On “Activism”

One of the arguments against Same-Sex Marriage that I’ve encountered, specifically addressing the decisions of the judiciary that seem to contradict the will of the people is “this isn’t for the courts to decide, let the people decide.”

I want to mention something that I’ve mentioned before and discussed with people, but I think is worth repeating.

The role of the constitution (and by extension, the judiciary) is to protect the minorities that can’t get protection for themselves because the majority would never vote for it.  Yes, it’s entirely true that the majority of people in America might oppose same-sex marriage.  That doesn’t make it right.  And that doesn’t mean it isn’t for the judges to decide.  Whether or not the Constitution does (or ought to) protect homosexuals and their right to marry is a separate question.  But, assuming for the sake of this point that it does, then the will of the majority is irrelevant.

At one time or another, the majority of people in America thought it was a good idea that black children and white children would go to different school.  If there had been a referendum, that would have been the outcome.  However, the Supreme Court decided that “Separate But Equal” was not equal, etc. etc. Brown vs. Board of Ed, etc. you all know the story.  The fact is, there are certain rights that are protected by the constitution regardless of the will of the majority.  Despite the will of the majority.  That’s the whole point.  Maybe there were people in 1954 that said that the Supreme Court had no business integrating public schools, that they should let the people decide.  And those people would be wrong.  The same way they are wrong today.  The Supreme Court (of the US or of California or wherever) has the right, nay the obligation, to decide what’s right for the minority in respect of the constitution despite the will of the majority.  That’s the whole point.  We ignore the will of the majority to protect the minority.

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64 responses to “On “Activism”

  1. Interesting argument, but I think there’s a difference between baseless discrimination and a values debate on what constitutes marriage. There’s no discriminatory effect of not allowing gays to be married; they are afforded equal rights in every way, and civil unions should protect couples in the same way as they do anyone else. This is not about protecting minorities, but a question about SSM in terms of values. Those are very different things.

  2. Ezzie, if you were willing to take your argument to the next step, I would have no problem agreeing with you. What it sounds to me like you are saying is simply semantic. Give them all the rights that a married couple has, but call it a civil union. Fine with me. I don’t care what you call it. What I care about is the equal rights.

    If you want to take that even one step further, the government ought not be involved in marriage at all, which is an inherently religious construct. Get married as your religion defines it, man or woman or otherwise, if you want governmental rights, get a civil union, homo hetero or otherwise. That’s just semantics.

  3. Although, I do disagree that this isn’t about protecting minorties. This is about a small group of people that want their rights recognized, and the larger group of people that want to deny it. Just because the majority is framing the argument to be about “values” doesn’t really make it so.

  4. I am curios, what does the ‘right’ to marriage get you and what does the lack of this ‘right’ withhold from you?

  5. G – any right conferred to a married couple. Some examples off the top of my head include: survivorship benefits, health care decision making, filing a joint tax return (and other tax benefits), family benefits at many major companies (that may not yet recognize same sex life partners), easier adoption for married couples, etc.

  6. I still don’t understand why there is any issue with SSM. What does it matter.

    I know of hetero couples that have the strangest marriage you can think of, but that hasn’t managed to destroy the “institution.”

  7. General R. Blie

    To begin – The Volokh Conspiracy reprinted what I agree is the best argument against SSM – “Here’s the problem with gay marriage: It used to be that if you were over 40 and unmarried, people thought you were gay. If gay marriage becomes acceptable, now, if you’re over 40 and unmarried, people will think it’s because you’re unattractive!”

  8. General R. Blie

    Noyam – While I couldn’t care less about SSM, I disagree with your overly broad description of the role of the court. Simply put, the court is there to protect rights, not to identify new rights.

    From your previous comment, it seems that the “rights” you are concerned about are:
    1) the right to inherit stuff
    2) the right to make a health care decision for someone else
    3) the right to pay less taxes
    4) the right to get special benefits from private companies
    5) the right to an easier adoption

    These are all great “rights,” but they are not recognized as rights by Congress. As an example, if Congress says no one is allowed to file joint returns is the court going to say that you are stealing a marriage right. I think G is correct.

