncleFes at 11:24 AM on June 27, 2002
Marriage has been continuously confined to one man and one woman for the thousand year history of the Anglo American legal system, a system which, as a matter of course, exerted much force and judgment upon "lifestyles" customarily thought to be wrong.
These sort of cases are the most profound sort of overreaching misuse of the legal system, and are stupid, to boot. Just like the Pledge of Allegiance decision, and, more to the point, like they gay-marriage-favorable court decisions of Hawai'i in the mid-90's, they do more harm to their cause in backlash ignited than in freedom extended. It would take only a few favorable rulings on cases like this, added to the decisions in Vermont of recent years, to assure the Marriage Amendment of passing. (The marriage amendment would deny all federal incidents of marriage to gay couples and forbid any state or federal court anywhere of mandating any extension to gay couples of the benefits of marriage.)
Like it or not, the public welfare benefit of extending the benefits of marriage to couples other than one man and one woman must be proven in the political marketplace and should be adopted through the legislative process, if at all.
posted by MattD at 11:29 AM on June 27, 2002
These sort of cases are the most profound sort of overreaching misuse of the legal system, and are stupid, to boot. Just like the Pledge of Allegiance decision, and, more to the point, like they gay-marriage-favorable court decisions of Hawai'i in the mid-90's, they do more harm to their cause in backlash ignited than in freedom extended. It would take only a few favorable rulings on cases like this, added to the decisions in Vermont of recent years, to assure the Marriage Amendment of passing. (The marriage amendment would deny all federal incidents of marriage to gay couples and forbid any state or federal court anywhere of mandating any extension to gay couples of the benefits of marriage.)
Like it or not, the public welfare benefit of extending the benefits of marriage to couples other than one man and one woman must be proven in the political marketplace and should be adopted through the legislative process, if at all.
posted by MattD at 11:29 AM on June 27, 2002
Marriage has been continuously confined to one man and one woman for the thousand year history of the Anglo American legal system
What an interesting statement.
posted by ColdChef at 11:36 AM on June 27, 2002
What an interesting statement.
posted by ColdChef at 11:36 AM on June 27, 2002
ColdChef: the purpose of my statement was left implicit, when I should have been explicit: those who wish to change long-established elements of legal system whose entire value depends upon stability and continuity bear the burden, procedurally and substantively, of showing why such changes are valid and justify changes to the system.
Whatever else can be said about gay marriage, pro or con, what simply cannot be said with any legal honesty is that it is in any way, shape or form supported by the underlying principals of our law to which the plaintiffs appeal. It is, in fact, a radical change from the principals of our law, which can be introduced into it only through deliberate debate and the political process
posted by MattD at 11:44 AM on June 27, 2002
Whatever else can be said about gay marriage, pro or con, what simply cannot be said with any legal honesty is that it is in any way, shape or form supported by the underlying principals of our law to which the plaintiffs appeal. It is, in fact, a radical change from the principals of our law, which can be introduced into it only through deliberate debate and the political process
posted by MattD at 11:44 AM on June 27, 2002
These sort of cases are the most profound sort of overreaching misuse of the legal system, and are stupid, to boot.
MattD, there is a theory that legislatures, which are (in theory) accountable only to the majority, are notoriously bad at protecting minority rights, and that therefore the only viable way to protect minority rights is through the court system.
Just like the Pledge of Allegiance decision, and, more to the point, like they gay-marriage-favorable court decisions of Hawai'i in the mid-90's, they do more harm to their cause in backlash ignited than in freedom extended. It would take only a few favorable rulings on cases like this, added to the decisions in Vermont of recent years, to assure the Marriage Amendment of passing.
And that's another valid theory that has its supporters. There are examples for each side, really. One might say that Brown v. Board of Education created a huge anti-integration backlash in the South. Furthermore, at least 10 years after the Brown decision, most southern schools remained segregated.
On the other hand, if the courts hadn't stepped in, who knows when integration might have occurred?
posted by Tin Man at 11:47 AM on June 27, 2002
MattD, there is a theory that legislatures, which are (in theory) accountable only to the majority, are notoriously bad at protecting minority rights, and that therefore the only viable way to protect minority rights is through the court system.
Just like the Pledge of Allegiance decision, and, more to the point, like they gay-marriage-favorable court decisions of Hawai'i in the mid-90's, they do more harm to their cause in backlash ignited than in freedom extended. It would take only a few favorable rulings on cases like this, added to the decisions in Vermont of recent years, to assure the Marriage Amendment of passing.
And that's another valid theory that has its supporters. There are examples for each side, really. One might say that Brown v. Board of Education created a huge anti-integration backlash in the South. Furthermore, at least 10 years after the Brown decision, most southern schools remained segregated.
