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Vermont legalizes same sex marriage
April 7, 2009 9:18 AM   Subscribe

Today, the Vermont Legislature voted to override Gov. Jim Douglas' veto of a bill allowing same sex marriage, making Vermont the 4th state in the nation (and the second state this week) to legalize same sex marriage. Vermont is the first state to do it legislatively; it happened in the other three states via court ruling.
posted by booksherpa (252 comments total) 6 users marked this as a favorite

 
MA, CT, IA, VT...so if California overturns Prop 8, should we expect Montana next?
posted by kittyprecious at 9:19 AM on April 7, 2009 [2 favorites]


Hurrah Vermont! Bonus points for doing it legislatively!
posted by From Bklyn at 9:20 AM on April 7, 2009 [10 favorites]


Congratulations to all the citizens of Vermont! One more blow struck against bigotry and hate.
posted by Blazecock Pileon at 9:21 AM on April 7, 2009 [3 favorites]


Score!
posted by Faint of Butt at 9:21 AM on April 7, 2009


Woo Hoo! Ok, come on California!
posted by The Light Fantastic at 9:21 AM on April 7, 2009 [1 favorite]


So Vermont and Iowa seek to re-vitalize flagging rural areas by attracting hordes of same-sex couples to their picturesque farmland?

Could work, but it will lead to weird stereotypes in the future. Like "He's as gay as a beekeeper!" "Those girls are so into each other they should just start an orchard already." "Oh you know Karl, he plows his own field." ect ect.
posted by The Whelk at 9:22 AM on April 7, 2009 [74 favorites]


Yay, yay, yay!!!!

As much as I love our activist judges, this is just the awesomest. Sweet victory! History continues her march.
posted by alms at 9:23 AM on April 7, 2009


8% of the country now recognizes 100% of the population. Looking forward to the day when 100% of the country celebrates its super-queer 8%!
posted by hermitosis at 9:23 AM on April 7, 2009 [13 favorites]


I demand that any such bill be named the "What The Fuck California Bill"
posted by qvantamon at 9:24 AM on April 7, 2009 [24 favorites]


THE WILL OF THE PEOPLE!!!
posted by AwkwardPause at 9:25 AM on April 7, 2009


Clearly the only thing worse than activist judges is activist legislatures that don't follow the will of the people. Such fundamentally important societal issues should be determined by a direct vote of the people, like when we all got together and voted to not allow women to own property in their own names and to make sure that the negros stayed in their own schools, lunch counters and bathrooms.
posted by yhbc at 9:25 AM on April 7, 2009 [6 favorites]


W00t! Go Vermont! And now Gov. Douglas officially goes down on the wrong side of history.
posted by Navelgazer at 9:26 AM on April 7, 2009 [1 favorite]


Good on them.
posted by boo_radley at 9:27 AM on April 7, 2009


Let's see, shall we drive to Burlington or Stowe to get our next marriage license?
posted by blucevalo at 9:28 AM on April 7, 2009


Bonus points for doing it legislatively!

Finally my suggestive "Vermonters Do It Legislatively" t-shirt actually makes sense.
posted by burnmp3s at 9:28 AM on April 7, 2009 [40 favorites]


As happy as this always makes me, it's still infuriating that such a thing is even up for a vote, isn't it?
posted by uncleozzy at 9:29 AM on April 7, 2009


Damn activist... uh... representatives of the people!
posted by Saxon Kane at 9:30 AM on April 7, 2009 [2 favorites]


Good job, Vermont! (note: NH trying to do the same!)
posted by Greg Nog at 9:31 AM on April 7, 2009


That this was done legislatively is great. It affords legitimacy to the process, provides a strong basis for the rule, and reinforces the appropriate distribution of power in this country as an example of what can be accomplished in our "laboratories of democracy" in each state. Good for Vermont; it's the model to be followed on this point.
posted by dios at 9:31 AM on April 7, 2009 [7 favorites]


Tonight, I will raise a pint of Ben and Jerry's up in celebration!

Ok, I was probably going to anyways, but it will be especially tasty after this.
posted by formless at 9:33 AM on April 7, 2009 [3 favorites]


Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State
-Article IV, Section 1, US Constitution

So why are these marriages not recognized in all 50 states (yet)?

...it's still infuriating that such a thing is even up for a vote, isn't it?
Maybe, but our society has come a long way from the 1960's and 1970's, when simply being gay was enough to get people arrested.
posted by TedW at 9:38 AM on April 7, 2009 [3 favorites]


Debby Downer here, can't wait to see all the statistics cooked up tracking the "failings" of same-sex marriage. It should be hilarious. They'll be blamed for absolutely every ill once legalized in a majority of states.
posted by karmiolz at 9:39 AM on April 7, 2009


8% of the country now recognizes 100% of the population.

What about the polyamorists?
posted by Krrrlson at 9:41 AM on April 7, 2009 [7 favorites]


So why are these marriages not recognized in all 50 states (yet)?

Defense of Marriage Act.

posted by dios at 9:41 AM on April 7, 2009


I hope that courts (and same-sex marriage advocates) in other states see this as an example of the fact that this need not be done by judicial action but can and should be done legislatively so as to avoid the foreseeable constitutional problems that will likely arise if same-sex marriage comes into being by way of a newly-created right that competes with other long-standing rights (specifically, the free exercise and establishment clauses of the First Amendment).
posted by The World Famous at 9:41 AM on April 7, 2009


MA, CT, VT.... Is it just me or are things getting a little stuffy around here in NY. I am feeling a bit claustrophobic. What is that darling? No, of course I can't wait to get married. Can someone get me a glass of water?
posted by munchingzombie at 9:41 AM on April 7, 2009 [2 favorites]


One more blow struck against bigotry and hate.

Yep. Someone please tell Michael Savage to shut up already:
"So there are the vermin now celebrating twisted perverse marriage in the middle of America. It's a victory for perversion in my opinion. You want me to tell you what makes me sick? When I see two puffy white males kissing each other, I wanna puke. When I see two women kissing each other, on the lips, as lovers, I wanna vomit. Why? It's unnatural. It's against all of the laws of mankind. It's against all the laws of humankind. It is suicide for a society to embrace such behavior."
posted by ericb at 9:41 AM on April 7, 2009


.

No, wait, I meant

!
posted by mudpuppie at 9:41 AM on April 7, 2009 [2 favorites]


Debby Downer here, can't wait to see all the statistics cooked up tracking the "failings" of same-sex marriage. It should be hilarious. They'll be blamed for absolutely every ill once legalized in a majority of states.

At least it will lead to widespread recognition of global warming.
posted by Krrrlson at 9:42 AM on April 7, 2009 [1 favorite]


"When I see two women kissing each other, on the lips, as lovers, I wanna vomit."

This is not a statement that any straight man would ever make.
posted by Faint of Butt at 9:44 AM on April 7, 2009 [30 favorites]


4 down, 46 to go. *taps foot impatiently*
posted by Quietgal at 9:45 AM on April 7, 2009 [1 favorite]


Debby Downer here, can't wait to see all the statistics cooked up tracking the "failings" of same-sex marriage.

At least here in Massachusetts the sky hasn't fallen since same-sex marriage was legalized in 2004.
"On May 17, 2004, when Massachusetts began marrying its gay couples, that simple declaration — emblazoned on golden stickers shaped like deputy sheriff's badges and proudly worn by ecstatic gay-rights supporters — celebrated a seismic shift. State-approved gay marriage was no longer a theoretical possibility. It was a reality.

Now, a year and more than 6,100 gay weddings later, the reviews are in. Folks in Massachusetts, the first in the nation to experience this expansion of freedom, have swung 180 degrees to favoring it.

Bay State voters now overwhelmingly support gay marriage, 56% to 37%, according to a Boston Globe poll in March. That's a breathtaking turnabout from February 2004. Back then, after the Massachusetts Supreme Judicial Court ruled that gays had to be allowed to marry but before the marriages began, voters opposed the change, 53% to 35%.

...While the outside world debates how to treat its gay couples, Massachusetts sees that fire-and-brimstone predictions didn't come true.

Religious institutions haven't been forced to bless the civil marriage of any gay couple, though many have done so voluntarily. Nor did supporting the court's order to extend all the state-conferred rights and responsibilities of marriage trigger a ballot-box backlash against gay-friendly lawmakers.

Having lived with gay marriage, Massachusetts seems a bit smitten with it. By 65% to 34%, voters say it hasn't weakened the institution of marriage. Only 13% say gay marriage has had a negative effect on married heterosexuals. And 71% expect the state to 'become more and more accepting of same-sex marriage,' Decision Research found in surveying 600 registered voters for MassEquality, a pro-gay marriage group."
posted by ericb at 9:45 AM on April 7, 2009 [5 favorites]


Good job Vermont!
posted by Flunkie at 9:47 AM on April 7, 2009


Vermont is the first state to do it legislatively
The California legislature approved gay marriage in September 2005 but couldn't override Governor Arnold Schwarzenegger's veto.

posted by kirkaracha at 9:48 AM on April 7, 2009 [2 favorites]


Can we stop right now with the meme that just because a court has the audacity to actually enforce a state constitution's equal protection clause it is somehow less just, less democratic or less legitimate than if a legislature passes a law accomplishing the same thing? The judiciary is a separate and equal branch of government, entrusted to enforce the constitution and protect the rights of citizens against the "more democratic" legislative and executive branches.

What happened in MA, CT and IA is no less legitimate than when happened today in VT. To think otherwise just buys into the conservative framing of the judiciary as "activist black-robed tyrants."
posted by thewittyname at 9:48 AM on April 7, 2009 [32 favorites]


Someone please tell Michael Savage to shut up already

I have a "Celebrate Diversity" rainbow sticker on my car, and I came out from food shopping one day to find that someone had left a sticky note saying "Diveristy is Perversity! - Michael Savage" (complete with misspelling) on my car window. I laughed heartily at the ignorance, and promptly bought 3 more marriage rights stickers. At church.

The sad part is that there are people who actually take this guy seriously.
posted by booksherpa at 9:48 AM on April 7, 2009 [2 favorites]


It was a close vote in the House (100-49 w/ 2/3 majority needed), so whew! Yay Vermont!
posted by lunit at 9:49 AM on April 7, 2009


Maple syrup and gay marriage, two great flavors together at last!

Seriously, w00t!
posted by ooga_booga at 9:49 AM on April 7, 2009 [1 favorite]


Yay!
posted by rtha at 9:52 AM on April 7, 2009


"So there are the vermin now celebrating twisted perverse marriage in the middle of America. It's a victory for perversion in my opinion. You want me to tell you what makes me sick? When I see two puffy white males kissing each other, I wanna puke."

Everyone knows Michael Savage had a total crush on Beat poet and noted fag Allen Ginsberg. Conservatives are a joke at this point, especially the closeted ones.
posted by Blazecock Pileon at 9:53 AM on April 7, 2009 [4 favorites]


When dams break, the process tends to accelerate.
posted by fourcheesemac at 9:53 AM on April 7, 2009


I'm so gay for Vermont right now.
posted by billysumday at 9:53 AM on April 7, 2009 [4 favorites]


thewittyname: I don't think anyone here is claiming that the judicial decisions out of MA, CT or IA were in any way illegitimate, but rather that having 100 State Representatives stand up to the Governor and say that This Is The Will Of The People is just gravy.
posted by Navelgazer at 9:54 AM on April 7, 2009 [5 favorites]


So why are these marriages not recognized in all 50 states (yet)?

We'll need another Loving v. Virginia to recognize the civil rights of gays and lesbians, married or otherwise. Dismantling the machinery of bigotry takes time. We'll get there.
posted by Blazecock Pileon at 9:55 AM on April 7, 2009 [1 favorite]


That this was done legislatively is great. It affords legitimacy to the process, provides a strong basis for the rule, and reinforces the appropriate distribution of power in this country as an example of what can be accomplished in our "laboratories of democracy" in each state. Good for Vermont; it's the model to be followed on this point.
posted by dios at 9:31 AM on April 7


yeah loving v. virginia was bullshit; we should have just waited for alabama, arkansas, delaware, florida, georgia, kentucky, louisiana, mississippi, missouri, north carolina, oklahoma, south carolina, tennessee, texas, virginia, and west virginia to come around and repeal their laws criminalizing interracial marriage

that way, by 2030 or 2040 all heterosexual americans would have marriage equality without those pesky activist judges getting involved
posted by Optimus Chyme at 9:55 AM on April 7, 2009 [7 favorites]


4 down, 46 to go. *taps foot impatiently*

Have you ever been to the South?

I would learn some foot-tapping patience, otherwise you're going to get a charley horse
waiting.

That being said, way to go Vermont.
posted by gcbv at 9:56 AM on April 7, 2009


Woohoo! Go, Vermont!

Huh:
And 71% expect the state to 'become more and more accepting of same-sex marriage,' Decision Research found in surveying 600 registered voters for MassEquality, a pro-gay marriage group."

Ah, but how many NARAL members think reproductive choice rights will be strengthened in the next decade? These important surveys must be done!
posted by gurple at 9:57 AM on April 7, 2009


This is the weirdest thing, it's a feeling I haven't had in such a long time, I almost had forgotten that it existed.

I'm feeling sort of... proud... of the direction my country is going.
posted by quin at 9:57 AM on April 7, 2009 [2 favorites]


"When I see two women kissing each other, on the lips, as lovers, I wanna vomit."

This is not a statement that any straight man would ever make.


Interesting point. Maybe if we started by generating popular support for legalizing "girl-on-girl marriage" first, we could slip gay male marriage in through the back door later.
posted by snofoam at 9:58 AM on April 7, 2009 [8 favorites]


Good.
posted by ob at 9:59 AM on April 7, 2009


I found this statement from Iowa Senate Majority Leader Mike Gronstal very good news as well..
posted by DreamerFi at 9:59 AM on April 7, 2009 [6 favorites]


A good friend of mine is a reporter for a direct-marketing trade paper; I've been trying for the past few days to find a humor column he once wrote in which he made the tongue-in-cheek argument that the increased business for the wedding industry alone is enough of a justification to legalize gay marriage.

Back then he was kidding around. Now I'm starting to think if maybe someone should float it as an add-on to the stimulus plan in Congress...
posted by EmpressCallipygos at 10:00 AM on April 7, 2009


we could slip gay male marriage in through the back door

I'm going to pretend you didn't say that.
posted by Faint of Butt at 10:02 AM on April 7, 2009 [10 favorites]


Damn activist... uh... representatives of the people!