    Marriage is a status. It implies certain consequences, but the courts have generally looked at those consequences rather than status. (There is a ton of judicial history on status crimes being declared unconstitutional. E.g., SCOTUS threw out a California law making it illegal to be “a drug addict.” The law needed to be rewritten to say it is illegal to take drugs.) The court here is focusing on the status. They should focus on the actual rights. I would like to know 1) what right in particular causes them trouble and 2) why is that right constitutionally protected.

    Personally, I couldn’t care less who gets married to what. However, the court is taking a lot of liberty here. It is not supposed to be the ultimate protector of fairness. It is supposed to be the enforcer of the law. As you said, “The fact is, there are certain rights that are protected by the constitution regardless of the will of the majority.” Tell me which right is protected by the Constitution. I don’t see any one listed above.

  9. Blie – your reading comprehension sucks. I specifically was avoiding the constitutional question, and was just pointing out the flaw in the “let the majority decide” aregument.

    see, I even wrote that in the original post: Whether or not the Constitution does (or ought to) protect homosexuals and their right to marry is a separate question.

    Nevertheless, I will address your question head-on. Marriage is an activity. Being married is a status. And this isn’t a crime. The law is attempting to proscribe an activity for a certain class of people. That’s discriminatory. It has nothing to do with status.

    The “rights” I am concerned with may seem minimal in your eyes, but they are rights nonetheless. I am not saying that the rights that come with being married are what should be protected, rather I was answering the question of what are some of the rights that are attendant to being married. Those were just some examples.

    Nevertheless, they are being allowed to one group of people, and not to another.

    Finally, as you said: the court is there to protect rights, not to identify new rights. Eh, not sure what you mean. Was going to school with white children a new right or simply one the court protected? I think you’re using non-relevant words to attempt to narrow the scope, but not really accomplish anything. Is marriage a new right? Or is it protecting a right? It’s not new for heterosexual couples….

  10. General R. Blie

    Noyam – My reading comprehension is a function of the quality of the writing.

    My post was not about SSM. I was only using it (like you) as an example of the court overstepping its mandate. You seem to argue that the court should protect the minority whenever they are being disadvantaged (and the majority is not willing to step in and legislate to overcome that wrong.) My argument is that the court should only protect the minority when their rights are being violated. As such, you need a right, as defined in the law.

    As an aside, Brown v. Board of Ed is a horrible example. It is being severely oversimplified if you think that this was protecting a minority’s right. The court ruled on the basis of the Equal Protection clause, the Civil Rights Act (the one from the late 1800’s not the 1960s) to say that the state schooling system was discriminatory. They specifically state that the “right to an education” is borne from the fact that the law (Kansas State Law) makes it clear that everyone has the right to attend school. Once you grant everyone that right, the court ruled that it must be given equally. This differs from SSM in certain key ways, but I will respect your decision not to get into that for the moment.

    This post, however, seems to be about the courts role in protecting rights when the law does not cover those rights. I agree that the courts should protect minorities when the law grants them rights that are being violated. If thats what you are saying – then I agree (not really anything remotely controversial there.)

  11. survivorship benefits, health care decision making, filing a joint tax return (and other tax benefits), family benefits at many major companies (that may not yet recognize same sex life partners), easier adoption for married couples, etc.

    Correct me if I am wrong, are not all these things agreeable to many who apposing SSM so long as it is not labeled a ‘marriage’ but instead some sort of union?

    Meaning, if all of your listed rights are bestowed but the label of ‘marriage’ is withheld there should no longer be a problem from this legalistic point of things, correct?

    (The only one that I think would still be an issue is adoption, but in my book that is not a ‘right’ anyway.)

  12. Noyam – Totally agree with you. 100%, your point is completely on target. Of course, you and I probably disagree about which rights are in the constitution, but once we can agree that a certain right is constitutional, I agree with your post completely.

  13. My last comment was in reference to the original post, not subsequent comments by Noyam. I agree in part and disagree in part with both the General and Noyam. But ultimately I side with Noyam’s result.