On the other hand, if the courts hadn't stepped in, who knows when integration might have occurred?
posted by Tin Man at 11:47 AM on June 27, 2002
Prove it, MattD. There has been references to marriages in the Church between men going back to the middle ages. If that was substantiated, would you be satisfied? I doubt it.
If the NAACP had waited for Congress to pass Civil Rights legislation, would they still be waiting now?
"...they do more harm to their cause in backlash ignited than in freedom extended." How could that be true? The cause is equality: it has always been a fight to get it.
Gay people are denied rights and physically attacked every day. To wait for The Man to condescend to our equality is self-defeating.
posted by dash_slot- at 11:50 AM on June 27, 2002
If the NAACP had waited for Congress to pass Civil Rights legislation, would they still be waiting now?
"...they do more harm to their cause in backlash ignited than in freedom extended." How could that be true? The cause is equality: it has always been a fight to get it.
Gay people are denied rights and physically attacked every day. To wait for The Man to condescend to our equality is self-defeating.
posted by dash_slot- at 11:50 AM on June 27, 2002
Actually, here's some evidence for you...Same-sex Unions in Pre-Modern Europe
..."Indeed, actual rituals uniting such couples with the Christian church's blessing exist in the documentary record."...
Oh, the depravity.
posted by dash_slot- at 12:32 PM on June 27, 2002
..."Indeed, actual rituals uniting such couples with the Christian church's blessing exist in the documentary record."...
Oh, the depravity.
posted by dash_slot- at 12:32 PM on June 27, 2002
MattD: those who wish to change long-established elements of legal system whose entire value depends upon stability and continuity
substitute 'any' for 'legal' and maybe this explains why it was only in the last decade that the Catholic Church issued a formal apology to Galileo, for excommunicating him for spreading ideas that the earth wasn't the center of the universe.
since when does 'long-established' equal 'good for everyone' ??
posted by LuxFX at 1:20 PM on June 27, 2002
substitute 'any' for 'legal' and maybe this explains why it was only in the last decade that the Catholic Church issued a formal apology to Galileo, for excommunicating him for spreading ideas that the earth wasn't the center of the universe.
since when does 'long-established' equal 'good for everyone' ??
posted by LuxFX at 1:20 PM on June 27, 2002
(1) I reject the premise that the courts acted ahead of the political and legislative process in the race-civil-rights period of the 1950's and onward, and that gay rights litigation can proceed in the same "only courts can protect minorities" manner.
The 13th, 14th, and 15th Amendments to the US Constitution, adopted in the 1860's, were by their intention and on their face a clear legal basis to invalidate state-sponsored affirmative segregation and denial of franchise. The federal courts, by and large since the end of Reconstruction, and consistently since Plessy, had chosen to allow the states of the former Confederacy to defy the Constitution, and the courts of the 1950's and 1960's decided to reverse that action.
(2) It is important to note that I did not introduce the "Church" into the discussion. I was referring to the civil system of Anglo-American laws, and that system, only.
The evidence (and I use that term guardedly) that the medieval and earlier Church may have sanctioned some kinds of single-sex unions, has absolutely no bearing on the proposition that our present-day civil laws, as they now stand, provide any support whatever to an entitlement to single-sex unions under our civil laws.
posted by MattD at 1:32 PM on June 27, 2002
The 13th, 14th, and 15th Amendments to the US Constitution, adopted in the 1860's, were by their intention and on their face a clear legal basis to invalidate state-sponsored affirmative segregation and denial of franchise. The federal courts, by and large since the end of Reconstruction, and consistently since Plessy, had chosen to allow the states of the former Confederacy to defy the Constitution, and the courts of the 1950's and 1960's decided to reverse that action.
(2) It is important to note that I did not introduce the "Church" into the discussion. I was referring to the civil system of Anglo-American laws, and that system, only.
The evidence (and I use that term guardedly) that the medieval and earlier Church may have sanctioned some kinds of single-sex unions, has absolutely no bearing on the proposition that our present-day civil laws, as they now stand, provide any support whatever to an entitlement to single-sex unions under our civil laws.
posted by MattD at 1:32 PM on June 27, 2002
LuxFX: stability and predictability are at the core of the value of any legal system.
A legal system works only when it operates predictably: if I do this and this, I won't go to jail, but if I do that, I will be hauled off. I can lend money to X person under the terms of Y contract, because I know that the courts will enforce Y contract and will require X person to pay me.
Because families have such long time horizons, it is particularly important for family law to be stable. Both in deliberate intentions, and in the unpredictable orders that courts might give in response, these cases have the potential to terribly disrupt the legal structure of support, inheritance, insurance, child custody, pension and social benefits, etc.