The meme that judges who rule for equal protection are "activists" is absurd. Beyond that, the idea that judges are not representatives of the people is such an amazingly ignorant idea. Judges don't set themselves up with the job.

In every attempt to defend equal protection, we see opponents trot out the same old canards: If the courts uphold equal protection, the judges are activists and it needs to go the legislature. If lawmakers do the right thing, then it needs to be a referendum in front of the public.

These are all (tired) excuses not to uphold equal protection. They can't simply come out and voice their irrational hatreds without code phrases and game playing. Enough, already.
posted by Blazecock Pileon at 10:02 AM on April 7, 2009 [5 favorites]


"Someone please tell Michael Savage to shut up already:"

Better yet, how about we arrange a no-holds-barred cage match with him vs. Dan Savage? I'd put my money on Dan.
posted by caution live frogs at 10:04 AM on April 7, 2009 [4 favorites]


Blazecock: I hope you know that I was joking and agree with you 100%
posted by Saxon Kane at 10:06 AM on April 7, 2009


Gurple, I think it's saying "At the behest of MassEquality, Decision Research surveyed 600 voters", not "Decision Research surveyed 600 voters from MassEquality".
posted by Flunkie at 10:07 AM on April 7, 2009


I know you're joking, it's just that the same argument gets trotted out every time, and it is ridiculous at this point.
posted by Blazecock Pileon at 10:07 AM on April 7, 2009


...the increased business for the wedding industry alone is enough of a justification to legalize gay marriage.

Despite laws, gay wedding industry booming.

Before Prop 8: Gay marriage a gift to California’s economy. || State sees economic windfall in gay weddings.
posted by ericb at 10:07 AM on April 7, 2009


Can we stop right now with the meme that just because a court has the audacity to actually enforce a state constitution's equal protection clause it is somehow less just, less democratic or less legitimate than if a legislature passes a law accomplishing the same thing?

That's not a meme. It's a principal of constitutional law. Judges are not legislators. They job is apply the law neutrally from principles that are neutrally derived, defined, and applied. Judges do not have the jurisdiction or authority to decide political questions.

It may well be that a given state's constitution prohibits the deprivation of marriage to same sex couples under that state's equal protection clause. But it is an extremely sensitive area of constitutional law to have courts opining on "rights" when there is not a clear constitutional or statutory basis for it.

Tyranny of the judiciary is no different than any other form of tyranny and can be counter-majoritarian and anti-democratic. It is a very real threat to the prinicples of this country.

For that reason, there is more authority and stronger basis for a rule when it is passed by the legislature.

What happened in MA, CT and IA is no less legitimate than when happened today in VT.

It is if the MA, CT and IA decisions were wrongly decided. The benefit here is that we do not need to question the judicial soundness of a decision or worry whether a policy question was decided by a countermajoritarian tyranny of the judiciary. We have a law that was created by entity entrusted to create laws.

And that's the point. Any time you have a court reversing legislative enactments, the question of the propriety or legitimacy of the ruling can be made. But when the legislature passes the law, that question no longer exists. As such, it is axiomatically more legitimate because there can be no basis to claim illegitimacy.
posted by dios at 10:10 AM on April 7, 2009 [6 favorites]


noted fag

I know it's wrong, but I want this on a business card.
posted by The Whelk at 10:12 AM on April 7, 2009 [9 favorites]


Ah, those activists judges!

Those Activist (Republican-Appointed) Judges
"Massachusetts (Goodridge, 2003) Margaret Marshall, appointed by Chief Justice Gov. Weld (R) in 1996, elevated to Chief by Gov. Cellucci (R);

in 1999 California (In re Marriage Cases, 2008) Ronald George, Chief Justice appointed by Gov. Wilson (R) in 1991, elevated to Chief by Gov. Wilson (R);

in 1996 Connecticut (Kerrigan, 2008) Richard Palmer, Associate Justice appointed by Gov. Weicker (Ind.); in 1993 -- Note that Weicker was a Republican during his time in the House and Senate. He won the governorship as an independent.

And today, in Iowa (Varnum, 2009) Mark Cady, Associate Justice, appointed by Gov. Branstad (R) in 1998."
Republicans Appointed Most Judges Making Pro-Gay Decisions
"...Republican governors appointed six of the seven justices on the Massachusetts high court that recently ruled gay couples have the right to marry, and Republican presidents appointed four of the six U.S. Supreme Court justices who voted to strike down Texas's law banning gay couples from having sex. 'The claim that "activist judges" are behind these rulings for equality is nothing short of a fraud. Our Constitution requires judges to be fair-minded and independent, regardless of their political beliefs and sometimes in the face of strong political opposition.'"
California Supreme Court Says Yes To Same-Sex Marriage"The California Supreme Court ruled Thursday that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory.

The court's 4-3 ruling was unlikely to end the debate over gay matrimony in California.

...The court found marriage to be a 'fundamental constitutional right,' and that to deny that right to same-sex couples would require a compelling government interest. The Republican-dominated court said the state had failed to show such an interest.

...The chief justice was joined by Justices Joyce Kennard and Kathryn Werdegar, all three of whom were appointed by Republican governors, and Justice Carlos Moreno, the only member of the court appointed by a Democrat." * posted by ericb at 10:14 AM on April 7, 2009 [6 favorites]


I would also note how incredibly short-sighted it is that you cede your rights of representation as a citizen to a panel of judges only because you like the way the judges decide. Because there will be a time and place where you don't like the way the judges will decide, but having ceded the authority to them to act as robed kings, you will have no redress. People rightfully were concerned about the last president's fealty to the Constitution and attempts to expand power of the executive. But presumably you do not approve of such extension merely because the guy in office changed. So it is with judges. Judges change. And if you believe that it is a panel of judge's right to decide what your rights are, you have engaged in an act of intellectual and democratic disarmament because those judges can change and reverse the prior ruling.
posted by dios at 10:17 AM on April 7, 2009 [4 favorites]


Maine is trying to do this too. Go New England!
posted by rusty at 10:19 AM on April 7, 2009


Never mind balance of powers.
posted by Blazecock Pileon at 10:22 AM on April 7, 2009


ericb, Democrat-appointed judges do not have a corner on the "activist" market. As much as Republican pundits would like to have the term "activist" be equated with "Democrat," the fact is that activists are equally represented on both sides of the political spectrum. In fact, I have heard Scalia give a lecture in which he said something to the effect of: "All judges are activists."
posted by The World Famous at 10:23 AM on April 7, 2009


Dios makes some good points about the role of the judicial branch in our democracy, but my understanding is that their job is to interpret the law and ensure that laws are constitutional. If judges are doing their job and need to overturn a law because it does not respect constitutionally guaranteed rights, they really aren't "activist" judges and that is just a term that is being used to marginalize their actions, as well as code for doggone liberal. If we could always agree on what legislation meant, we wouldn't need judges to interpret and uphold laws, but we do.
posted by snofoam at 10:23 AM on April 7, 2009 [3 favorites]


Never Mind The Blazecocks.

sorry
posted by The Whelk at 10:23 AM on April 7, 2009 [2 favorites]


Framing, people! It's all about framing. I say we keep the phrase "Same-sex marriage" out of it, and instead put forward the "Encouraging Girl-on-Girl Action Act of 2009."
posted by Tomorrowful at 10:24 AM on April 7, 2009 [2 favorites]


I take it, dios, that you are just as opposed to the US Supreme Court's striking down DC's handgun ban as you are of these states' striking down gay marriage bans.
posted by dirigibleman at 10:24 AM on April 7, 2009 [1 favorite]


That's it. I'm straight, but I'm getting gay married just to celebrate. I'm just a few hours from Iowa, and I think I can talk a group of people into gay marrying with me.
posted by Astro Zombie at 10:26 AM on April 7, 2009 [1 favorite]


Between this and Iowa (!!!), I am just overwhelmed with delight.
posted by shiu mai baby at 10:27 AM on April 7, 2009 [1 favorite]


I take it, dios, that you are just as opposed to the US Supreme Court's striking down DC's handgun ban as you are of these states' striking down gay marriage bans.

I doubt it, because dios thinks that judges should "apply the law neutrally from principles that are neutrally derived, defined, and applied...[and] not have the jurisdiction or authority to decide political questions." That sounds reasonable, but what it really means is that dios thinks judges should never issue any sort of progressive opinion, because being neutral and having an aversion to "political questions" precludes that possibility, regardless if a state constitution's provisions (such as equal protection) require such a ruling.
posted by thewittyname at 10:29 AM on April 7, 2009


Any time you have a court reversing legislative enactments, the question of the propriety or legitimacy of the ruling can be made. But when the legislature passes the law, that question no longer exists.

Not at all. Sometimes a court ruling that a law is unconstitutional (Loving v. Virginia) does not raise the question of the legitimacy of the ruling, at least in the long term. At the same time, legislative actions are not necessarily guaranteed to be legitimate, such as obviously corrupt actions by Monica Conyers, et al. in Detroit.

When a constitution specifically mentions that folks have equal rights, it is perfectly legitimate for a court to rule that laws preventing certain members of society from exercising their rights are unconstitutional. The question will be raised by opponents of such a decision whether it is judicial or legislative, regardless.
posted by explosion at 10:29 AM on April 7, 2009


I still hold out hope that we'll eventually look back on this the way we do things like, oh, say, not allowing women to vote. It's like, "What were we thinking? That was never right."

Of course, I'm still feeling so happy to be out from under the Bush regime. It's like a cloud being lifted. This case in particular, which I've been following closely, is starting to give me even more hope: http://www.huffingtonpost.com/robert-f-kennedy-jr-and-brendan-demelle/paul-minors-attorneys-fil_b_184013.html
posted by itsobb at 10:29 AM on April 7, 2009 [1 favorite]


If we could always agree on what legislation meant, we wouldn't need judges to interpret and uphold laws, but we do.
posted by snofoam at 12:23 PM on April 7


Entire forests have been torn down for the paper needed to write about the proper methods of statutory and constitutional construction. The most brilliant legal minds of the last several centuries have argued back and forth, and there is no correct answer.

But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination. There is no question of that rights existence. But when a judicial body discovers a right or affords something the protection of a right not previously identified, there are legitimate questions as to the existence of such a right and the validity of the judicial determination. Arguing about whether a judge is an "activist" is a non-starter and is simply partisan claptrap. The question is the legitimacy of individual decisions. And, again, there is no question of legitimacy when a legislature defines a right because that is the proper separation of power.
posted by dios at 10:30 AM on April 7, 2009 [2 favorites]


What will happen to the gay and lesbian civil unions that currently exist in Vermont? Will those couples have to "remarry" or register their partnership as a marriage? Is there just a conversion in legal standing that can happen without the paperwork?
posted by gladly at 10:31 AM on April 7, 2009


Metafilter : I think I can talk a group of people into gay marrying with me.
posted by mannequito at 10:32 AM on April 7, 2009


But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination. There is no question of that rights existence. But when a judicial body discovers a right or affords something the protection of a right not previously identified, there are legitimate questions as to the existence of such a right and the validity of the judicial determination.

This is, at best, a contestable political opinion, and not the sort of objective legal truth you seem to take it as.
posted by thewittyname at 10:32 AM on April 7, 2009


And, again, there is no question of legitimacy when a legislature defines a right because that is the proper separation of power.

Like the right to own slaves. dios legal firepower FTW as usual.
posted by mrt at 10:34 AM on April 7, 2009


But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination.What about when a legislature defines a lack-of-right? Is there any question of the legitimacy of that determination? If so, how do you propose the question of its legitimacy be resolved?
posted by Flunkie at 10:36 AM on April 7, 2009


Whoops, bad HTML. Sorry.
posted by Flunkie at 10:37 AM on April 7, 2009


This is awesome news.

AZ, maybe there could be a match.com style service for this. SSAZ seeks GM for marriage...
posted by pointystick at 10:38 AM on April 7, 2009


Okay, this may be a silly question, but... I'd been led to believe, at some point in some civics class in the past, that the balance of powers of the tripartite government was that, legislative branch passes the laws and can impeach the executive, executive branch must approve laws, but vetos can be overridden, judicial branch can strike down laws which disagree with the foundation documents (constitution), but have members appointed by the executive and approved by the legislative branch.

Now in this thread, I'm reading that the ONLY roll of the judicial branch is to mete out decisions based on the laws they are handed, and not to evaluate the possibility that those laws might somehow run contrary to the principles of the land?

That sounds to me like full subjugation of what is supposed to be one equal third of government to the whims of the other two branches, tying their hands to only respond within an established context and refusing to give them the control powers over the other branches which they were granted upon design.

Or was I miseducated about this?
posted by hippybear at 10:39 AM on April 7, 2009 [1 favorite]


when the legislature defines a right, there is no question of the legitimacy of that determination.

You aren't really a lawyer, are you?
posted by Your Time Machine Sucks at 10:39 AM on April 7, 2009 [2 favorites]


Hmmm. I get it. Likewise, every time a legislature restricts a right, there is no question about the illegitimacy of that determination.
posted by snofoam at 10:40 AM on April 7, 2009 [1 favorite]


This is, at best, a contestable political opinion, and not the sort of objective legal truth you seem to take it as.

It is a contestable and salient legal opinion, and there is no such thing as "legal truth" (unless it's what I happen to be arguing at the moment, since my arguments are always, by definition, the undisputable truth).
posted by The World Famous at 10:41 AM on April 7, 2009 [1 favorite]


Likewise, every time a legislature restricts a right, there is no question about the illegitimacy of that determination.

Only if that "right" was constitutionally, rather than legislatively, granted.
posted by The World Famous at 10:41 AM on April 7, 2009


woohoo!!! New England's halfway there!
posted by spinturtle at 10:42 AM on April 7, 2009


Judges do not have the jurisdiction or authority to decide political questions.

Why, hello Bush v. Gore! Fancy meeting you here!
posted by octobersurprise at 10:42 AM on April 7, 2009 [8 favorites]


I take it, dios, that you are just as opposed to the US Supreme Court's striking down DC's handgun ban as you are of these states' striking down gay marriage bans.
posted by dirigibleman at 12:24 PM on April 7

Aside from the fact that I have not said anything about being "opposed to...these states' striking gay marriage bans"--a fact which you just imagined and has no basis in anything I just said, I cannot begin to see any correlation between the two issues.

That sounds reasonable, but what it really means is that dios thinks...