    The right to pay less tax (along with the other marriage “rights”) is not a constitutional or fundamental “right.” But once Congress has granted that right to some people, doesn’t it have to be equitable in how it does so? General, isn’t that akin to how Brown came out?

  14. (I don’t know why a smiley face showed up in the middle of my post. It was supposed to be a close-parenthesis.)

  15. Blie and Adam – As such, you need a right, as defined in the law. The right to marry is a fundamental right. The right already exists. Opponents of SSM wish to deny it to some and not to others. Now we get to how this fits within Equal Protection and Substantive Due Process. Part of my personal feeling is that Sexual Orientation ought to be a suspect classification and therefore subject to strict scrutiny. However, even if this is not the case, can you posit a rational basis for denying marriage a distinct and insular minority?

    G – call it what you want. I mentioned this to Ezzie. As long as you grant the rights, I don’t care what it’s called. But to that effect, why not make everyone subject to civil union, and leave marriage to the various religions that created it?

  16. The right to marry is a fundamental right.

    ……….

    can you posit a rational basis for denying marriage a distinct and insular minority

    There might not be a need to. There is a question of constitutional interpretation as to whether the right to marry includes same sex marriage. I don’t think it does.

  17. And, I should add, you and I will (most likely) NOT be able to agree on this point.

  18. The right to pay less tax (along with the other marriage “rights”) is not a constitutional or fundamental “right.”

    No, it’s a consequence of the fundamental Right to Marry (see: Loving v Virginia (1967), Zablocki v Wisconsin (1978), Turner v Safley (1987)).

  19. There is a question of constitutional interpretation as to whether the right to marry includes same sex marriage.

    Please explain how that’s possible without getting circular? The court in Loving and the other cases found that the constitution contains a fundamental right to marry. Not a fundamental right for a man to marry a woman. The point of fundamental right is that it exists independent of definition and limitation. Limiting it from homosexuals is exactly the point of the argument.

  20. There’s the originalist argument, which wouldn’t come out that way.

  21. What would that be, exactly? I don’t think the Originalists have an argument on this.

    Why not? The word “marry” isn’t in the constitution, so what it meant to the “Dor HaRatifiers” isn’t relevant.

    Alternatively, defining “marriage” as they understood it gets you into some sticky establishment clause problems. See, because they might have defined it as “the union of two people in holy matrimony” and what of the holiness? The government shouldn’t have it’s fingers in the area of recognizing and legitimizing “holiness.” Or perhaps the simply understood it as the union of two people for the purposes of cohabitation, and didn’t put sex on it.

  22. “Fundamental rights” do not change with the times, argue originalists. To the extent that marriage is a fundamental right guaranteed by the framers, they certainly only had in mind the traditional family. Agreed?

  23. As long as you grant the rights, I don’t care what it’s called. But to that effect, why not make everyone subject to civil union, and leave marriage to the various religions that created it?

    You may not care, but methinks that is what lies at the heart of this issue.

    The bottom line is not all of those rights you listed, that may be was is being used as the vehicle but in my opinion what is truly the issue here is public acceptance and ligitamization.

    Stipulate all of those rights and withhold the ‘marriage’ tag and there will STILL be a fight on our hands. You final sentance is the answer but will never get anywhere bec that is what is truly at stake.

  24. Adam,

    Not really agreed. First of all, the fundamental right to marriage was elucidated in 1967. It’d be tough to say what the framers had in mind, and whether that’s really relevant at all.

    Second of all, the framers also may have had in mind, accepting your premise, that white men and black women (and vice versa) shouldn’t marry. But the Court decided that didn’t jive with Equal Protection.

    Finally, let’s narrow this to both get on the same semantic page. When I say that the fundamental right to marry exists, it doesn’t exist for a hetero couple. It exists as a right for each individual person. Therefore, the choice of partner doesn’t matter for purposes of expressing the right. I have a right to marry. The fundamental right (that isn’t changing with the times) is my right to marry whomever I want. Now, you’re trying to tell me that because of my status as a man, I can only marry a woman? That’s unfairly limiting my right. It is my fundamental right, and therefore subject to Equal Protection and Substantive Due Process.