None of these is a reason not consider extending incidents of marriage to same sex couples. Each individually is, and all collectively are overwhelmingly, is a reason not to permit judges to restructure marriage.
posted by MattD at 1:41 PM on June 27, 2002
A legal system works only when it operates predictably: if I do this and this, I won't go to jail, but if I do that, I will be hauled off. I can lend money to X person under the terms of Y contract, because I know that the courts will enforce Y contract and will require X person to pay me.
Because families have such long time horizons, it is particularly important for family law to be stable. Both in deliberate intentions, and in the unpredictable orders that courts might give in response, these cases have the potential to terribly disrupt the legal structure of support, inheritance, insurance, child custody, pension and social benefits, etc.
None of these is a reason not consider extending incidents of marriage to same sex couples. Each individually is, and all collectively are overwhelmingly, is a reason not to permit judges to restructure marriage.
posted by MattD at 1:41 PM on June 27, 2002
First I want to point something out. The 13th Amendment outlawed slavery, and the 15th Amendment said we couldn't deny people the franchise on the basis of race. Neither has any legal relation to school segregation. The 14th, states must guarantee equal protection -- okay, maybe I can buy that.
But, MattD: if we shouldn't use the courts to get equality, and the legislatures (which serve the majority) won't give it to us, what are we supposed to do?
posted by Tin Man at 1:54 PM on June 27, 2002
But, MattD: if we shouldn't use the courts to get equality, and the legislatures (which serve the majority) won't give it to us, what are we supposed to do?
posted by Tin Man at 1:54 PM on June 27, 2002
Just buck up and accept one of the most blatant examples of discrimination in the modern world, I suppose, Tin Man.
My pal Andrew Sullivan writes often and convincingly about this subject, outlining this cause in terms even a social conservative could understand.
The funny thing is how much flack he gets from left-wing 'gay rights advocates' for arguing in favor of gay marriage. Seems that some on the gay left feel that marriage is a 'straight thing' (basically the same argument the Christian Coalition uses) and that it's retrograde for some to wish to be 'normal', or to exist in a state where gay identity is no longer necessary. This subcultural polyamority may be desireable for some people, but to fight against and defame those who advocate equal marriage rights is absurd. I often think our worst enemies are the ones on our own side. At least it's possible to spot James Dobson or Pat Buchanan a mile away.
posted by evanizer at 3:06 PM on June 27, 2002
My pal Andrew Sullivan writes often and convincingly about this subject, outlining this cause in terms even a social conservative could understand.
The funny thing is how much flack he gets from left-wing 'gay rights advocates' for arguing in favor of gay marriage. Seems that some on the gay left feel that marriage is a 'straight thing' (basically the same argument the Christian Coalition uses) and that it's retrograde for some to wish to be 'normal', or to exist in a state where gay identity is no longer necessary. This subcultural polyamority may be desireable for some people, but to fight against and defame those who advocate equal marriage rights is absurd. I often think our worst enemies are the ones on our own side. At least it's possible to spot James Dobson or Pat Buchanan a mile away.
posted by evanizer at 3:06 PM on June 27, 2002
Of course, there is a longstanding and equally valid response to MattD, one nicely enunciated by Lord Macaulay in 1831. He was discussing Jewish civil disabilities:
"Surely no Christian can deny that every human being has a right to be allowed every gratification which produces no harm to others, and to be spared every mortification which produces no good to others. Is it not a source of mortification to a class of men that they are excluded from political power? If it be, they have, on Christian principles, a right to be freed from that mortification, unless it can be shown that their exclusion is necessary for the averting of some greater evil. The presumption is evidently in favor of toleration. It is for the prosecutor to make out his case."
Macaulay was speaking, one might note, at a time when it was generally agreed that Jews deserved to be treated "humanely," but were considered objectively inferior to Christians in a moral sense. Indeed, he is partly arguing against the claim that, insofar as the Jews rejected Christ, they were rightly oppressed; to relieve them would mean going against God's will.
Jewish emancipation doesn't appear to have caused much of a backlash, when it finally passed (1858); however, the Catholic Emancipation Act (1829) did escalate anti-Catholic hostility considerably. One could make a case that the Act was one of the nineteenth century's first examples of moral relativism in action (the basic argument being that toleration was to be greatly preferred to an armed uprising in Ireland). I've always thought that anti-Catholicism is a much better analogy to anti-gay sentiment than racism is, since the arguments overlap considerably (right down to the "Roman Catholicism is a danger to the family" bit). See this, this, and this.
On a different note: Be careful of the medieval same-sex marriage stuff; the late John Boswell's arguments on the subject were trashed fairly thoroughly. His earlier work is considerably better.
posted by thomas j wise at 3:25 PM on June 27, 2002
"Surely no Christian can deny that every human being has a right to be allowed every gratification which produces no harm to others, and to be spared every mortification which produces no good to others. Is it not a source of mortification to a class of men that they are excluded from political power? If it be, they have, on Christian principles, a right to be freed from that mortification, unless it can be shown that their exclusion is necessary for the averting of some greater evil. The presumption is evidently in favor of toleration. It is for the prosecutor to make out his case."