Note: anytime you see someone say this, you should ignore it. Because all you are going to witness in the rest of that sentence is a strawman about to be bashed to holy hell because the individual cannot address an argument on its merits.

Sometimes a court ruling that a law is unconstitutional (Loving v. Virginia) does not raise the question of the legitimacy of the ruling, at least in the long term.

With all due respect, we have not finished "the long term." While I cannot ever fathom it happening, it is entirely possible that the opinion could be reversed. And this goes to the point of the legitimacy of court-defined rights. If a "right" only exists due to an opinion of a court, then that "right" can be destroyed by a court. The only real limitation is stare decisis, which is no required limitation at all. Federal legislation could--and has--accomplish the same thing with greater legitimacy and firm basis.

Let's make this distinction real clear by looking at the classic case: Roe v. Wade. In Roe, the Supreme Court reasoned out a right to privacy that included a right of a woman to choose abortion. Since the day it was decided, that decision has been attacked and been fodder in the policy wars. The decision has been applied in other contexts and limited in subsequent decisions. And every time we have an election or appoint a new Justice, the question comes up whether we will get a new court that will reverse Roe v. Wade.

Now if instead of having the Court create this right, we had the federal legislature pass a constitutional amendment identifying a right to privacy or a right to abortion, the question would be off the table. The only way it could be changed would be an equally democratic decision to remove the right. But that change would be caused by democractic changes, not a mere change of mind or bodies of a 9 member judicial panel.

That's the danger of allowing rights to be defined by judges.
posted by dios at 10:43 AM on April 7, 2009 [10 favorites]


gladly, I imagine they will erect a large cardboard box through which the couples must pass. One side will say "Civil Unions In" and the other "Married Out." Some lights will blink and a pinwheel may whirl about. I'm told this cutting edge technology was purchased from the Sneetches.
posted by adipocere at 10:44 AM on April 7, 2009 [3 favorites]


"When I see two women kissing each other, on the lips, as lovers, I wanna vomit."

This is not a statement that any straight man would ever make.
posted by Faint of Butt at 9:44 AM on April 7 [3 favorites +] [!]


Note also that he qualified his declaration of disgust for man-on-man love with very specific descriptors: "When I see two puffy white males kissing each other, I wanna puke."

Replace "puffy white" with "hard-bodied Asian" or "obese African-American" or "rail-thin Latino" and...who knows?
posted by Atom Eyes at 10:44 AM on April 7, 2009 [6 favorites]


But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination. There is no question of that rights existence.

That's patent nonsense. If the legislature creates a right that comes into conflict with the rights of others as specified in a bill of rights or the rights of others as held from longstanding tradition, there will most certainly be questions of that right's existence. Likewise, if a legislature creates a right that comes into conflict with any sort of higher-level law, there will be questions of that right's existence.
posted by ROU_Xenophobe at 10:45 AM on April 7, 2009 [2 favorites]


Yay, Vermont! I'm so proud of my home state today!
posted by sarcasticah at 10:45 AM on April 7, 2009


That sounds to me like full subjugation of what is supposed to be one equal third of government to the whims of the other two branches, tying their hands to only respond within an established context and refusing to give them the control powers over the other branches which they were granted upon design.

Or was I miseducated about this?
Yes, clearly you were. In reality, the only purpose of the judicial branch is to unconditionally support all laws that the legislature creates, exactly as they are written, without giving any consideration to the possibility that they might be unconstitutional.

Except, of course, when those laws involve baby killers or faggots, in which case the purpose of the judicial branch is to strike down supposed "laws" down as, obviously, unconstitutional. That's why we've got to elect a god-fearing president, instead of a secret Muslim, so we can stack the Supreme Court and overturn Roe v. Wade and whatever Vermont faggot laws like this one get made.

Anything else would be judicial activism.
posted by Flunkie at 10:47 AM on April 7, 2009


Now if instead of having the Court create this right, we had the federal legislature pass a constitutional amendment identifying a right to privacy or a right to abortion, the question would be off the table.

Erm... no, it wouldn't. The federal legislature passing a constitutional amendment wouldn't alter anything anywhere in the slightest degree.
posted by ROU_Xenophobe at 10:47 AM on April 7, 2009


Go, Vermont!
posted by Flipping_Hades_Terwilliger at 10:48 AM on April 7, 2009


That sounds to me like full subjugation of what is supposed to be one equal third of government to the whims of the other two branches, tying their hands to only respond within an established context and refusing to give them the control powers over the other branches which they were granted upon design.

The Legislature is the weakest of the branches and the most limited. They are only authorized to rule on things based on their jurisdiction. At any given time, the legislature can strip them of jurisdiction over any matter.

Like the right to own slaves. dios legal firepower FTW as usual.
posted by mrt at 12:34 PM on April 7


Which, incidentally, was a right that abolished by legislative enactment of the 13th Amendment, not judicial pronouncement.
posted by dios at 10:48 AM on April 7, 2009


Erm... no, it wouldn't. The federal legislature passing a constitutional amendment wouldn't alter anything anywhere in the slightest degree.
posted by ROU_Xenophobe at 12:47 PM on April 7


Erm, yes it would. Please flesh out your point so we can discuss issues instead of just calling each other wrong.
posted by dios at 10:49 AM on April 7, 2009


Good on you, Vermont. This whole house of cards is coming down!
posted by cazoo at 10:50 AM on April 7, 2009


dios: I am unclear on your meaning. The Legislature is authorized to rule on things based on jurisdiction?
posted by hippybear at 10:52 AM on April 7, 2009




A bit more attention might be spent on just how progressive Vermont is in relationship to just about every other state in our nation...besides: it is the home of Ben and Jerry's icecream.
posted by Postroad at 10:53 AM on April 7, 2009


That's patent nonsense. If the legislature creates a right that comes into conflict with the rights of others as specified in a bill of rights or the rights of others as held from longstanding tradition, there will most certainly be questions of that right's existence.
posted by ROU_Xenophobe at 12:45 PM on April 7


There is absolutely no constitutional basis to question the Vermont legislature granting the right to marriage to gay couples. If a judiciary says it, there can be a constitutional basis to argue against it.

Please tell me you are not going to advocate the position that courts have a great right to define substantive rights than a legislature. You're smarter than that.
posted by dios at 10:54 AM on April 7, 2009


The Legislature is the weakest of the branches and the most limited. They are only authorized to rule on things based on their jurisdiction. At any given time, the legislature can strip them of jurisdiction over any matter.

Oops. Sorry. That clearly should say "The Judiciary is the weakest..." I apologize if that mistake is not obvious from the context.
posted by dios at 10:56 AM on April 7, 2009


Erm... no, it wouldn't. The federal legislature passing a constitutional amendment wouldn't alter anything anywhere in the slightest degree.
posted by ROU_Xenophobe at 12:47 PM on April 7

Erm, yes it would. Please flesh out your point so we can discuss issues instead of just calling each other wrong.
posted by dios at 10:49 AM on April 7


Erm, I believe the point being that Constitutional Amendments must be submitted to the states for approval before they take effect.
posted by ailouros08 at 10:56 AM on April 7, 2009


Note: anytime you see someone say this, you should ignore it. Because all you are going to witness in the rest of that sentence is a strawman about to be bashed to holy hell because the individual cannot address an argument on its merits.

I would love to address the merits of your argument, dios, but I can't seem to find many. For example, as "evidence" for your contention that judicially recognized rights are somehow less legitimate than those granted by a legislature, you offer:

And this goes to the point of the legitimacy of court-defined rights. If a "right" only exists due to an opinion of a court, then that "right" can be destroyed by a court. The only real limitation is stare decisis, which is no required limitation at all. Federal legislation could--and has--accomplish the same thing with greater legitimacy and firm basis.


Did I miss something in law school, or cannot legislatures also change a law they themselves enacted? Your argument works against itself. If a "right" only exists due to a statute, then that "right" can be destroyed by a legislature.

And, if you want to argue that a majority vote of the legislature confers some greater legitimacy than a majority vote of the supreme court, then I have a few counter arguments to that:
(1) a majority vote isn't always necessary - some statutes expire on their own terms;
(2) sometimes a super-majority is required, either by law, such as California's reqiurement for a 2/3rd majority to raise taxes, or in practice, such as needing 60 votes in the US Senate. You could argue that these super-majority requirements make legislative actions less legitimate.; and
(3) you get back to the notion that the legislative and judiciary branches are equal to one another, and that a majority vote in one is no more legitimate than a majority vote in another.
posted by thewittyname at 10:57 AM on April 7, 2009


Dominoes baby, dominoes
posted by chillmost at 10:58 AM on April 7, 2009


dios, I know we've had disagreements in the past, but you do make a good point about the fragility of rights defined by judges.

That said, however, why must the topic be brought up at this time and in this context? Do you feel compelled to be a Debbie Downer? Things have just happened in Iowa and Vermont that make lots of good people very happy. We're celebrating, and you're raining on the parade. Come celebrate with us instead. It's much more fun.
posted by Faint of Butt at 10:59 AM on April 7, 2009 [2 favorites]


Erm, I believe the point being that Constitutional Amendments must be submitted to the states for approval before they take effect.
posted by ailouros08 at 12:56 PM on April 7


Grr.... is it not obvious from the discussion that I'm talking about a constitutional amendment that is ratified? Come on. Making sniping points because I don't waste the space to explain every detail about how a Bill Becomes a Law is rather unproductive to actually discussing the issues.
posted by dios at 10:59 AM on April 7, 2009


Just popping in to say I'm as thrilled as a beekeeper.
posted by DU at 10:59 AM on April 7, 2009 [1 favorite]


That said, however, why must the topic be brought up at this time and in this context? Do you feel compelled to be a Debbie Downer?

How is it a downer to point out that Vermont's legislative action is actually better than judicial action?
posted by The World Famous at 11:02 AM on April 7, 2009


dios: please, elucidate then: how is the jurisdiction issue any different from the tiered system of all the other branches of government? Surely the "stripping of jurisdiction" issue is part of the same balance of branches which was intended from the outset?

All this aside, my question did not question the jurisdiction issue. It questioned the attitude that the judicial branch does not have the responsibility of determining the constitutionality (or other legality) of legislation passed by the other two branches, but instead must only make rulings within the legal framework itself.

THAT, to me, sounds like something invented to cripple the court's constitutional duties.
posted by hippybear at 11:02 AM on April 7, 2009


But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination. There is no question of that rights existence.

Except when that right is overturned as unconstitutional. Meh, whatever, it's pointless to argue this logic.
posted by Blazecock Pileon at 11:07 AM on April 7, 2009 [1 favorite]


Just popping in to say I'm as thrilled as a beekeeper.

Well hello there DU. Do you like honey? Are you a friend of the Queen? Do you fancy flowers? Up for a little Royal Jelly? You wanna sting or get stung? Eh? Eh?
posted by The Whelk at 11:07 AM on April 7, 2009 [11 favorites]


Everyone knows Michael Savage had a total crush on Beat poet and noted fag Allen Ginsberg.

Uh, no, I didn't know that, but, if that's true, boy is that ever hilarious and does it ever make my day!
posted by blucevalo at 11:13 AM on April 7, 2009


Did I miss something in law school, or cannot legislatures also change a law they themselves enacted?....And, if you want to argue that a majority vote of the legislature confers some greater legitimacy than a majority vote of the supreme court
posted by thewittyname at 12:57 PM on April 7


You must certainly must have missed constitutional law if you think that courts can legislate such that "the majority vote of one is no more legitimate than a majority vote of another."

Our constitution vests the legislative authority with the legislature, not the Court.

It defies reason that you would rebut my point by saying "legislatures can change laws too." Of course, but as I noted above, that change is done democratically and consistent with separation of powers of the government. So two legitimate things done properly is of no moment. Having a court usurp the legislative function is inherently problematic because it is subject to reversal from a later court, and neither action is done democratically or consistent with the separation of powers of the government.
posted by dios at 11:16 AM on April 7, 2009


I apologize for being side-tracked by the people trolling Dios, but his position seems as plain as day to me, and I can't fathom why folks are disagreeing. Then again, I'm no lawyer.

The Legislative Branch creates the law, the Judiciary interprets it, and the Executive enforces it, isn't it?

So although it's awfully nice that the Iowa Court agrees with me about their interpretation of Iowa law, it's even better that the Vermont legislature has simply made a new law that states the position unequivocally. Right? Isn't that what he's saying?

As much as I support Roe v. Wade, I totally agree that it's a stop gap--the country needs to grow up and make it explicit law. And the courts can't do that.

And, on preview, he didn't even bring it up--karmiolz was the "Debbie Downer", was attacked for suggesting that Vermont was any more legit than Iowa, and was supported (quite rightly) by dios. FFS.
posted by Squid Voltaire at 11:19 AM on April 7, 2009 [3 favorites]


Judges do not have the jurisdiction or authority to decide political questions.

Interesting. Who decides which questions are "political"?

I can't believe that rights granted by the legislature are somehow less fragile than those granted by judges. In California, with our totally wacky proposition/initiative system, it's entirely possible for the state assembly (representatives! of! the! people!) to pass a law that gets overturned/eliminated by proposition in the next election cycle because a special interest group pours money and advertising into the system, lies and scaremongers about the effect of the law, and sheeplike voters dutifully overturn it.
posted by rtha at 11:19 AM on April 7, 2009 [4 favorites]


posted by Quietgal *taps foot impatiently*

Senator Larry Craig, is that you?!
posted by mattdidthat at 11:26 AM on April 7, 2009


Our constitution vests the legislative authority with the legislature, not the Court.

And what is legislative about a court saying, "sorry legislature, you cannot discriminate against a class of citizens and deny them privileges offered to other citizens" and striking down a DOMA-type law as violative of the equal protection clause? That seems well within the judicial power.
posted by thewittyname at 11:29 AM on April 7, 2009 [1 favorite]


dios: please, elucidate then: how is the jurisdiction issue any different from the tiered system of all the other branches of government? Surely the "stripping of jurisdiction" issue is part of the same balance of branches which was intended from the outset?

We are getting far afield from the subject at hand, but I'll answer your question because you asked: courts have limited jurisdiction. They can only hear issues if they fall within their juridiction, as set out in the Constitution or as defined by the Legislature Courts have long adhered to the doctrine that they do not have jurisdiction to resolve political questions. There are numerous other limitations to regarding standing, justiciability, abstention, etc.

What they can hear is limited. They do not have the ability to review every action of the opposing branches. They can only hear matters that are properly before them. And the legislature has the power to remove jurisdiction to hear a particular issue or even remove the entire court so that it does not exist anymore.