    G – You may be right that gay rights activists would prefer to be on equal footing and not be subject to a second-class tier and categorization. I would agree in principle with that, but don’t see that as the focus of my particular (theoretical) concern.

  25. General R. Blie

    It looks like I missed a number of posts. Let’s cover them:

    1. Noyam’s rational basis argument – google it. There are at least 10 arguments against SSM (Uproots tradition, no ability to reproduce, slippery slope, marriage structure did not contemplate SSM and would have to be changed significantly to deal with the consequences, bad for raising children, etc…) I do not agree with any of the reasons on this list, but I suspect that one can find one that has a rational basis.

    2. I think we should be very careful about naming new suspect classes. I am much more worried about this slippery slope. (In general, I think the court set up a horrible and confusing framework for analyzing discriminatory actions.) If we start making more suspect classes, then where do we stop. What level of discrimination is necessary?

    3. “The court in Loving and the other cases found that the constitution contains a fundamental right to marry. Not a fundamental right for a man to marry a woman.”
    The court right to marry is specifically between a man and a woman. The court did not have to say it because it is assumed. Do not even try to suggest that the court in Loving (which I think was the 60s) would have agreed that marriage may be between two men. If they had even fathomed that issue at the time, I am fairly confident that they would have clearly stated that it refers to a man and woman.

    4. The point is that in Loving the court relied on the fact that the legislature created the right to marriage (between a man and woman of the same race) by codifying it in the law. Then it found that the law could not discriminate solely on the basis of race by adding the “of the same race.” [They probably could make some rational basis arguments here, but since race was involved, it called for strict scrutiny.]

    Here the law is not discriminatory on its face – any person can get married to a person of the opposite sex regardless of sexual orientation. That is simply what marriage is. It might be unfair if I can’t find someone of the opposite sex to whom I am attracted. But so be it. Basically, this group of people is saying we want to designate whoever we feel to be our partner in marriage. I don’t have a problem with that, but I don’t see why the courts should say that a state must allow that even if the majority of the citizens oppose. It should be the legislature that decides this issue, not the state.

  26. General R. Blie

    For some reason, I got a smiley also.

  27. Noyam – it doesn’t matter when the right was first expressed by the courts. An originalist would still say that the right only exists as it was understood to mean on the date of ratification, not as of 1967. To say that the fundamental right to marriage exists as it was understood to mean in 1967 would be to say that the judiciary made the law in 1967. That’s of course not what happened. They brought to light an already-existing constitutional right, which (according to the ’67 Court) had existed since the ratification of the constitution (or applicable Amendment(s)).

    Second, I think this sentence is irrelevant: It’d be tough to say what the framers had in mind, and whether that’s really relevant at all. We’re having a discussion about what an *originalist* argument would be, not about whether you agree with Originalism. We know the answer to that already.

    Your interracial argument has the following flaw: It’s true that interracial marriages were either not very prevalent or didn’t exist at all in the late 18th century. (If you could find even a small handful of interracial marriages, it would torpedo your argument, although such a finding is not necessary for the originalist argument.) However, there’s a difference between an unexpected (to the Framers) marriage between a white man and black woman (where the marriage is a traditional one in every sense except the race of the spouses, and so was at least contemplate-able to the framers) and same sex marriage, which was a concept that was not on the horizon and could not have been contemplated by the Framers. Putting it another way, the “institution” of marriage was understood to be a social construct that led to the nuclear family. It’s a small step to say that the spouses might be different races. It’s a much larger step to say that the couple would be of the same gender and unable to procreate. An originalist would argue (using a more sophisticated analysis than I’m doing, certainly with more sources) that while the Framers might have had interracial marriage in mind, they certainly did not have same sex marriage in mind (nor could they have, frankly). Further, there have been constitutional amendments to address racial imbalances in the constitutions – there haven’t been any to address homosexuality, let alone same sex marriage. So you don’t necessarily have to rely on what the 18th century Framers were thinking with regard to interracial marriage, but you would have to consider them when it came to same sex marriage.