Macaulay was speaking, one might note, at a time when it was generally agreed that Jews deserved to be treated "humanely," but were considered objectively inferior to Christians in a moral sense. Indeed, he is partly arguing against the claim that, insofar as the Jews rejected Christ, they were rightly oppressed; to relieve them would mean going against God's will.
Jewish emancipation doesn't appear to have caused much of a backlash, when it finally passed (1858); however, the Catholic Emancipation Act (1829) did escalate anti-Catholic hostility considerably. One could make a case that the Act was one of the nineteenth century's first examples of moral relativism in action (the basic argument being that toleration was to be greatly preferred to an armed uprising in Ireland). I've always thought that anti-Catholicism is a much better analogy to anti-gay sentiment than racism is, since the arguments overlap considerably (right down to the "Roman Catholicism is a danger to the family" bit). See this, this, and this.
On a different note: Be careful of the medieval same-sex marriage stuff; the late John Boswell's arguments on the subject were trashed fairly thoroughly. His earlier work is considerably better.
posted by thomas j wise at 3:25 PM on June 27, 2002
The argument for gay marriage, and the argument that it can be obtained other than through the enactment of new legislation, are totally different.
The former is a question of public policy, and the competition between modern values (equality above all else) and traditional morality (religion and custom above all else).
THe latter is a question of the fundamental structure of law and the power of the courts, the constitution, and the legislature, under the Anglo-American legal system as mediated by the American constitutional federalism.
They should, in my opinion, have nothing to do with one another. In my opinion, the courts will properly be involved once a state voluntarily enacts gay marriage, and then the full faith and credit clause of the competition is tested against the Defense of Marriage Act (which permits any state and the federal government to disregard gay marriages contracted under the laws of any other state).
As for the various reform, emancipation, and estate tax acts of the United Kingdom, which transformed it over the course of 300 years from a three-way partnership of the king, the titled aristocracy (the Lords), and the landed Protestant gentlemen, many of whom were sons or grandsons of titled aristocracy (the Commons), into today's universal suffrage one-chambered (for all intents and purposes) parliament, each was duly enacted in accordance with the laws then in effect. None was imposed by judicial fiat, and each was debated and carefully considered for the changes it effected.
posted by MattD at 3:32 PM on June 27, 2002
The former is a question of public policy, and the competition between modern values (equality above all else) and traditional morality (religion and custom above all else).
THe latter is a question of the fundamental structure of law and the power of the courts, the constitution, and the legislature, under the Anglo-American legal system as mediated by the American constitutional federalism.
They should, in my opinion, have nothing to do with one another. In my opinion, the courts will properly be involved once a state voluntarily enacts gay marriage, and then the full faith and credit clause of the competition is tested against the Defense of Marriage Act (which permits any state and the federal government to disregard gay marriages contracted under the laws of any other state).
As for the various reform, emancipation, and estate tax acts of the United Kingdom, which transformed it over the course of 300 years from a three-way partnership of the king, the titled aristocracy (the Lords), and the landed Protestant gentlemen, many of whom were sons or grandsons of titled aristocracy (the Commons), into today's universal suffrage one-chambered (for all intents and purposes) parliament, each was duly enacted in accordance with the laws then in effect. None was imposed by judicial fiat, and each was debated and carefully considered for the changes it effected.
posted by MattD at 3:32 PM on June 27, 2002
MattD: A legal system works only when it operates predictably
agreed....but what does this have to do with upholding longstanding practices? as long as we're referencing the constitution, Article V talks about a process called Amendments, which is a cornerstone of the US Government. It means we don't have to chisel our laws into stone for all time, but that they are open for change. Just because something has been normal for a long time doesn't mean we can't change it --
Marriage has been continuously confined to one man and one woman for the thousand year history of the Anglo American legal system
yes, and there was such a thing as slaves once, too. for quite some time....
posted by LuxFX at 3:40 PM on June 27, 2002
agreed....but what does this have to do with upholding longstanding practices? as long as we're referencing the constitution, Article V talks about a process called Amendments, which is a cornerstone of the US Government. It means we don't have to chisel our laws into stone for all time, but that they are open for change. Just because something has been normal for a long time doesn't mean we can't change it --
Marriage has been continuously confined to one man and one woman for the thousand year history of the Anglo American legal system
yes, and there was such a thing as slaves once, too. for quite some time....
posted by LuxFX at 3:40 PM on June 27, 2002
LuxFX, I don't think MattD is foreclosing the amendment of the Constitution. He's saying that the legislature is the proper venue to decide this issue and the court is not.