The judiciary is very weak and capable of being gutted; it always intended to be the weakest branch. It does not have the jurisdiction or power to legislate. It can only
interpret a statute or a constitutional provision. Any time the Court appears to be creating rights under the guise of interpretation, it is out on a limb. The legislature is not out on a limb: it is the legislature's job to be doing that.

So although it's awfully nice that the Iowa Court agrees with me about their interpretation of Iowa law, it's even better that the Vermont legislature has simply made a new law that states the position unequivocally. Right? Isn't that what he's saying?

Yes. That's what I'm saying. But the people arguing against me are somehow missing the point. And I suspect--but I would happily be disabused of this notion--that the objection to what I'm saying is because people do not want to discredit courts as "legislating improperly" because they like what the Court is doing in this area. And as I noted above, it is short-sighted to advocate a robust judiciary just because you agree with it in a particular instance.
posted by dios at 11:31 AM on April 7, 2009


I apologize for being side-tracked by the people trolling Dios, but his position seems as plain as day to me, and I can't fathom why folks are disagreeing.

Word.

I'm not even a US citizen, and I understand his statements on Judiciary and Legislative Branch to be correct.

Perhaps that's because the actual issue at hand, same sex marriage, is such an emotional one for most US readers of this thread, while in my country it has been a non-issue for quite a while.

Well, apart from the occasional city administrator who also happens to be a evangelical nutcase who refuses to register same sex marriages - that kind of thing usually lasts a day or two in the media until said administrator is bitch-slapped into either doing his or her job, or into moving on to another job.

Give it time, folks, and it will be a non-issue in the states as well.
posted by DreamerFi at 11:31 AM on April 7, 2009


And what is legislative about a court saying, "sorry legislature, you cannot discriminate against a class of citizens and deny them privileges offered to other citizens" and striking down a DOMA-type law as violative of the equal protection clause? That seems well within the judicial power.

The problem arises when the way that a court says that is by pretending that there already existed a provision in a state constitution or in the U.S. Constitution that prohibited the statute in question.
posted by The World Famous at 11:36 AM on April 7, 2009


So although it's awfully nice that the Iowa Court agrees with me about their interpretation of Iowa law, it's even better that the Vermont legislature has simply made a new law that states the position unequivocally. Right? Isn't that what he's saying?


I'd have no problem if dios limited himself to saying that the legislative approach was "better," but he hasn't. He thinks the actions of Vermont's legislature is somehow more "legitimate" than those taken by the supreme courts of Iowa, Massachusetts and Connecticut. I disagree, obviously for the reasons I've given above. Actions taken to strike down a law as unconstitutional by a state supreme court are no less legitimate than an legislature passing a new law.

But even then, I wouldn't really have a problem with what dios is saying, because it is a commonly held opinion. What gets to me is that he acts as if his opinion were somehow objectively true:


But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination. There is no question of that rights existence. But when a judicial body discovers a right or affords something the protection of a right not previously identified, there are legitimate questions as to the existence of such a right and the validity of the judicial determination.


And, as other have pointed out, there are, in fact, legitimate questions about the legitimacy of legislative actions. (Not to mention the fact that a legislature is an equal, not superior to, the judicial branch).
posted by thewittyname at 11:40 AM on April 7, 2009 [2 favorites]


What rtha said. When the California Supreme Court ruled, the justices believed that the issues that they were weighing cut to the heart of the definitions of due process, equal protection, and the right to marry in the California Constitution, and if those questions are not within the jurisdiction of the court, it's hard to imagine what questions are within its jurisdiction. As the majority opinion in that set of cases states, "Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions."
posted by blucevalo at 11:44 AM on April 7, 2009


So although it's awfully nice that the Iowa Court agrees with me about their interpretation of Iowa law, it's even better that the Vermont legislature has simply made a new law that states the position unequivocally.

You say "interpretation" the same way creationists say "theory". All understandings of the law are "interpretations". The judicial branch is not special in "interpreting" the law. They are special in that their interpretations are what get enforced.

The Iowa Supreme Court's position is that the Iowa Constitution is unequivocal. No new law is necessary, from a legal point of view.

From a political point of view it might be nice to stick it in there just to jab the bigots a bit or to give them a tougher hill to climb. But I wouldn't necessarily say that's more "grown up".
posted by DU at 11:45 AM on April 7, 2009 [1 favorite]


Tyranny of the judiciary is no different than any other form of tyranny and can be counter-majoritarian and anti-democratic. It is a very real threat to the prinicples of this country.

dios, I'm afraid to inform you that the Republican appointees to the Supreme Court are actually more "activist" in striking down Congressional legislation voted on by duly elected representatives of the people:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
(source)

dios, it seems like you only pipe up to complain about judicial activism when it involves "teh gay" or some other equal protection issue.
posted by jonp72 at 11:45 AM on April 7, 2009 [4 favorites]


...Michael Savage had a total crush on Beat poet and noted fag Allen Ginsberg.

'Michael Savage's Homo Hippie Past.'
posted by ericb at 11:47 AM on April 7, 2009


Thanks for the "political questions" link, dios. I'm reading my way through it, slowly (my eyes keep glazing over - it's a good thing I worked in a law office for a year and discovered that no, I did not want to go to law school and spend years and years reading legalese).

But if I read the first couple of sentences correctly, it is the court itself that determines what a political question is. Which is interesting.

When the SCOTUS handed down the Brown v Board of Education decision, it made it clear that all of the laws passed in states that said separate but equal was the way to go were in violation of the US Constitution. I'm wondering, in my law-ignorant way, what makes that decision different (if it is) from the various state courts that have said that denying marriage to gays is in violation of their respective state constitutions.

(And if you - dios - don't want to go all law-professor on me, and I wouldn't blame you if you didn't, I'd love some links to sites/articles/books that address questions like this. Either way, thank you.)
posted by rtha at 11:49 AM on April 7, 2009


You say "interpretation" the same way creationists say "theory". All understandings of the law are "interpretations". The judicial branch is not special in "interpreting" the law. They are special in that their interpretations are what get enforced.

The legislature does not interpret the law. It writes the law in the first place. The judiciary has no power to write the law, but only to interpret it or, sometimes, to strike it down as unconstitutional. When the judiciary essentially re-writes the Constitution through interpretation in order to strike down legislation, some people have a problem with that.
posted by The World Famous at 11:52 AM on April 7, 2009


The Iowa Supreme Court's position is that the Iowa Constitution is unequivocal. No new law is necessary, from a legal point of view.

Do you not see that that position is contradicted by the entire history of interpretation of the Iowa Constitution? It it is, indeed, so unequivocal, then why is it that only now have judges been able to "see" this unequivocal position?

There is a reason that John Marshall wrote that "[w]e must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs," and it was not because he thought that the Constitution is "unequivocal."
posted by The World Famous at 11:56 AM on April 7, 2009 [1 favorite]


The legislature does not interpret the law. It writes the law in the first place.

The legislature has an idea that it thinks it is encoding into law. That idea is an interpretation and may be consulted at enforcement time. But it is the judicial branches interpretation that has the force of law.
posted by DU at 11:57 AM on April 7, 2009 [1 favorite]


And that's the point. Any time you have a court reversing legislative enactments, the question of the propriety or legitimacy of the ruling can be made. But when the legislature passes the law, that question no longer exists. As such, it is axiomatically more legitimate because there can be no basis to claim illegitimacy.

Uh, Dios, I think you got that one wrong, buddy. I'm certain that you agree that a court can question whether or not a particular law was constitutional under a state or federal constitution. Its called judicial review. I'm pretty sure they taught that at your law school too. So really these are two offsetting branches. Whether or not the judiciary is the weakest of the three branches or not, I'm pretty sure, last time I checked, that I'm on safe ground when I present a constitutional argument to a panel.

Having said that, politically, it is a lot better to get this sort of stuff passed via legislative enactment.
posted by Ironmouth at 11:59 AM on April 7, 2009


DU, rather than argue philosophically about what "the law" really means, can we agree to the following: 1) The legislature legislates; 2) the judiciary adjudicates; 3) the executive executes; and 4) each "interprets" what they think the law "really is" in the course of carrying out its particular duty, with each interpretation being flawed to the extent that it is inconsistent with the manner in which the "law" plays out in real life?
posted by The World Famous at 12:02 PM on April 7, 2009


Dios. I understand what you're saying and agree that Legislative action is far preferable and more concrete/permanent than Judicial. In questions as big as this, I think it would be preferable to be clear. I wanted to know where Common Law fit into all this. It is my understanding that most of the "law" around contracts, property, assigning negligence, etc. has not been done by statute, but through the courts through common law. Since, religion aside, marriage is primarily a property/contract issue, it seems like the courts would be a perfect place to address this.

(though again, even better to legislatively spell it out).
posted by Wink Ricketts at 12:05 PM on April 7, 2009


I'm getting caught up here and will post more in a minute, but on first impression, Dios is way off base here. My entire legal career is based on Goldberg v. Kelly and Loudermill v. Cleveland Bd. of Education, two cases which defined substantive rights which were not enacted into law at the time they were passed. Maybe I shouldn't have cashed those checks.
posted by Ironmouth at 12:06 PM on April 7, 2009


Dominoes baby, dominoes

"Whether you like it or not" ...

Three cheers for Iowa and Vermont! Huzzah!
posted by mrgrimm at 12:07 PM on April 7, 2009


So why are these marriages not recognized in all 50 states (yet)?

Defense of Marriage Act.


DOMA is, IMHO, unconstitutional. The two federal district courts to review it agreed. Indeed, to rule that DOMA is constitutional would open the door to a future congress invalidating inter-racial marriage via the same type of law.
posted by Ironmouth at 12:10 PM on April 7, 2009


I think people's readings of what dios is saying are being tainted by who he is (or who he is perceived to be). Yes, it is the judiciary's job to interpret laws according to the Const and to strike down those that violate some fundamental right. I think it's magnificent that state courts are doing this in the gay marriage context.

But there are good reasons for a lefty--or anyone--to be wary of judicial power. I mean, Roberts, Alito, Scalia, and Thomas are on the Supreme Court for life. That is a lot of power in the hands of a very few (scary) men. Legislators and executives are not elected for life. This is just one reason why there is, to some people, a difference between what a judiciary does and what the other branches do.

I've also read some interesting writers (sorry, can't remember by whom and gotta run) who propose that our dependence on courts to implement certain things has made the legislature, the executive, and the populace lazy about Const rights. Pass a law and let the judges sort it out. That's not healthy. It may not be better for gay marriage to come through the legislature, or more legitimate, but it may be healthier to have citizens voluntary do something w/o having it imposed by a court. (And yes, some people could jump on my use of the word "imposed" as implying it's not legitimate. But that's not what I mean. Take Loving v. Virginia. It imposed something that a lot of people didn't want. And it was legitimate and right. And necessary. But if it had been possible for a majority of the bigots' fellow citizens to repudiate their beliefs through the legislative process, so much the better.)
posted by Mavri at 12:10 PM on April 7, 2009 [2 favorites]


When the Supreme Court strikes down a handgun ban enacted by a democratically elected city council by determining the meaning, or lack thereof, of the opening clause of the 2nd Amendment, it's a great victory for civil rights.

When the Iowa Supreme Court strikes down an anti-gay-marriage law enacted by a democratically elected state legislature by ruling that it violates the state Constitution's equal protection clause, it's "judicial tyranny", "re-writing the Constitution through interpretation".
posted by dirigibleman at 12:13 PM on April 7, 2009 [6 favorites]


Having a court usurp the legislative function is inherently problematic because it is subject to reversal from a later court, and neither action is done democratically or consistent with the separation of powers of the government

I'll take 'Judicial Decisions Dios Thinks 'Usurped the Legislative Function' for 100 Alex. . .
posted by Ironmouth at 12:14 PM on April 7, 2009


But here is one thing we do know: when the legislature defines a right, there is no question of the legitimacy of that determination. There is no question of that rights existence

Unless, of course, that right conflicts with a constitutionally defined right of someone else. Not so easy, is it.
posted by Ironmouth at 12:18 PM on April 7, 2009


Just wanted to throw in there that NY has already done what DC did.
posted by Pax at 12:18 PM on April 7, 2009


DU, rather than argue philosophically about what "the law" really means, can we agree to the following: 1) The legislature legislates; 2) the judiciary adjudicates; 3) the executive executes; and 4) each "interprets" what they think the law "really is" in the course of carrying out its particular duty, with each interpretation being flawed to the extent that it is inconsistent with the manner in which the "law" plays out in real life?

Except that the way it plays out in real life is that when a court strikes down a law, lower courts cannot enforce it.
posted by Ironmouth at 12:20 PM on April 7, 2009


Unless, of course, that right conflicts with a constitutionally defined right of someone else. Not so easy, is it.

This, of course, can also be a problem if a court recognizes a new constitutional right that conflicts with long-standing constitutional rights of someone else.
posted by The World Famous at 12:22 PM on April 7, 2009


It it is, indeed, so unequivocal, then why is it that only now have judges been able to "see" this unequivocal position?

Judges can only adjudicate or hear cases brought before them. Otherwise they would be legislating, which is not something they nor anyone else has proposed that they start doing.

In the case of gay marriage in Iowa, the State Supreme Court judges evaluated the constitutionality of the gay marriage ban because of a challenge issued by a Polk County attorney who appealed a prior overturning of the ban by a lower court, which also found the law unconstitutional.

The district court heard the case because of a suit filed by six gay and lesbian couples who were raising families and desired protections of their rights already afforded straight couples.

Ultimately, the state of Iowa found the law unconstitutional and overturned it a final time.

No judges had anything to do with starting the case for the benefit of either side. Nor did they write the legislation that banned certain marriages. So there's no legislation from the bench.

No judges "legislated" in this case. They evaluated the law as written when the challenge was issued. No judge rewrote the ban on gay marriage. It was a bad law and was overturned. That's what judges do.

So any lawyer stupid enough to keep chanting that these judges are "activists", as if they are drawing up laws from the bench, should perhaps go back to school. At the very least, it's pretty damn clear they need to do some homework.
posted by Blazecock Pileon at 12:23 PM on April 7, 2009


This, of course, can also be a problem if a court recognizes a new constitutional right that conflicts with long-standing constitutional rights of someone else.