    Finally, on your final point, you’re making an assumption there that an originalist might not agree with. You’re assuming that you have the right to marry, period. You may in fact only have the constitutional fundamental right to marry a woman.

  28. The point is that in Loving the court relied on the fact that the legislature created the right to marriage (between a man and woman of the same race) by codifying it in the law.

    This is plain and simple, wrong. You’re conflating equal protection with substantive due process. Read Loving: “Marriage is one of the basic civil rights of man.” (Loving v. Virgina, internal citations removed).

    That’s not a “you created a right for some, create it for all;” that’s a statement that the right to marry is a fundamental civil right. Fundamental. Already existing. Not legislatively created or creatable.

    Adam – my point about the intent of the framers was this: how can you say what the framers had in mind, when you’re talking about rights and words that weren’t used and may not have existed. It may suck for an Originalist, but some courts were Activist. And an originalist has to deal with some rulings that may create new rights that didn’t exist at the time of the ratification. It may get the originalists all bothered, but it’s true. An intellectually honest originalist would have to argue that the fundamental right to marry didn’t exist; so how can it have a meaning? That’s what I was trying to say.

    As for my “flaw,” I don’t agree. Let’s not make homosexuality out to be as new as we are. It’s existed, in one form or another, for millenia. Whether legal or not, taboo or not, that’s not relevant. From the perspective of the framers, who may have seen marriage between the races as contempible and vile and against nature (See: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.” Loving v. Virginia, quoting the trial judge in the case), inter-racial marriage and homosexual marriage were just as abnormal and unnatural, and therefore just as uncontemplateable. I think the analogy holds.

  29. Noyam – All people have the “right” to marry. Marriage, though, is defined as being between a man and a woman. If a gay person wants to exercise his or her “right” to marry, he or she certainly can.

    You will say, why do we define marriage as being between a man and a woman? Why is that the correct definition? Well the answer is because marriage is not a government institution, it is a religious institution. As such, we have to look at how religions have defined marriage. To my knowledge, every single religion in the history of man has defined marriage as being between a man and a woman. You can’t argue that government has nothing to do with religion, because most governments are formed upon a base of religion and the United States is not different. Why shouldn’t their laws and institutions encompass these religious standards? In any event, everyone in this country has a “right” to marry, some people may choose not to exercise that right because they don’t want to, and that’s fine. You will say that we should invent another “right” for these people, or better yet, amend the definition of marriage to accomodate for “same-sex unions.” The question is why?

  30. but don’t see that as the focus of my particular (theoretical) concern.

    True enough.

    It’s just that your concern may amount to worrying about issues that are just a smokescreen for the real argument.

  31. Noyam – We agree on “how can you say what the framers had in mind, when you’re talking about rights and words that weren’t used and may not have existed.”

    I’m assuming that your next sentence, “It may suck for an Originalist, but some courts were Activist,” is a reference to stare decisis. It seems like you’re agreeing that the right to same sex marriage does not appear in the constitution. In fact, you seem to be saying that same sex marriage is only a constitutional right because an activist bench said so. This is further than my argument went, because I don’t know enough about the arguments to feel confident saying so.

    What you are saying might be true: It may be that the right to marry does not exist in the constitution, and was only a construct of an activist bench in 1967. But I disagree with this statement: “An intellectually honest originalist would have to argue that the fundamental right to marry didn’t exist [prior to that Court’s decision].” I don’t see it that way. I see the Court’s argument as saying that the right to marry *did* exist, it was just never before *recognized* as existing.

    Nevertheless, even if you did want to blatantly acknowledge that the Court made up a constitutional right in 1967, and even if you wanted to suggest that, because the right never existed prior to this decision, that the right should be interpreted by the text of the decision (as you seem to suggest in your comment at 9:53 am), and even if you didn’t mind whatsoever that this was the definition of legislating from the bench, the originalist argument would still be to look back to the constitutional provision that supposedly gave footing to the decision, and interpret it at the time of ratification. Although, if there was absolutely no basis in any constitutional provision, the originalist might not feel obligated to adhere to stare decisis in the first place.