However -- in my opinion, MattD, structure is not absolute. It was created by human beings; it wasn't handed down to us from God. Heck, the U.S. Constitution is technically an illegal document, since its authors were merely supposed to fix the Articles of Confederation.
Law changes as public opinion changes. Whether the courts are the "proper" venue really isn't the issue -- it doesn't exist in a vacuum. If the courts make a decision and the public accepts it, then retrospectively the court's decision generally will be seen as proper (see Brown). If there's a public backlash, the decision generally will be seen as improper.
I think you might be hiding behind structure. I'm not totally sure of that, but I do know that you haven't stated whether you're for gay marriage or against it. In my opinion, if you believe in the rightness of something strongly enough, either the legislature OR the court is the proper venue to get your desired result.
posted by Tin Man at 3:52 PM on June 27, 2002
However -- in my opinion, MattD, structure is not absolute. It was created by human beings; it wasn't handed down to us from God. Heck, the U.S. Constitution is technically an illegal document, since its authors were merely supposed to fix the Articles of Confederation.
Law changes as public opinion changes. Whether the courts are the "proper" venue really isn't the issue -- it doesn't exist in a vacuum. If the courts make a decision and the public accepts it, then retrospectively the court's decision generally will be seen as proper (see Brown). If there's a public backlash, the decision generally will be seen as improper.
I think you might be hiding behind structure. I'm not totally sure of that, but I do know that you haven't stated whether you're for gay marriage or against it. In my opinion, if you believe in the rightness of something strongly enough, either the legislature OR the court is the proper venue to get your desired result.
posted by Tin Man at 3:52 PM on June 27, 2002
Tin Man: in a democracy, the minority is simply not entitled to things the majority doesn't wish it to have, with the exception of specifically carved-out exceptions.
This leaves one with two democratic alternatives: persuade the majority (which was, Brown vs. Board notwithstanding, the tactic in chief of the race civil rights movement of the 1950's and 1960's) or become the majority or a big enough minority to be able to figure in political alliances (the winning strategy for most gay acceptance moves in certain businesses and in the big metropolitan areas).
posted by MattD at 3:55 PM on June 27, 2002
This leaves one with two democratic alternatives: persuade the majority (which was, Brown vs. Board notwithstanding, the tactic in chief of the race civil rights movement of the 1950's and 1960's) or become the majority or a big enough minority to be able to figure in political alliances (the winning strategy for most gay acceptance moves in certain businesses and in the big metropolitan areas).
posted by MattD at 3:55 PM on June 27, 2002
MattD,
I agree that the law must remain predictable; however, the law does change. That is the strength of English style common law, IMO: that the law can change gradually in response to changing conditions without the burdensome process of creating laws for every particular point of law that needs to change.
In fact, I remember reading an opinion by Justice Rehnquist that neatly summarized the "law of changing the law." (Unfortunately, I don't remember the name of the opinion off the top of my head, nor did I agree in many of the particulars he cited.)
Basically, the the judiciary changes the through a law through a predictable process that contains elements that must all work together. (1) "Society" must be at least somewhat ready for the change, either because the rule of law does not work, the reasons the rule of law was held by courts in the first place are no longer valid, and/or because the polity's attitudes etc. have changed. (2) Legal scholars will note this and agitate for a change in law in legal reviews, etc. (3) Appellate judges will cite the rule of law in dissents and even in a few holdings. (4) Number 3 will create a line of case law that can be cited as alternative authority in support of holdings using the new line of case law. (5) Either the new and the old lines of cases will co-exist in different jurisdictions, or, especially in controversial cases like the gay marriage issue, the new one will replace the other. (Of course, many times the new line of cases never becomes law at any point during the above process.)
So, you see, the law does not remain static, but changes in a predictable way. The legislature can check the courts in its change by repudiating the new rule of law, or confirm it by doing nothing. The law does not change only when the legislature acts (or when there is a referendum change in jurisdictions that do that). This is a good thing, when done predictably, as you write, because sometimes the legislature cannot or will not act in a matter where the law needs to be changed.
And, of course, the courts' acting in this way is especially important where civil liberties are concerned. Constitutional law and the way we read the Constitution are constantly changing in the above manner. So sometimes rules of law and statutes potentially affecting civil rights need to be examined in light of constitutional law as currently interpreted with help by the above process. Ours is not an unlimited democracy, but it is the courts' duty to check the legislatures and Congress where they violate the Constitution. The process is not arbitrary, but a deliberate process in our government. This is what makes the law interesting to study.