Like what? (Not snarky, genuinely curious.)
posted by rtha at 12:27 PM on April 7, 2009


Whoops. Shouldn't have hit post. I meant to add: With the Iowa court recognizing gay marriage, how does that interfere with constitutional rights of...anybody else? Or does the conflict not apply in this case?
posted by rtha at 12:28 PM on April 7, 2009


Any time the Court appears to be creating rights under the guise of interpretation, it is out on a limb.

Hardly. My con law professor would have gutted me for writing that. Literally millions of people have already succesfully enforced rights which a court recognized as being protected by the constitution.

Look at the language folks. The words "creating rights" are designed to frame the debate in such a way as to make Dios arguments seem more reasonable. A court never, ever "creates rights." It recognizes rights already protected by the Constitution. That is the basis for every rights-based decision. The Constitution already protects it and prior courts have ruled in error in previously interpreting laws.

Nor are any of these decisions "political" in any sense of the word. Parties have attempted to enforce a right which it believes they believe they are entitled to, here two persons wishing to get married. These parties have sued, saying their personal rights to equal protection under the state constitution have been violated. They are not bringing a suit asking that a political question be answered. They are attempting to enforce specific rights.

Political question here is a red herring. I'm assuming that Dios isn't arguing that these are poltical questions. The fact that a legislature could pass a law regarding gay marriage does not make a question political.
posted by Ironmouth at 12:29 PM on April 7, 2009 [11 favorites]


This, of course, can also be a problem if a court recognizes a new constitutional right that conflicts with long-standing constitutional rights of someone else.

I guess that's what motivated Taney in Dred Scott v. Sandford.
posted by Ironmouth at 12:31 PM on April 7, 2009 [1 favorite]


But there are good reasons for a lefty--or anyone--to be wary of judicial power. I mean, Roberts, Alito, Scalia, and Thomas are on the Supreme Court for life. That is a lot of power in the hands of a very few (scary) men.

I agree, but I'm also bugged by those like dios who only see "judicial activism" when a court uphold the civil liberties of a downtrodden minority, but fails to see it when right-wing judges bend over backwards to favor corporations, even if they have to distort common law and years of constitutional interpretation to do so. The Constitution in exile school and the early 1930s Supreme Court that struck down a lot of FDR's New Deal have all done a little right-wing judicial activism as well.
posted by jonp72 at 12:32 PM on April 7, 2009


The benefit here is that we do not need to question the judicial soundness of a decision or worry whether a policy question was decided by a countermajoritarian tyranny of the judiciary.

"countermajoritarian tyranny"? Please. Over the top language like that weakens your advocacy for your position.
posted by Ironmouth at 12:35 PM on April 7, 2009 [1 favorite]


Thanks, Blazecock Pileon. I was aware of the procedural history of the case.

But to suggest (or imply) that the Iowa Supreme Court did not create a constitutional right under the Iowa Constitution that never existed before is incorrect, in my opinion. I find laughable the idea that the right to marry someone of one's same sex has always existed in Iowa, and that right was merely recognized by the court once a case was brought.

I respect the argument that the right to marry someone of one's same sex should exist pursuant to the general principles of equal protection, etc. But I do not buy the idea that such a right always has existed under the various constitutions and is only now being enforced.

I do think that anti-same-sex-marriage legislation has hastened the creation of constitutional same-sex marriage rights, because it has opened a door for courts to make that interpretation. I suspect that Prop 8 will play a prominent role in the eventual creation of a right to same sex marriage under the U.S. Constitution, as will the DOMA (as Ironmouth discusses above).

I guess that's what motivated Taney in Dred Scott v. Sandford.

Perhaps. But you're not implying guilt by association to the entire argument against creation of one contitutional right that violates another, are you?
posted by The World Famous at 12:36 PM on April 7, 2009


With the Iowa court recognizing gay marriage, how does that interfere with constitutional rights of...anybody else? Or does the conflict not apply in this case?

Don't you realize? The State of Iowa only gives out a limited number of marriage licenses per year! The heterosexuals will be shut out by teh gay coming to Iowa, the "Mecca" of gay marriages.
posted by Ironmouth at 12:37 PM on April 7, 2009


But I do not buy the idea that such a right always has existed under the various constitutions and is only now being enforced.

If no such right existed, there would be no need for recent bans on certain marriages. Bans were enacted specifically as a proactive attack on equal protection rights that existed prior to the enactment of said bans.
posted by Blazecock Pileon at 12:40 PM on April 7, 2009


If no such right existed, there would be no need for recent bans on certain marriages. Bans were enacted specifically as a proactive attack on equal protection rights that existed prior to the enactment of said bans.

My impression was that the bans were passed out of fear that courts would begin creating such rights. But you apparently have some insight into the motivations of the legislative history that I am not aware of. Care to share?
posted by The World Famous at 12:42 PM on April 7, 2009


My impression was that the bans were passed out of fear that courts would begin creating such rights.

As far as I know, at least with respect to matters related to same-sex marriage, courts do not create rights. They interpret them. The interpretation may be controversial, and that is certainly open to opinion, but to suggest they are legislating is objectively wrong, and IMHO career lawyers who believe this should hand in their license to practice.
posted by Blazecock Pileon at 12:49 PM on April 7, 2009


I find laughable the idea that the right to marry someone of one's same sex has always existed in Iowa, and that right was merely recognized by the court once a case was brought.

But we're talking about a society of humans, not a Platonic society where rights are granted from on high. Practically speaking, a right only "exists" if there's a legal structure willing to enforce it. Until now, there was no structure willing to enforce it, so the right effectively didn't exist. Did a same-sex couple have the right to get married in Iowa 50 years ago? If so, nobody was willing to enforce that right. But that doesn't mean the right didn't exist.
posted by Tin Man at 12:50 PM on April 7, 2009


But to suggest (or imply) that the Iowa Supreme Court did not create a constitutional right under the Iowa Constitution that never existed before is incorrect, in my opinion. I find laughable the idea that the right to marry someone of one's same sex has always existed in Iowa, and that right was merely recognized by the court once a case was brought.

I respect the argument that the right to marry someone of one's same sex should exist pursuant to the general principles of equal protection, etc. But I do not buy the idea that such a right always has existed under the various constitutions and is only now being enforced.

I do think that anti-same-sex-marriage legislation has hastened the creation of constitutional same-sex marriage rights, because it has opened a door for courts to make that interpretation. I suspect that Prop 8 will play a prominent role in the eventual creation of a right to same sex marriage under the U.S. Constitution, as will the DOMA (as Ironmouth discusses above).


But that can be the only basis for the decision in the first place. A court never "creates rights." Such loaded langague ignores the basis for all of these decisions. Let's look at Loving v. Virginia, shall we:

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.

The Fourteenth Amendment existed long before the 1955 Virginia law outlawing interracial marriage. It did not change its language. The court based its decision on the Fourteenth Amendment. It did not find that a new right existed that before did not. It found that the law was in opposition to a Constitutional Amendment passed some 90 years before. Nothing new was added. Since nothing in the 14th Amendment had changed, the only way it could find that the law was invalidated was if the right had always been protected and that Pace v. Alabamawas wrongly decided.

Now, let's look at the case at bar--The current version of the Iowa Constitution was passed in 1857. The only way that the Iowa Supreme Court could find that prohibiting gay marriage was unconstitutional is to find that the right had always existed and that any prior decision or law had wrongly interpreted.

Really, this is basic Con Law.
posted by Ironmouth at 12:50 PM on April 7, 2009 [1 favorite]


I think that saying the courts are "creating such rights" is certainly arguable, since the Iowa Supreme court itself said
In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court.
This doesn't read to me like "creating" a right (to get gay married). It reads to me like "Law banning gay marriage violates our constitution." I don't think that Brown v Board, for instance, "created" a right for black and white kids to be able to go to school together; it said that laws allowing for separate but equal (and previous court decisions that upheld such laws) were incorrect according to the Constitution.
posted by rtha at 12:52 PM on April 7, 2009


My impression was that the bans were passed out of fear that courts would begin creating such rights.

Again, courts cannot and have not ever "created rights." This is loaded, right-wing language designed to support the "activist judiciary" theories of the Federalist Society. Courts find that a Constitution's language has always protected such rights but that prior decisions were wrongly decided. This is so basic. How could a court "create rights?" It cannot. It can find that such rights have always existed.
posted by Ironmouth at 12:53 PM on April 7, 2009 [2 favorites]


They interpret them. The interpretation may be controversial, and that is certainly open to opinion, but to suggest they are legislating is objectively wrong, and IMHO career lawyers who believe this should hand in their license to practice.

Too far, too far.
posted by Ironmouth at 12:58 PM on April 7, 2009


You know, statements like "really, this is basic Con Law" and "career lawyers who believe this should hand in their license to practice" (I realize, Ironmouth, that you are not the onw who wrote that one) are really annoyingly jerky and don't really contribute to the discussion in any productive way. The fact that you and others on this site interpret your understanding of Constitutional Law one way does not mean that opinions divergent from your own imply a lack of understanding of Constitutional jurisprudence or unfitness to practice law.
posted by The World Famous at 1:06 PM on April 7, 2009


This is so basic. How could a court "create rights?" It cannot. It can find that such rights have always existed.

Well, for example, assuming the existence of inalienable rights, some of which are not yet recognized, a court could misakenly find that a right has always existed, when that right actually did not exist. If a court finds that a right has always existed, but the court is wrong, and that right has not actually always existed, then the court has created a right. Unless you attribute universal infallibility to the courts and assume that they are never wrong when they find that a right has always existed.
posted by The World Famous at 1:09 PM on April 7, 2009


The fact that you and others on this site interpret your understanding of Constitutional Law one way does not mean that opinions divergent from your own imply a lack of understanding of Constitutional jurisprudence or unfitness to practice law.

I think I backed up my statement with a lot of legal analysis. And it is basic con law. It is exactly what I was taught. Did they actually teach you that courts were "creating" rights in con law? Because that is not the logic of these decisions. It is my understanding that you practice law. If I am mistaken, I am sorry.

It is the only legally logical way to understand these decisions. If these rights are reversed, it is because a later court felt that the earlier court wrongly decided the prior case. The "creating rights" language has nothing to do with the actual jurisprudence of these cases. The only exception is where I think the Court has been consistently wrong which is the whole "evolving standards" crap they have used to justify the hodge-podge of death penalty decisions.

Seriously, is it your position that Loving v. Virginia was wrongly decided on a constitutional basis? That Pace v. Alabama was correct from a legal standpoint and that Lovingwas wrong?
posted by Ironmouth at 1:16 PM on April 7, 2009


"I respect the argument that the right to marry someone of one's same sex should exist pursuant to the general principles of equal protection, etc. But I do not buy the idea that such a right always has existed under the various constitutions and is only now being enforced."

Why not, exactly?

This is an interesting conversation for me, not least because I'm not a lawyer. Instead, I'm a layman who comes at this from a mangled Liberal perspective—that the Constitution does not provide rights, and should not. The Constitution limits powers and prescribes processes.

Now, I'll grant that this is a different perspective than some of the underlying roots of constitutional law and theory—for instance, natural rights seem logically specious to me.

But from this, as opposed to a common law theory, I see no reason why the right to marriage isn't shared by all, but only recently defended for gays and lesbians. And given that the countervailing harm of protecting this right is small, and the benefits both ideal and practical are strong, then the answer is that whether through judicial recognition or legislative addition, our move to protect this right is the correct one.

I believe, and I believe that both history and happiness agree, that we should endeavor to protect as many rights as is possible, and we should always look to enjoy our prosperity by endeavoring to expand the sphere in which man's rights are recognized and defended.

From this perspective, it is not that there is a new right—there are never new rights—but rather this is a further limiting of the state's ability to encroach upon the rights we all, by virtue of humanity, enjoy. It is not that gays now have a right to marry, it is that the state no longer retains the power to tell them they can't. That power has been found to contradict other, more fundamental rights that we have already acknowledged deserve our protection.

Therefore, the only thing that, to me, differentiates the legislative versus judicial approaches is their relative popularity, but noting the Federalist fears of factions and majoritarianism, I don't find popularity to be a de facto good in any sense beyond practicality. This is reinforced by the fact that many popular initiatives have banned gay marriage in state constitutions.

As for the argument that people only celebrate the decisions that they agree with, and that empowering the judiciary can lead to its tyranny, I find that portrays my position as overly facile: I don't simply like these decisions because I like them. I agree with these decisions because they reflect a fidelity to a deeper ideology, that the protections of the freedom of man are good to expand. While I could clutter that with all sorts of caveats and practical issues regarding the relative weights of freedoms, there it stands.
posted by klangklangston at 1:29 PM on April 7, 2009 [2 favorites]


Did they actually teach you that courts were "creating" rights in con law?

The idea that a court has "created" a right carries the implication that the person using that term believes that that right did not exist in the first place. They actually taught me that the courts are fallible and that their opinions are not always correct. If a court held that Ironmouth has the constitutional right to punch The World Famous in the face every time they meet, that court would be creating a right, no matter how adamantly its written opinion stated that it was merely recognizing a universal right that has always existed under the Constitution.

It is exactly what I was taught.

Can I disagree with your Con Law professor and not be automatically wrong, or is your Con Law class the undisputable ipse dixit of legal argument?

It is the only legally logical way to understand these decisions.

I think it is very dangerous to start thinking that one's own opinion is the only one that can possibly be logical.

Seriously, is it your position that Loving v. Virginia was wrongly decided on a constitutional basis?

Not at all.

If these rights are reversed, it is because a later court felt that the earlier court wrongly decided the prior case.

Yes. This. Exactly. If a court wrongly decides a case where it holds for the first time that a right exists, then it is not incorrect to refer to that incorrect case as having "created" a right, notwithstanding the fact that the term "create" with respect to rights is often politically loaded. Now, can we stop arguing about the word "create," with the agreement that sometimes courts make mistakes, and that reasonable people can disagree about the mistakes?
posted by The World Famous at 1:32 PM on April 7, 2009


I think the whole discussion about "creating rights" is academic and doesn't really get us anywhere. What matters is the effective result: when a court finds that there is a right, then that right must be enforced, whether the court plucked it out of thin air or based its decision on rock-solid reasoning, whether we think the decision is ridiculous or makes perfect sense. There's no way to force a court to decide a case one way or another.

If a court finds that a right has always existed, but the court is wrong, and that right has not actually always existed, then the court has created a right

Okay, who decides whether the court is wrong? That's sort of the whole problem, isn't it.
posted by Tin Man at 1:32 PM on April 7, 2009 [1 favorite]


posted by klangklangston the Constitution does not provide rights, and should not.