    Regarding your second point concerning the flaw in your argument, you answered it yourself in the sentence I quoted before: “you’re talking about rights and words [same sex marriage] that weren’t used and may not have existed [at the time of ratification].” The Framers “may” have seen interracial marriage as unnatural, but (1) you certainly haven’t proven that by quoting one racist trial judge in a different part of the country nearly 200 years later. A real originalist analysis would require much more research. And, (2), like I said before, there have been constitutional amendments to address racial inequities, whereas there have not been any to address homosexuality or same sex marriage. So whether the 18th-century framers thought that interracial marriage was “vile and against nature” might be totally irrelevant, superseded by a later Amendment. Further, (3), even if we do use the Framer’s mindset, and even if they did think that interracial marriage was “vile and against nature,” we would discount their personal distaste for the practice of interracial marriage in light of the fact that they (a) necessarily contemplated the existence of it, evidenced by their distaste for it, and (b) wrote other clauses and provisions concerning due process, equal protection, fundamental rights, etc. etc. If they had disdain for interracial marriage, then a black person marrying a white person of a different gender was clearly included in the definition of marriage. In contrast, same-sex marriage was unheard of and not contemplated at all, and thus could not possibly have been included in any 18th-century definition of marriage.

  32. Damn, I screwed up the italics.

  33. Adam – I like the last paragraph of your most recent post. Seems to jive with my post about the definition of marriage.

  34. General R. Blie

    I disagree with your concept of what it means to be a “basic civil right.” In US law, there are only 3 inalienable rights endowed by our Creator – life, liberty and the pursuit of happiness. The only other right mentioned in the declaration is the right to abolish the government when they do not respect those rights (but this is meant more as a duty than a right.)

    The point is that marriage is not on the list. In fact, many things are not on the list that one would expect. The right to vote or participate in government. Presumably the signers would not agree with a government that did not grant such a right, but that does not make the government inherently intolerable. A monarchy can be protective of life and liberty. The point is that all other rights – to vote, to bear arms, free speech, to practice religion – are only valid because they were signed into law, not because of some higher “fundamental” truth. Freedom or religion is only a right (fundamental or otherwise) because the 1st amendment states it. Case in point – can the court declare a constitutional amendment abolishing freedom of the press unconstitutional? What about the right to bear arms? Is this one fundamental? Maybe right to a jury? (As a legal and linguistic question – can a ratified constitutional amendment ever be unconstitutional?)

    Noyam – You seem to have another definition of fundamental rights. I would be interested to know what it is? While your at it, let us know this sacred list of fundamental rights that are so basic that the government does not have the power to change it.

  35. Adam – I don’t follow. Why do you think the framers contemplated (and apparently rejected) interracial marriage, but not homosexual marriage? What gives you the basis to say they “necessarily contemplated it.” I don’t see a basis for that.

    The framers, by the way, had nothing to do with Equal Protection and Due Process. That was ratified in 1868. So, yeah, a new right (several in fact) was created almost 80 years after the framers. Explain to me why their opinion is relevant?

    Blie – Wow. Just Wow. That is a spectacularly wrong and misguided comment. First of all: In US law, there are only 3 inalienable rights endowed by our Creator. No. To paraphrase LWY – “Please point to some law, amendment, judicial ruling, administrative decisions, etc. that established that the Deceleration of Independence as the law of the land.” (Here)

    Did you forget Con Law already? You need me to provide you a list with what the Supreme Court (not me) has decided the fundamental rights are? Go back to your BarBri outlines. Just to refresh your memory, some are: the right to marry, the right to procreate, the right to an education, the right to purchase and use contraceptives, the right to live with family, etc.

  36. First of all, I’m bored; can someone please write something?

    Second, Noyam, I’m officially logging another request for a bigger font. I know that last time I said it wasn’t that big a deal, but with nearly 40 comments, I’ve reconsidered.