In the case of gay marriage, I suspect that the law is not ready to change yet, judicially. (This says nothing about a legislature's acting.) Although the legal process spelled out above in this case is at "#3" and in some cases "#4," I'm not sure that "#1" has been satisfied. I think proponents of gay marriage have some more work to do in preparing "society" to accept judicial changes to the institution of marriage. If courts continue to press gay movement in the current environment, they will lose their legitimacy, which is their greatest strength wit regard to the other branches in the separation of powers scheme.
This is not to say that society has to embrace gay marriages wholeheartedly for it to become legitimate for the courts to act. In fact, once a certain point is reached, judicial decisions can help the polity accept certain changes that wouldn't pass legislatively, i.e., Brown and desegregation. What I am writing is that I think there needs to be a little more work done in getting the body politic to accept homosexuality before the courts can act on helping to create gay marriages without losing legitimacy.
posted by JKevinKing at 5:02 PM on June 27, 2002
I agree that the law must remain predictable; however, the law does change. That is the strength of English style common law, IMO: that the law can change gradually in response to changing conditions without the burdensome process of creating laws for every particular point of law that needs to change.
In fact, I remember reading an opinion by Justice Rehnquist that neatly summarized the "law of changing the law." (Unfortunately, I don't remember the name of the opinion off the top of my head, nor did I agree in many of the particulars he cited.)
Basically, the the judiciary changes the through a law through a predictable process that contains elements that must all work together. (1) "Society" must be at least somewhat ready for the change, either because the rule of law does not work, the reasons the rule of law was held by courts in the first place are no longer valid, and/or because the polity's attitudes etc. have changed. (2) Legal scholars will note this and agitate for a change in law in legal reviews, etc. (3) Appellate judges will cite the rule of law in dissents and even in a few holdings. (4) Number 3 will create a line of case law that can be cited as alternative authority in support of holdings using the new line of case law. (5) Either the new and the old lines of cases will co-exist in different jurisdictions, or, especially in controversial cases like the gay marriage issue, the new one will replace the other. (Of course, many times the new line of cases never becomes law at any point during the above process.)
So, you see, the law does not remain static, but changes in a predictable way. The legislature can check the courts in its change by repudiating the new rule of law, or confirm it by doing nothing. The law does not change only when the legislature acts (or when there is a referendum change in jurisdictions that do that). This is a good thing, when done predictably, as you write, because sometimes the legislature cannot or will not act in a matter where the law needs to be changed.
And, of course, the courts' acting in this way is especially important where civil liberties are concerned. Constitutional law and the way we read the Constitution are constantly changing in the above manner. So sometimes rules of law and statutes potentially affecting civil rights need to be examined in light of constitutional law as currently interpreted with help by the above process. Ours is not an unlimited democracy, but it is the courts' duty to check the legislatures and Congress where they violate the Constitution. The process is not arbitrary, but a deliberate process in our government. This is what makes the law interesting to study.
In the case of gay marriage, I suspect that the law is not ready to change yet, judicially. (This says nothing about a legislature's acting.) Although the legal process spelled out above in this case is at "#3" and in some cases "#4," I'm not sure that "#1" has been satisfied. I think proponents of gay marriage have some more work to do in preparing "society" to accept judicial changes to the institution of marriage. If courts continue to press gay movement in the current environment, they will lose their legitimacy, which is their greatest strength wit regard to the other branches in the separation of powers scheme.
This is not to say that society has to embrace gay marriages wholeheartedly for it to become legitimate for the courts to act. In fact, once a certain point is reached, judicial decisions can help the polity accept certain changes that wouldn't pass legislatively, i.e., Brown and desegregation. What I am writing is that I think there needs to be a little more work done in getting the body politic to accept homosexuality before the courts can act on helping to create gay marriages without losing legitimacy.
posted by JKevinKing at 5:02 PM on June 27, 2002
Of course, you have to consider why the government even has marriage in the first place. Consider that marriage is, in its purest form, a religious commitment before the god (or supreme being) that you worship.
The basic extension of that was the government being in the business of handing out slips of paper that indicate marriage. The premise of this was to really tidy things up, and was about property more than religion. But things being as they were in those days, marriage was between a man and a woman, and the thought of anything differant didn't even enter into someone's mind, let alone considering all alternatives.
Now given that government sanctioning of marriage is simply a procedural one, and not one of moral implication, then the concept that it be limited to one man and one woman is discriminatory, and really makes no sense in a secular society.
People talk about the sanctity of marriage, and keeping it as it is. But the fact is, is that there is no secular reasoning to this. So you should extend the right to same-sex partners. But then some might argue that you've got the issue that why have marriage at all, if its not going to be defined as a man-woman marriage. Good question. Really, in the age of contracts, there is no need for marriage, and in a secular society, it becomes an uneccessary tool. So the result is the irrelevance of marriage, and so the government has no place actually involving itself in marriage.