Say what?
posted by mattdidthat at 1:33 PM on April 7, 2009


Now, can we stop arguing about the word "create," with the agreement that sometimes courts make mistakes, and that reasonable people can disagree about the mistakes?

Or what The World Famous said.
posted by Tin Man at 1:34 PM on April 7, 2009


Okay, who decides whether the court is wrong? That's sort of the whole problem, isn't it.

Exactly. In California, the initiative process decided that the court was wrong. Arguably, the initiative process is even more wrong than the court ever was, given the obscene amounts of money and political capital that were poured into the state, mostly by out-of-state financial sources, I might add, in order to legally codify the assertion that the court was wrong.
posted by blucevalo at 1:36 PM on April 7, 2009


Say what?

mattdidthat, klangklangston wrote: the Constitution does not provide rights, and should not. The Constitution limits powers and prescribes processes.

In other words, the Bill of Rights limits the power of the government to do certain things to you.
posted by Tin Man at 1:37 PM on April 7, 2009


Mattdidthat:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

Further, the sixth amendment is the only one that I see phrased positively.

You may want to look to Federalist paper #84 for a contemporary view.
posted by klangklangston at 1:40 PM on April 7, 2009


Regis, I'd like to phone a friend. Can we get Thomas Jefferson on the line please?
posted by greekphilosophy at 1:41 PM on April 7, 2009


Okay, who decides whether the court is wrong? That's sort of the whole problem, isn't it.

We do. All of us. (Well, those of us who are US citizens, anyway.) We can say "um, no, we think the Court has fucked up, and we will indicate this by amending the Constitution to say 'Actually, flag-burning is NOT protected by the First Amendment' or 'Gays are icky' or whatever it is we think the Court got wrong. Courts are essentially powerless against a constitutional change. Sometimes that's hard to do - the US Constitution is a bitch and a half to amend - and sometimes it's easy, as witnessed recently in California. But we absolutely can come together and say "You, judicial system, have Fucked Up and we are going to force what we want."
posted by Tomorrowful at 1:42 PM on April 7, 2009


California's constitution is WAY TOO EASY to amend. That's part of why our budget is so fucked—constitutional mandates for all sorts of trendy funding bullshit.
posted by klangklangston at 1:46 PM on April 7, 2009 [1 favorite]


My understanding of the state court decisions that have said that gay marriage is legal is not that they "discovered" that it was okay for gay people to get married, nor did they "create" the right for gays to get married.

They looked at their state constitutions and said (approximately): There exists in our Constitution the right for all people to be treated equally under the law. Allowing one kind of people to get married and not others, barring compelling state interest - which doesn't seem to exist - we find it unconstitutional that gay people can't get married.

I'm still hoping that someone can explain to me how Brown v Board is or is not the creation of a right, and how it differs, or not, from these various gay marriage cases.
posted by rtha at 1:50 PM on April 7, 2009


I'm still hoping that someone can explain to me how Brown v Board is or is not the creation of a right, and how it differs, or not, from these various gay marriage cases.

It doesn't differ. In fact, plenty of people thought that Brown v. Board was wrong. Hence, massive resistance.
posted by Tin Man at 1:53 PM on April 7, 2009


I see now that I did more than my fair share to derail this thread, so I want to add a hearty FUCK YEAH, VERMONT!!
posted by thewittyname at 2:02 PM on April 7, 2009


Er... yay, Vermont!

Metafilter: It's against all of the laws of mankind.

... summon Bevets?
posted by tzikeh at 2:12 PM on April 7, 2009


Yes. This. Exactly. If a court wrongly decides a case where it holds for the first time that a right exists, then it is not incorrect to refer to that incorrect case as having "created" a right, notwithstanding the fact that the term "create" with respect to rights is often politically loaded. Now, can we stop arguing about the word "create," with the agreement that sometimes courts make mistakes, and that reasonable people can disagree about the mistakes?

A court that wrongly decides a case does not "create" a right. Instead, that court improperly decided a case by recognizing a right that is not guaranteed by the constitution upon which the court made its decision.

However, the current state of the law cannot be said to be a mistake until it is overruled. In essence, the court must find it prior error for there to be an error. You can, of course argue a case is wrongly decided. But a lower court cannot so rule properly. (although they sometimes make the case, I suppose). However, the highest court in a situation can overrule itself, in effect making error. But there is no legal error until the case is overturned.

Although some would like to think these distinctions academic, there are no academic distinctions in the law. The law is all academic distinctions and if you don't get the legal basis for courts recognizing rights in constitutions, then it is hard to argue with you. Because no court has ever stated that it was "creating" a right where none existed in the constitution it was interpreting.

As for Loving if you beleive it is wrong for courts to recognize rights, not previously acknowledged, I do not see how you can argue that Loving could be rightly decided.
posted by Ironmouth at 2:13 PM on April 7, 2009 [1 favorite]


The issue of "Created Rights" is strongly tied to the idea of "Implicit Rights"- rights that are not explicitly enumerated in the constitution, but are still found to exist under the law.

Whether you think these are rights that are "Created" by judicial fiat or "Implicit" in the constitution seems to be based on whether you agree with them... but important rights such as Privacy (Griswold v. Connecticut), the presumption of innocence, the right to travel, and the right to vote are not explicitly guaranteed anywhere in there.
posted by jenkinsEar at 2:18 PM on April 7, 2009


The beauty of our system is that as times change, all three branches can adapt. I reject the idea that the Supreme Courts of Iowa, Connecticut, and Massachusetts created a new right. Rather, their rulings reflect the new social understanding that an existing right needs to be applied in this situation.

Fifty years ago, the dominant theories of homosexuality either involved medical pathology or moral deviance. Neither theory would at the time have to seemed to fit into an equal protection argument.

But the dominant theory today involves an inborn condition that is simply part of natural human variation. Yes, there are still plenty of folks on the "homosexuality is a choice" bandwagon, but the center of gravity has shifted in a huge way. And with this new social view of what it means to be gay, the equal protection argument is almost a no-brainer.

So I'd interpret the judicial rulings not as "this right has always existed" or "we're creating a new right" - but as "This right has always existed, but we didn't know enough in the past to recognize it applied in this circumstance. Now we do."
posted by Chanther at 2:27 PM on April 7, 2009 [3 favorites]


There is absolutely no constitutional basis to question the Vermont legislature granting the right to marriage to gay couples.

I don't think either your or I are familiar enough with the constitution of Vermont to be remotely confident of that.

It might be the case that the bill that was just passed did not go through some part of the process that was specified in the constitution; missed a committee report required by the constitution or failed to have an opportunity for hearing specified in the constitution.

It might also be the case that the bill is in conflict with some part of the Vermont constitution that deals with marriage, or that details how benefits of state government employees work, or some other clearly related part.

It might be the case that some minor part of the bill's language conflicts with some other, apparently unrelated part of the Vermont constitution.

None of these are likely at all given Vermont's brief, vague constitution, but the point stands for states in general, where it is not at all uncommon to have sections dealing with marriage or the civil service and benefits thereof or a thousand other things.
posted by ROU_Xenophobe at 2:34 PM on April 7, 2009


But we absolutely can come together and say "You, judicial system, have Fucked Up and we are going to force what we want."

With the emphasis on the "force."
posted by blucevalo at 2:36 PM on April 7, 2009


More broadly, dios, I get some of what you're saying. I, also, like that we can now see same-sex marriage being put into place through normal majoritarian processes instead of being imposed on a largely recalcitrant populace.

But, I suspect from the language you used and your broader history that you didn't intend to laud Vermont so much as put suspicion onto rights that were imposed on a largely recalcitrant populace by courts. That is, I think that you don't mean "Yay Vermont!" so much as "Boo Warren and Burger courts!" Understandably, that's going to rankle people because distinguishing between being opposed to the content of those right and being opposed to the manner in which they were put into legal enforcement is difficult, and pretending the latter when the former is true is an all-too-common rhetorical tactic.

As well, I think you're simply mistaken when you assert that a law passed by a state government is by necessity on any firmer foundation than a right "discovered" or otherwise put into enforcement by a state or federal court. Ask the people running medical marijuana operations in California if you don't believe me.
posted by ROU_Xenophobe at 2:41 PM on April 7, 2009


As for Loving if you beleive it is wrong for courts to recognize rights, not previously acknowledged, I do not see how you can argue that Loving could be rightly decided.

Since I do not believe it is wrong for courts to recognize rights not previously acknowledged, this really doesn't apply. I think it's wrong for courts to pretend that constitutional rights exist where they do not, and thereby draw up new "rights" from whole cloth. I don't think that is what the Loving court did and I, therefore, agree with Loving.
posted by The World Famous at 2:44 PM on April 7, 2009


we could slip gay male marriage in through the back door

I'm going to pretend you didn't say that.
posted by Faint of Butt at 12:02 PM on April 7


Eponysterical!
posted by kaibutsu at 2:56 PM on April 7, 2009 [1 favorite]


WELCOME TO THE PARTY, VERMONT!
posted by rmd1023 at 3:13 PM on April 7, 2009


Way to go, Vermont and Iowa! I wish that I would live long enough to see the entire nation provide equal access to legal marriage for all adults . . . and then abolish the entire concept of legal marriage.

Oh well, a girl can dream.
posted by FelliniBlank at 3:32 PM on April 7, 2009 [1 favorite]


Amazing that Vermont can do this but CALIFORNIA can't. Maybe the left coast is on the right side of the country after all.
posted by sh0ganai at 4:11 PM on April 7, 2009




Amazing that Vermont can do this but CALIFORNIA can't. Maybe the left coast is on the right side of the country after all.

Some of the crucial differences are procedural. If it was as hard to modify the state constitution in California as it is in Iowa and Vermont, gay marriage would be legal there.
posted by nebulawindphone at 5:00 PM on April 7, 2009


Since I do not believe it is wrong for courts to recognize rights not previously acknowledged, this really doesn't apply. I think it's wrong for courts to pretend that constitutional rights exist where they do not, and thereby draw up new "rights" from whole cloth. I don't think that is what the Loving court did and I, therefore, agree with Loving.

Could you give us an example of a court"making up" a right from whole cloth?

Also, how is this situation any different from Loving? Indeed the Iowa case is a situation better for the plaintiffs. There, a state law and US Supreme court precedent supported the position of the state. Here, to my knowledge, no precedent banning gay marriage existed in the Iowa supreme court. I just can't see how one could consider Loving correctly decided, yet feel that the Iowa supreme court to have erred in this case. The positions seem mutually incompatable to me.
posted by Ironmouth at 5:20 PM on April 7, 2009 [1 favorite]


Woooooooooooooooo!
posted by bitter-girl.com at 5:23 PM on April 7, 2009


Way to go, Vermont and Iowa! I wish that I would live long enough to see the entire nation provide equal access to legal marriage for all adults . . . and then abolish the entire concept of legal marriage. Oh well, a girl can dream

This position makes no sense. Why would you deny people the right to do as they please? That's what this fight is about. Your position denies people the right to do as they like.
posted by Ironmouth at 5:26 PM on April 7, 2009


As well, I think you're simply mistaken when you assert that a law passed by a state government is by necessity on any firmer foundation than a right "discovered" or otherwise put into enforcement by a state or federal court. Ask the people running medical marijuana operations in California if you don't believe me.

But national laws grounded in the US Constitution's commerce clause supercede the state laws in that case. A poor example from a legal standpoint.
posted by Ironmouth at 5:37 PM on April 7, 2009


I needed some good news today. Glad the state of Vermont (or the everlovin' veto-overridin' majority of it) has my back. yeehaw!
posted by anotherpanacea at 5:48 PM on April 7, 2009


Could you give us an example of a court"making up" a right from whole cloth?

Sure. Griswold v. Connecticut. I think that people should have the right that the Court created in that case, but I think the Court quite clearly invented it from whole cloth. Penumbras and emanations? That is, as you have said, basic Con Law stuff. Setting aside the politically-loaded and, frankly, usless term of "judicial activism," Griswold is quite commonly recognized as an example of the Court pulling a right basically out of nowhere (the majority could not even agree on where the "right" comes from). Let me reiterate: I agree with the Griswold court that people should have that right. And I do not think that any subsequent court should overturn Griswold or most of the cases that follow it (I would say any, but I am not familiar with every privacy case that followed Griswold, so maybe there are some I would think should be overturned). But the Court made up the right from whole cloth and then pretended that it was coming from the Constitution. What we learn from Griswold and its progeny is, among other things, that the Supreme Court has the apparent power to decide on its own what rights people should have and to then issue a binding opinion that pretends that that right comes from the Constitution and wherein the majority justices disagree about where in the Constitution that right is implicated--and that no one has authority to call the Court on that tactic, no matter what right the Court decides to "find" hiding in the penumbras and emanations.

Again, it is a Constitution that we are "expounding."
posted by The World Famous at 6:00 PM on April 7, 2009


But national laws grounded in the US Constitution's commerce clause supercede the state laws in that case.

That was my point, in counterpoint to dios's misplaced assertion that if a legislature creates a right there can't be any possible question about whether it actually exists.
posted by ROU_Xenophobe at 6:07 PM on April 7, 2009


California's constitution is WAY TOO EASY to amend. That's part of why our budget is so fucked—constitutional mandates for all sorts of trendy funding bullshit.

Definitely. This is the problem with Prop 8, of course -- the court has to rule that the Constitutional amendment is itself unconstitutional, which is possible but tricky (comes down to whether the amendment was permissable under the part of the constitution that allows amendments). But this same process produced Prop 13, which when combined with all the spending guarantees in later amendments means that we're basically fucked when it comes to budgeting. Probably 70% of the amendments passed in California over the years should be swept clean --- I really think the bar should be as high for state _constitutional_ amendments as it is for federal. Propositions that simply create laws are fine (like the original gay marriage ban that was struck down), but I'd prefer the Constitution stuck to principles, division of power, rights, etc and dealt less with specifics.
posted by wildcrdj at 6:10 PM on April 7, 2009


I think that people should have the right that the Court created in that case, but I think the Court quite clearly invented it from whole cloth.

But what possible reason is there for people to have the right that the Warren Court in Griswold "invented from whole cloth," since it conjured up "penumbras and emanations" that do not explicitly exist? Why should Griswold not be overturned, even though it sums up the protections of the Ninth Amendment more eloquently than any decision the Supreme Court has ever issued?
posted by blucevalo at 6:29 PM on April 7, 2009


But what possible reason is there for people to have the right that the Warren Court in Griswold "invented from whole cloth," since it conjured up "penumbras and emanations" that do not explicitly exist?

What reason should people have rights that aren't in the U.S. Constitution? Because the U.S. Constitution is not the be-all and end-all of the rights people should have and there are, as Griswold demonstrates, some pretty important rights that are not in the U.S. Constitution. That's why.

Why should Griswold not be overturned

Because I'm not heavily into the idea of overturning Supreme Court opinions that generally make the world a better place, even if they are founded on nothing but happy thoughts and eloquent turns of phrase. I wish justice would come about by the proper means, and I don't like it when the Court makes stuff up, but I'm glad when they make something up that I like, rather than something that I don't like. But there I go being a pragmatist.

even though it sums up the protections of the Ninth Amendment more eloquently than any decision the Supreme Court has ever issued?

Sums up? I think the Ninth Amendment itself sums itself up pretty nicely, and I don't see any need or justification for the Court to reinvent it. Moreover, eloquence is not a fantastic excuse for making something up law that's not there. Scalia is very eloquent much of the time, but that doesn't mean he's right.
posted by The World Famous at 6:42 PM on April 7, 2009


What reason should people have rights that aren't in the U.S. Constitution? Because the U.S. Constitution is not the be-all and end-all of the rights people should have and there are, as Griswold demonstrates, some pretty important rights that are not in the U.S. Constitution. That's why.

I'm trying to figure out what you're saying here. Can you clarify: are you saying that the right put forth in Griswold exists, and that the Supreme Court was right to say that it exists, but the Court was wrong to find it in the Constitution, because it really comes from someplace else? If so, where does it come from?

I think that's what the Ninth Amendment is for. For some reason, judges have been afraid of the Ninth Amendment -- hence, penumbras and emanations -- but it's a pretty good hook on which to hang unenumerated rights, and it's what Griswold should have been based on.

Maybe I agree with you but I'm just thinking different semantically about it. I think that unenumerated rights are part of the Constitution by way of the Ninth Amendment. You think that unenumerated rights are not in the Constitution but are pulled into our legal system via the Ninth Amendment. Am I misinterpreting you?
posted by Tin Man at 8:22 PM on April 7, 2009


btw, awesome thread. where else do you get this but here.
posted by Ironmouth at 8:41 PM on April 7, 2009 [3 favorites]


...where else do you get this *butt* here.

Hey, I saw what you did there!
posted by ericb at 8:49 PM on April 7, 2009


You think that unenumerated rights are not in the Constitution but are pulled into our legal system via the Ninth Amendment.

I think that unenumerated rights are not granted by the Constitution at all, but that they should be granted by legislation. I think that there exist, in the world, certain inalienable rights that are inherent for all humans with respect to each other and their governments, regardless of whether their governments, through constitutions or otherwise, recognize or grant them those rights. I think the Ninth Amendment is pretty succinct and clear as to its meaning: The fact that some rights are enumerated in the Constitution does not mean that other rights -- whether enumerated elsewhere or not -- should not exist and be added to those enumerated in the Constitution and elsewhere. Unenumerated rights, to the extent that they are actually part of the inalienable rights of all of humanity, should, under our system of government, be granted legislatively. And, though I recognize the tyranny of the majority and the importance of protecting those in the minority, I think that the task of deciding what rights exist and should be made law in addition to those enumerated in the Constitution and the various other laws of the United States should fall upon the people, rather than on the courts. I like the Bill of Rights, and I especially like that it did not come into being because five judges decided that it should be that way, no matter what our new country and its people thought.
posted by The World Famous at 8:56 PM on April 7, 2009


I WROTE LETTERS!!!

yeah, we're pretty happy here, most of us.
posted by jessamyn at 9:03 PM on April 7, 2009 [2 favorites]


This conversation is basically following the lines of a conference I went to a couple years ago which was put on by the American Constitution Society. It was called "The Constitution in 2020" or something like that - looking forward at constitutional developments and specifically asking both constitutional scholars and practitioners what steps should be taken to begin fully recognizing human rights here in America. Everyone took their seats and was expecting strategy and constitutional mumbo-jumbo about how to win things like gay marriage and the right to work and other hippie stuff. And the panelists just calmly sat there and told everyone they were barking up the wrong tree and that they needed to be looking at legislative activity.

We're looking at this the wrong way. We want a court to come in and say, "Yes: forever and ever amen." (And understandably so, because that's POWER and that's something that we can enjoy now.) But that's not productive from a legal standpoint. It is short-term thinking. (Again, understandably, because people want to get married NOW!) And in the end it is counterproductive and even potentially dangerous. Penumbras and emanations are pretty and all, but it's a prime example of a good idea with some of the most problematic applicability imaginable.
posted by greekphilosophy at 9:17 PM on April 7, 2009


I think this thread got derailed on the word "legitmacy" early. It's not that an unpopular court decision based on constitutional provisions is illegitimate, meaning wrong; that's precisely what a constitution is for.

But if the courts get too far ahead of public opinion, their decisions will lack political legitimacy -- a better term is political authority, maybe -- and it can lead to a counterproductive backlash. The Loving v. Virginia case is actually a good example of the court waiting until a popular opinion was decisively behind a a change before making it.

Opposite example; judge-ordered school busing in the 1970s. Not only did this fail to integrate inner city schools, it arguably drove millions of votes to conservatives, from Nixon on, and led to white flight to suburbs. How are inner city schools doing today? Not so good. The court fiat let racists argue about courts overriding the majority, instead of debating the issue itself where their case was much weaker.

There are 4 far-right votes on the Supreme Court right now, and only the tenacity of multiple 80+-year-old liberal justices kept that from being a majority. Think about a complete abortion ban, based on a right to life uncovered in the constitution, complete bans on gun control based on the second amendment, etc. One mistake by Obama, picking a judge who's unpredictable, and we're there for decades.
posted by msalt at 11:33 PM on April 7, 2009


Msalt's hitting it on the head. Although I disagreed with The World Famous' and Dios' legal analysis, I agree from a political standpoint that legislative enactment undercuts the "activist" judges line quite well.

However, some areas of the country progress is hundreds of years off. Without Loving v. Virginia blacks and whites might still not be able to marry.

Also this idea that cases will be reversed again and that the prior courts would have therefore wrongly "created" new rights is just the "Constitution in Exile" theory by another name.
posted by Ironmouth at 6:47 AM on April 8, 2009


This position makes no sense. Why would you deny people the right to do as they please? That's what this fight is about. Your position denies people the right to do as they like.

Abolishing marriage and "marital status" doesn't deny people anything. Consenting adults would be entirely free to make whatever promises and/or domestic arrangements they want, publicly or privately, just as they are now. If people wanted to call themselves married or have someone "join" them or whatever, fine. They could designate anybody they want as next of kin or beneficiary, sign mortgage or child-custody contracts together, etc., etc.

It would simply deny the State any power to license, regulate, approve, disapprove, reward, punish, dissolve, or otherwise stick its bossy nose into people's domestic situations. The fundamental problem behind the whole same-sex marriage bigotry mess is that the gov't/culture feels entitled to "bless" some kinds of interpersonal relationships but not others and convey extra privileges to people who live in certain "approved" ways but not to others -- like income tax breaks for people who choose to have children, for instance.
posted by FelliniBlank at 7:16 AM on April 8, 2009


It would simply deny the State any power to license, regulate, approve, disapprove, reward, punish, dissolve, or otherwise stick its bossy nose into people's domestic situations.

I think what the people want, and what you're denying them, is the right to have the state sanction their union. You are disallowing that.

Frankly, you misstate what the state is here in the USA. The state is the collective will of the people regulated by the Constitution. Of the people, by the people, for the people.

It is often forgotten in the hubub of political life, because no party in the minority wants to think that their ideas are somehow not approved by the people. So they invent the idea of "big government" or "big brother" or the "state." A smart political play--even for anarchists and communists--but one which in the long term weakens the body politic. Because the mechanism for us to obtain what we think is right is in front of us--we must vote and participate, not attack from the sidelines. Granted, there are some who legitimately think that coming together in a universal organization to regulate our conduct amongst one another is wrong, but the great mass of followers of these ideas just don't like things the way they are and, wishing they were different, attack the foundations of our communal relations with one another.
posted by Ironmouth at 8:10 AM on April 8, 2009


Also, this is the death of "movement conservatism." They've hung their hats on the idea that they have the masses to control the cultural destiny of the nation. They clearly do not have the masses to do this.

I just read a pathetic e-mail from my good friends at the Family Research Council, which weakly implied its hordes were about to turn out the 2/3s of Vermont's legislature out of office. Not. Gonna. Happen. Right then it totally hit me how out of gas these people were. They are so done.
posted by Ironmouth at 8:19 AM on April 8, 2009


Right then it totally hit me how out of gas these people were. They are so done.

I wish that were so, and right now it looks like they are pathetic and flailing, but I don't think it's inevitable that the Family Research Council and its ilk are done. They are well-financed, they have many advantages at their disposal, they have been waging these culture battles for decades now, and it is difficult to believe that they don't have strategists who recognize that there is a time to push with all that you've got and a time to lie in wait.

Early on, it seemed inevitable that Proposition 8 in California would lose (it had to, this was California, the bellwether state, etc., etc., etc.), but the attack ads that the Yes on 8 campaign had in its quiver were far more persuasive and compelling, although made up completely of lies, than anything that the other side had. And now Prop 8 is the law in California, "whether you like it or not" (to quote Gavin Newsom).
posted by blucevalo at 8:44 AM on April 8, 2009


Anyone who worries about gay marriage ought to know that anything a judge can do, a motivated majority can undo. Hawaii went through this in 93 and 98. The fact that the opposite is also true is part of the quandary of constitutional democracy. No matter how fine-grained your approach the problem, there will always be a tension between democracy and rights.
posted by anotherpanacea at 8:45 AM on April 8, 2009


anotherpanacea's point is an important one (as is Ironmouth's above). If same-sex marriage comes to the United States via a series of controversial court decisions, we can fully expect it to be the next Roe v. Wade in terms of dominating the political sphere for decades to come, with every judicial nomination and presidential election having a strong element of people asking whether this new judge or administration will overturn the controversial decision.
posted by The World Famous at 9:06 AM on April 8, 2009


Anti-gay marriage group warns of "coming storm":
There's a storm gathering. The clouds are dark, and the winds are strong, and I am afraid. Some who advocate for same-sex marriage have taken the issue far beyond same-sex couples. They want to bring the issue in to my life. My freedom will be taken away.
Which prompted this comment:
To anti-gay bigots - GROW THE FUCK UP. It is 2009. I'm sure you are probably against interracial marriage, the vote for women and desegregation because all those causes were bible-quoted to death, too and look where that got them. You are losing and you will continue to lose and will end up looking like the fucked-up bigots you are.
posted by kirkaracha at 9:42 AM on April 8, 2009 [3 favorites]


If same-sex marriage comes to the United States via a series of controversial court decisions, we can fully expect it to be the next Roe v. Wade in terms of dominating the political sphere for decades to come, with every judicial nomination and presidential election having a strong element of people asking whether this new judge or administration will overturn the controversial decision.

I doubt that highly. I think it makes it harder to lay out an opposition to it, however, there will be no battle for years and years on it. There's no OMG! BABIES! part of it all. Furthermore, the Christian Right is on the wrong side of the abortion issue now, so I don't think people are really going to be pumping that on either side. Obama ran on a totally-pro choice platform, balls out. No "trying to reduce the number of abortions" or anything like that. He said it should be legal. McCain mumbled something and moved on to the next question.

We are in a new paradigm folks.
posted by Ironmouth at 9:45 AM on April 8, 2009


Anyone who worries about gay marriage ought to know that anything a judge can do, a motivated majority can undo. Hawaii went through this in 93 and 98. The fact that the opposite is also true is part of the quandary of constitutional democracy. No matter how fine-grained your approach the problem, there will always be a tension between democracy and rights.

To quote General Grant:

"I am heartily tired of hearing about what Lee is going to do . . . go back to your command and try to think what we are going to do ourselves."


Us running from them got them nothing. They need to answer questions about the human implications of the bigoted, exclusionary policies they advocate. If by court, so be it. If by legistlative enactment, so much the better.
posted by Ironmouth at 9:52 AM on April 8, 2009 [3 favorites]


The World Famous wrote If same-sex marriage comes to the United States via a series of controversial court decisions, we can fully expect it to be the next Roe v. Wade in terms of dominating the political sphere for decades to come, with every judicial nomination and presidential election having a strong element of people asking whether this new judge or administration will overturn the controversial decision.

In the second place, I don't think you're correct. Interracial marriage came to the US via a series of controversial court decisions and the furor over that died down in just a few years.

But, even assuming you're right, so what? Let the right work themselves into a froth over a non-issue that no one but loonies really cares about. You'll note that all the ranting about Roe from the right hasn't won them a lot of elections.

Courts exist to enforce the noble sounding words that people write, but don't really mean. Sure, ask people "should the law apply equally to all?" and they'll say yes. Ask them "should the government grant special privileges to some citizens but not all?" and they'll say no. But when it comes to taking the plain meaning of that noble talk about rights and equality people balk.

Courts exist to say "look chum, you bloody well said no special rights for some, that means you can't give marriage just to heterosexuals even if gay sex squicks you." That's their job, their function. If we run from letting courts do what they're supposed to do, then we're well and truly lost.
posted by sotonohito at 10:05 AM on April 8, 2009 [2 favorites]


If same-sex marriage comes to the United States via a series of controversial court decisions, we can fully expect it to be the next Roe v. Wade in terms of dominating the political sphere for decades to come, with every judicial nomination and presidential election having a strong element of people asking whether this new judge or administration will overturn the controversial decision.

So what if bigots, misogynists and other religious control freaks have one more thing to wrong their tired hands over. Rights are rights.
posted by Blazecock Pileon at 11:02 AM on April 8, 2009


Us running from them got them nothing. They need to answer questions about the human implications of the bigoted, exclusionary policies they advocate.

I agree. Have you noticed, though, how neither party seems willing to do that? That's one problem with secret ballots: you can vote preferences you'd never dare utter aloud.

Still, I think if we keep hammering this culturally, the tide will continue to turn, especially locally, state-by-state. Frankly, this is a great issue for Republicans, if they can get behind it: gay marriage is actually a very conservative idea, since it would allow them to again align themselves with the nuclear family against all that loosey-goosey liberal promiscuity. Ultimately, the bumper stickers are right: Gay Couples Have Family Values, Too.