The fact is, is that when these laws were written, nobody would even think about a homosexual, let alone one marrying another one. But as all societies, society evolved and changed, and viewpoints that would have gotten you burned alive in the 1700s became tolerable in the 1900s.
Often, in cases like this, people invoke "the founding fathers" to support their case, saying that it is not what they had in mind. Fact is, is that it is (1) irrelevant, and (2) I Don't Care. Societies change, and so must the concepts of freedoms and liberties for all people.
Some would argue (as they have above) that marriage is a balance of society, and that we shouldn't mess with the status quo that exists. Well, discrimination is discrimination, however you package it. Maintaining the status quo of law is neither acceptable nor right. The economy relied heavily on slaves in the South, does that mean we should have allowed it?
posted by benjh at 5:28 PM on June 27, 2002
The basic extension of that was the government being in the business of handing out slips of paper that indicate marriage. The premise of this was to really tidy things up, and was about property more than religion. But things being as they were in those days, marriage was between a man and a woman, and the thought of anything differant didn't even enter into someone's mind, let alone considering all alternatives.
Now given that government sanctioning of marriage is simply a procedural one, and not one of moral implication, then the concept that it be limited to one man and one woman is discriminatory, and really makes no sense in a secular society.
People talk about the sanctity of marriage, and keeping it as it is. But the fact is, is that there is no secular reasoning to this. So you should extend the right to same-sex partners. But then some might argue that you've got the issue that why have marriage at all, if its not going to be defined as a man-woman marriage. Good question. Really, in the age of contracts, there is no need for marriage, and in a secular society, it becomes an uneccessary tool. So the result is the irrelevance of marriage, and so the government has no place actually involving itself in marriage.
The fact is, is that when these laws were written, nobody would even think about a homosexual, let alone one marrying another one. But as all societies, society evolved and changed, and viewpoints that would have gotten you burned alive in the 1700s became tolerable in the 1900s.
Often, in cases like this, people invoke "the founding fathers" to support their case, saying that it is not what they had in mind. Fact is, is that it is (1) irrelevant, and (2) I Don't Care. Societies change, and so must the concepts of freedoms and liberties for all people.
Some would argue (as they have above) that marriage is a balance of society, and that we shouldn't mess with the status quo that exists. Well, discrimination is discrimination, however you package it. Maintaining the status quo of law is neither acceptable nor right. The economy relied heavily on slaves in the South, does that mean we should have allowed it?
posted by benjh at 5:28 PM on June 27, 2002
What's the actual purpose of marriage in New Jersey society? As I see it there are two: (1) social recognition of sexual and emotional partnership; (2) clear establishment of a default contractual relationship between spouses, and between spouses and children joint and separate, for purposes of inheritance, taxation, joint liability, etc.
Purpose (1) is of very little interest to the legal system. Considering the prevalence of affairs, extra- and pre- 'marital' sex (where marital includes a de facto relationship), single parenthood, easy divorce, and serial monogamy in New Jersey society, it seems to be of diminishing interest to anyone. It's normally enough to to introduce a person as 'my partner' to have one's friends accept that person as your sexual and emotional partner, for exactly as long as you choose to recognise them as such (whereupon they become 'so-and-so's ex', as much as it matters). Even the idea of lifelong marriage seems to be a thing of the past. Nobody is surprised when young couples divorce, and (although I am not in NJ) I am sure there are people out there waiting for a friend's marriage to break up so that they can date the friend, in much the same way as they await the exit of less formally committed partners.
So, homo or hetero, unless you hang out with a distinctly non-mainstream crowd, I don't think your friends will treat your relationship any differently if you marry as opposed to live together. I don't think the general public give a damn either way. The general public rarely do.
Purpose (2) can be achieved, for purposes of inheritance and joint liability. With a few well-drafted contracts and powers of attorney, people can so entwine themselves that they become, for almost all legal purposes, almost one person. Heterosexual couples can go further than standard marriage in doing this sort of thing, but it's not done because it's not necessary and it's against the mores of the culture. Basically such arrangements are the polar opposite of pre-nuptial agreements. The downside for a homosexual couple is a requirement, due to cultural prejudice and not the fault of law, to prove their contractual entwinement a lot more often than a heterosexual couple would have to prove their marriage.
So these two points would seem to be enough to dispose of an outright need for homosexual marriage, since for these intents and purposes, a half-assed kind of homosexual marriage exists already. However there is a complicating factor: external contractual and statutory rights. For example, some places (and I'm not familiar with New Jersey's laws on the subject) extend a spouse immunity from giving legal testimony against their partner. [Which isn't much of a 'right', since a lover or relative under compulsion is the second most hostile possible witness for the prosecution (the only more hostile is a co-conspirator in a crime).] Spousal benefits for insurances etc are subject to the terms of that contract, and while insurance contracts that pay only to a legally married spouse upon the death or permanent severe mental impairment of the insured are nowadays rare, they do exist.