Like the Democrats, the Republican Party is in the business of winning elections, and one way to do that is to split the opposition's base. Values voters include a minority of folks who'd love to be Log Cabin Republicans if the party would just stop calling them names for a second. It'll be much easier for gay and lesbian voters to switch parties to match their class ambitions than it has been for African-Americans.

None of that's a bad thing: it's just advice for Republicans who are looking for some way to flourish with this new generation, akin to the British Parliament's Conservatives pursuing a platform devoted to shopkeepers. Ideological realignment is just another word for rebranding, and hey, the alternative is a couple more decades in the minority. What's a bigoted principle worth against that kind of longterm defeat?
posted by anotherpanacea at 11:03 AM on April 8, 2009


You'll note that all the ranting about Roe from the right hasn't won them a lot of elections.

What country are you talking about?!?!? Republicans have controlled the presidency 21 of 29 years since 1980, and abortion politics are a huge part of that. The anti-abortion activists are the backbone of the Republican coalition and the issue is their biggest moral crowing point.

I've read a very compelling argument that Roe v. Wade set back the pro-choice movement horribly. In 1973, the trend was clearly to states liberalizing abortion laws. The right had no argument on substance; Roe gave them the ability to "defend democracy" instead of defending government intervention in people's personal lives.

Look, change like gay marriage is a big deal and it requires a 3 prong strategy;

1) most importantly, grass roots conversion (which is very successful, even among young conservatives)
2) legislative change, building off of #1, and
3) judicial endorsement on the basis of rights.

But #3 can't be more than, oh, 10% ahead of #1 and #2 or you get a backlash. Saying "rights are rights" is naive, because voters can change those rights. Since 2004, 26 states have banned gay marriage in their constitutions. This is losing ground by any standard.
posted by msalt at 11:26 AM on April 8, 2009


What country are you talking about?!?!? Republicans have controlled the presidency 21 of 29 years since 1980, and abortion politics are a huge part of that.

That's a statement that needs support. Americans vote with their percieved wallets.

This is losing ground by any standard.

Scoreboard.
posted by Ironmouth at 11:46 AM on April 8, 2009


There's a storm gathering. The clouds are dark, and the winds are strong, and I am afraid. Some who advocate for same-sex marriage have taken the issue far beyond same-sex couples. They want to bring the issue in to my life. My freedom will be taken away.

This ad is classic propaganda. But if what they say about freedoms being taken away and "bringing the issue into my life" were even remotely true, they would experience a small fraction of how I have felt in this country my entire life.
posted by blucevalo at 11:57 AM on April 8, 2009


I think what the people want, and what you're denying them, is the right to have the state sanction their union. You are disallowing that.

I'm what? Wow, did somebody make me Empress-for-Life and forget to tell me?* Because I'm pretty sure I was simply expressing a fanciful and not terribly pragmatic hope that eventually, someday, probably centuries from now, the 99.88888% of Americans who disagree with my position on this issue will have come to their senses.

*If so, subjects, I hereby decree the national motto henceforth shall be, "I'm a streetwalkin' cheetah with a heart full of napalm. "
posted by FelliniBlank at 12:10 PM on April 8, 2009


Andrew Sullivan looks at the post “judicial activism argument” world.*
posted by ericb at 12:12 PM on April 8, 2009


woohoo!!! New England's halfway there!

Come on Rhoddy! Ignore this asshole.

'Traditionalist' Rhode Island Gov Joins Anti-Gay Marriage Campaign
"A group against gay marriage has a very prominent politician in its corner. Gov. Donald Carcieri and his wife, Sue, joined the Rhode Island Chapter of the National Organization for Marriage Wednesday morning at the State House as it launched its new media campaign. The campaign, which supports marriage between a man and a woman, will run in several states. It's being launched just as Rhode Island's General Assembly is about to consider legislation that would allow same-sex couples married in another state get divorced in Rhode Island. During the news conference, Carcieri called himself a 'traditionalist' and said the best upbringing for a child is in a home with a mother and father. He said he is not anti-gay, rather he believes the issue should be decided by voters, and not by courts or legislators."
posted by ericb at 12:24 PM on April 8, 2009


"He said he is not anti-gay, rather he believes the issue should be decided by voters, and not by courts or legislators."

"I realize how amazingly stupid that sounds," added the governor, "seeing as how the legislators are chosen by the voters and explicitly tasked with making laws. But Jesus Christ, folks, we can't just have people vowing to love each other for the rest of their lives. Not in my Rhode Island."
posted by Optimus Chyme at 12:32 PM on April 8, 2009 [2 favorites]


I'm what? Wow, did somebody make me Empress-for-Life and forget to tell me?* Because I'm pretty sure I was simply expressing a fanciful and not terribly pragmatic hope that eventually, someday, probably centuries from now, the 99.88888% of Americans who disagree with my position on this issue will have come to their senses.

Aaaah, much different. What you meant to say was I hope people get tired of marriage and they stop offering it. OK. I can see that.
posted by Ironmouth at 12:49 PM on April 8, 2009


Far beyond gay marriage? What, like polyamory? I don't think anyone's stupid enough to push for human-animal marriage, though I do hear one girl in Italy tried to marry a dolphin, but that's Italy.
posted by kldickson at 1:17 PM on April 8, 2009


Abolishing marriage and "marital status" doesn't deny people anything.

Yes, it does, despite the "abolish legal marriage and handle it all by contract" libertarian argument. It's true that many of the legal benefits of marriage can also be obtained by contract, but not all of them. Spousal privilege, for example. You can't just create privilege between two parties by contract, and with good reason.
posted by DevilsAdvocate at 1:37 PM on April 8, 2009


>>Republicans have controlled the presidency 21 of 29 years since 1980, and abortion politics are a huge part of that.
>That's a statement that needs support. Americans vote with their percieved wallets.

I didn't realize that was even controversial. What kind of evidence would you like?

The essence of Nixon's "silent majority" strategy -- brought to fruition by Reagan -- was breaking blue collar men and Catholics away from the Democratic coalition. Abortion is THE wedge issue with Catholic voters, resulting in bishops and priests refusing communion to Democratic politicians who otherwise agree with the Church's positions 100%, (OK, except maybe birth control) etc. etc.
posted by msalt at 1:39 PM on April 8, 2009


Abortion is THE wedge issue with Catholic voters

Au contraire:

CHICAGO, Illinois, NOV. 6, 2008 (Zenit.org).- More than half of U.S. Catholics voted Tuesday for a presidential candidate at odds with the Church's stance on issues such as abortion and same-sex marriage, despite the urging of more than 50 heads of dioceses to support pro-life candidates.

Again, I'm not saying that we need to get complacent, but that's a battle we've already won. Time to start acting like it. Because its the running away from our own beleifs that turns people off, not the positions we hold.
posted by Ironmouth at 1:45 PM on April 8, 2009 [1 favorite]


Ironmouth, that link you cite was a story about people amazed that Obama won 54% of the Catholic vote "despite the strong stand of over 50 heads of dioceses against candidates who support abortion." In a year he won a landslide victory! In 1960 and 1964, the Democratic presidential candidates won 78% and 76% of the Catholic vote.

Evangelicals were not always Republican voters, either:
"Reagan Democrats were mostly white ethnics in the Northeast and Midwest who were attracted to Reagan's social conservatism on issues such as abortion, and to his strong foreign policy. ... In addition to its white middle-class base, Republicans attracted strong majorities among evangelical Christians, who prior to the 1980s were largely apolitical. Exit polls in the 2004 presidential election showed that ... one third of the Southern voters said they were white evangelicals; they voted for Bush by 80–20." from wiki.

Obama reclaimed some of the evangelicals, as well as some Catholics, with his open professions of faith. But abortion was clearly working against him. And that isn't even getting into the importance of anti-abortion voters as donors and volunteers for Republicans.
posted by msalt at 2:44 PM on April 8, 2009


But abortion was clearly working against him.

You know, my law school writing teacher always told me to watch out for the word "clearly." He said that it usually gets used when things are not clear at all.

I heartily disagree with your assesment. I'm going to have to see something to prove it.

I think we have to stop thinking that the only voters that count are white males. Because women went for Obama pretty strongly. A total of 53% of voters, they voted 56% for Obama. Why? Abortion. This was with a woman on the GOP ticket.

One of the things Democrats had forgotten is that every move your opponent makes opens him up to attack somewhere else. Yes, abortion helps them with some white southerners, but it hurts them with women, who now vote in higher numbers than men.

We need to stop running scared like this is 1992. It isn't. Times have changed, the electorate has changed.

Look at these polling numbers:


Quinnipiac University Poll. July 8-13, 2008. N=1,783 registered voters nationwide. MoE ± 2.3.

"In general, do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman's right to an abortion?"

.

Agree Disagree Unsure
% % %
7/8-13/08 63 33 5
8/7-13/07
62 32 6
12/05
63 32 5
7/05
65 30 6
5/05
63 33 5

Hovers somewhere between 62%-65% Approval for Roe v. Wade.

The American people are more pro-choice than they are anti-choice. How it "hurts" Obama to be pro choice is beyond me. These are the numbers and they haven't changed for decades.
posted by Ironmouth at 3:17 PM on April 8, 2009


In a year he won a landslide victory! In 1960 and 1964, the Democratic presidential candidates won 78% and 76% of the Catholic vote.

I believe the difference between then and now is race. The "Southern Strategy" helped the Republicans for decades. Its day is now done.
posted by Ironmouth at 3:19 PM on April 8, 2009


Ironmouth, my point is not that being pro-abortion "hurts" Obama today. It's that Roe v. Wade hurt the Democratic Party greatly in the 1970s, 80s and 90s, compared to allowing the trend toward more liberal abortion laws to proceed through legislatures.

The trend was clearly toward liberalization in 1973. The court lurched things forward, but the trend flipped toward tighter restrictions for 36 years thereafter. And Republicans were suddenly dominant in presidential races during those years, with a big shift of Catholic voters away from Democrats.

Maybe public opinion has finally caught up with the Court's opinion. But there's a big price to be paid for being so far out in front.
posted by msalt at 4:15 PM on April 8, 2009


Perhaps the more important point is that abortion remained and still remains a hot-button political issue to this day, well after the Court "settled" the issue by reading it into the Constitution, and that issue has taken up political and intellectual energy that could likely have been much better dedicated to other things if abortion rights had come by way of legislation rather than judicial fiat.
posted by The World Famous at 4:21 PM on April 8, 2009


The trend was clearly toward liberalization in 1973. The court lurched things forward, but the trend flipped toward tighter restrictions for 36 years thereafter. And Republicans were suddenly dominant in presidential races during those years, with a big shift of Catholic voters away from Democrats.

Maybe public opinion has finally caught up with the Court's opinion. But there's a big price to be paid for being so far out in front.


You simply have your facts wrong. 68% of people approved of legal abortion in 1973 the year of Roe. Roe did very little. Abortion has polled at the same level for decades. Right to lifers have been lying to you about this for a long time. Dont believe them.

Approval of legal abortion increased dramatically among Americans between 1965 and 1973 (from an average of 41 percent for six different reasons in 1965 to 68 percent in 1973). Levels remained stable through 1977, then showed a slight but significant decrease (to an average of 64 percent) in 1978, rebounding in 1980 to the 1973-1977 level.

As of 1980, Americans are about six times more likely to approve than to disapprove of legal abortion for all six reasons cited in a survey sponsored by the National Opinion Research Center of the University of Chicago. (These range from the pregnancy's causing health endangerment to a married woman's not wanting any more children.) Although only seven percent of respondents disapprove of legal abortion for all the stated reasons, more than half of those who approve do not do so for all reasons.

There has been some fluctuation in approval associated with widely publicized major political and judicial actions (e.g., the 1973 Supreme Court decisions, enforcement of the Hyde Amendment, lifting of the federal ban-albeit only temporarily-on federally funded abortions). However, the behavior of the more than one million women each year who obtain legal abortions has as yet demonstrated no clear effect on public attitudes.

Multiple regression analysis of the independent effect of eight types of factors on abortion attitudes (by themselves and in combination) was conducted.

Seriously, find me a study that says otherwise. Becasue it has been this way for decades. Abortion has wide approval amongst the American populace and has had wide approval for decades.
posted by Ironmouth at 4:25 PM on April 8, 2009 [1 favorite]


Perhaps the more important point is that abortion remained and still remains a hot-button political issue to this day, well after the Court "settled" the issue by reading it into the Constitution, and that issue has taken up political and intellectual energy that could likely have been much better dedicated to other things if abortion rights had come by way of legislation rather than judicial fiat.

33% of the population has complained about it for years. The atmospherics of the coverage have been the problem.
posted by Ironmouth at 4:26 PM on April 8, 2009


Approval of legal abortion increased dramatically among Americans between 1965 and 1973

Exactly. That's why it would have been smarter to let the democratic process make the change, state by state. Do you think it's a coincidence that approval STOPPED rising precisely in 1973, as you just documented?
posted by msalt at 4:52 PM on April 8, 2009


33% of the population has complained about it for years. The atmospherics of the coverage have been the problem.

The potential (or perceived potential) of having just one or two Supreme Court justices appointed who could reverse the whole thing has been the problem, because it gives disproportionate power to that 33% of the population.
posted by The World Famous at 5:10 PM on April 8, 2009




Gov. Paterson to introduce marriage equality legislation in New York.

You know it is an idea whose time is come when unpopular politicians are pandering to the electorate with gay marriage.
posted by Ironmouth at 10:14 PM on April 8, 2009 [2 favorites]


Take Loving v. Virginia...Let's look at Loving v. Virginia, shall we...

Are they those two women who keep kissing each other on the lips?
posted by LeLiLo at 10:44 PM on April 8, 2009


The Daily Show With Jon Stewart -- I Now Pronounce You Ben & Jerry.
posted by ericb at 8:59 AM on April 9, 2009


Take Loving v. Virginia...Let's look at Loving v. Virginia, shall we...

Are they those two women who keep kissing each other on the lips?
posted by lelilo at 10:44 PM on April 8


Shh. Nobody tell lelilo about Bowers v. Hardwick.
posted by The World Famous at 9:48 AM on April 9, 2009


Shh. Nobody tell lelilo about Bowers v. Hardwick.


There's a reason certain cases get cert and certain others do not.
posted by Ironmouth at 10:19 AM on April 9, 2009


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