Personally I favor a minimal solution, a 'Marital Declaration Act', which gives people aged 21 or older the right to declare themselves to be each others' spouses, and to be treated for all purposes of contract law and statutory privileges as each others' spouses. This arrangement must be mutual and voluntary and can be repudiated by either spouse at any time prior to the commencement of any relevant legal proceedings.
While we're at it, let's fix up polygamy law. I see no moral impediment for consenting adults to marry multiple partners at once, and the 'Marital Declaration Act' could divide rights and duties equally between the spouses of a given person, where these duties are divisible, and give a judge the right to divide them where they are not.
This might lead to people getting married for purposes other than love. Ironically that is by far the most traditional form of marriage.
Ash.
posted by aeschenkarnos at 6:36 PM on June 27, 2002
Purpose (1) is of very little interest to the legal system. Considering the prevalence of affairs, extra- and pre- 'marital' sex (where marital includes a de facto relationship), single parenthood, easy divorce, and serial monogamy in New Jersey society, it seems to be of diminishing interest to anyone. It's normally enough to to introduce a person as 'my partner' to have one's friends accept that person as your sexual and emotional partner, for exactly as long as you choose to recognise them as such (whereupon they become 'so-and-so's ex', as much as it matters). Even the idea of lifelong marriage seems to be a thing of the past. Nobody is surprised when young couples divorce, and (although I am not in NJ) I am sure there are people out there waiting for a friend's marriage to break up so that they can date the friend, in much the same way as they await the exit of less formally committed partners.
So, homo or hetero, unless you hang out with a distinctly non-mainstream crowd, I don't think your friends will treat your relationship any differently if you marry as opposed to live together. I don't think the general public give a damn either way. The general public rarely do.
Purpose (2) can be achieved, for purposes of inheritance and joint liability. With a few well-drafted contracts and powers of attorney, people can so entwine themselves that they become, for almost all legal purposes, almost one person. Heterosexual couples can go further than standard marriage in doing this sort of thing, but it's not done because it's not necessary and it's against the mores of the culture. Basically such arrangements are the polar opposite of pre-nuptial agreements. The downside for a homosexual couple is a requirement, due to cultural prejudice and not the fault of law, to prove their contractual entwinement a lot more often than a heterosexual couple would have to prove their marriage.
So these two points would seem to be enough to dispose of an outright need for homosexual marriage, since for these intents and purposes, a half-assed kind of homosexual marriage exists already. However there is a complicating factor: external contractual and statutory rights. For example, some places (and I'm not familiar with New Jersey's laws on the subject) extend a spouse immunity from giving legal testimony against their partner. [Which isn't much of a 'right', since a lover or relative under compulsion is the second most hostile possible witness for the prosecution (the only more hostile is a co-conspirator in a crime).] Spousal benefits for insurances etc are subject to the terms of that contract, and while insurance contracts that pay only to a legally married spouse upon the death or permanent severe mental impairment of the insured are nowadays rare, they do exist.
Personally I favor a minimal solution, a 'Marital Declaration Act', which gives people aged 21 or older the right to declare themselves to be each others' spouses, and to be treated for all purposes of contract law and statutory privileges as each others' spouses. This arrangement must be mutual and voluntary and can be repudiated by either spouse at any time prior to the commencement of any relevant legal proceedings.
While we're at it, let's fix up polygamy law. I see no moral impediment for consenting adults to marry multiple partners at once, and the 'Marital Declaration Act' could divide rights and duties equally between the spouses of a given person, where these duties are divisible, and give a judge the right to divide them where they are not.
This might lead to people getting married for purposes other than love. Ironically that is by far the most traditional form of marriage.
Ash.
posted by aeschenkarnos at 6:36 PM on June 27, 2002
[While we're at it, let's fix up polygamy law. I see no moral impediment for consenting adults to marry multiple partners at once]
Agreed as well. I've nothing against homesexual marriage - But I'll have to agree with MattD as to it's proper place being in the legislature - not the courts.
posted by revbrian at 7:16 AM on June 28, 2002
Agreed as well. I've nothing against homesexual marriage - But I'll have to agree with MattD as to it's proper place being in the legislature - not the courts.
posted by revbrian at 7:16 AM on June 28, 2002
if this is about a law that forbids same-sex marriage, isn't it the court's place to decide the issue? that's what judicial review is all about, right?
posted by tolkhan at 8:20 AM on June 28, 2002
posted by tolkhan at 8:20 AM on June 28, 2002
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posted by Tin Man at 10:42 AM on June 27, 2002