    Third, one thing I think that we can all take from these comments is that there seems to be a general agreement that Noyam’s original post, regarding the judiciary’s role of protecting the minority from the majority, is pretty much agreed upon. So long as a constitutional right exists, the judiciary should ignore the popular consensus and apply the constitutional protections. Where we seem to disagree (as is often the case) is whether or not certain constitutional rights exist.

  37. You seem to have another definition of fundamental rights. You seem to forget how the Supreme Court has defined fundamental rights.

    If you want to get into a debate about the relative merits of Substantive Due Process and 14th Amendment Jurisprudence, we certainly can. But if all you can argue is by using the Declaration of Independence, I think it’ll be a short argument.

  38. Noyam, I’m officially logging another request for a bigger font. I know that last time I said it wasn’t that big a deal, but with nearly 40 comments, I’ve reconsidered.

    Denied. If you want a bigger font, change the settings on your IE. View>>text size>>largest. And get reading glasses. How old are you, 60?

  39. Nic –

    Sorry for not addressing you earlier.

    All people have the “right” to marry.

    Agreed. Well done. Oh, you wrote more.

    Marriage, though, is defined as being between a man and a woman.

    Why? For what good reason?

    If a gay person wants to exercise his or her “right” to marry, he or she certainly can.

    I’m sorry, but this doesn’t pass the smell test. This is discrimination wearing the clothing of fairness, and I call BS.

    You will say, why do we define marriage as being between a man and a woman? Why is that the correct definition? Well the answer is because marriage is not a government institution, it is a religious institution.

    I did in fact ask that. And your answer is unsatasfying. Marriage, in the context we are discussing, is a civil construct. We are discussing a state of affairs recognized and sanctioned by the government, with attendant rights that the government grants based thereon.

    If marriage were simply religious, then there would be no need for a separate fundamental right to marry, as it would be subsumed within Free Exercise.

    In the context of marriage as a government right and benefit, the religious definitions don’t matter.

  40. Noyam, you apparently only skimmed my comment. That’s OK, no offense taken. I didn’t say they rejected interracial marriage. And my suggestion that they “necessarily contemplated it” was only if you assumed as a given that they thought it was “vile and unnatural,” which was an idea that you put forth, not me.

  41. Denied.

    Wow. Now you’re the blog Nazi.

    Fascist.

  42. Actually, regarding the fact that Noyam misread my comment, I think I know what happened.

    The font is too damn small.

  43. Adam –

    I read your post carefully. Perhaps it wasn’t clearly written.

    First you said this: However, there’s a difference between an unexpected (to the Framers) marriage between a white man and black woman (where the marriage is a traditional one in every sense except the race of the spouses, and so was at least contemplate-able to the framers) and same sex marriage, which was a concept that was not on the horizon and could not have been contemplated by the Framers.?

    So I responded with this: From the perspective of the framers, who may have seen marriage between the races as contemptible and vile and against nature, inter-racial marriage and homosexual marriage were just as abnormal and unnatural, and therefore just as uncontemplateable. (parenthetical deleted)

    The point of my original response was that you have no basis to suggest that interracial marriage is any different from homosexual marriage from the perspective of the Framers.

    So when you write this: I didn’t say they rejected interracial marriage. And my suggestion that they “necessarily contemplated it” was only if you assumed as a given that they thought it was “vile and unnatural,” which was an idea that you put forth, not me. I still don’t understand why you are separating interracial marriage and homosexual marriage?

    Your original theory was that they contemplated one but not the other. My response was to wonder how you could posit that, since the concept and idea of homosexuality, however unnatural, existed, and so was just as available for contemplation. You still haven’t addressed that. Remember, this is all because the basis for your “flaw” in my reasoning was that the framers contemplated interracial marriage but not homosexual marriage. An assertion that I called out as unfounded. The reason I added the “and apparently rejected” was because if they did contemplate it, but didn’t codify it, that’s apparent rejection. If not, then explain.

  44. The point of my original response was that you have no basis to suggest that interracial marriage is any different from homosexual marriage from the perspective of the Framers.

    That’s why I added: “An originalist would argue (using a more sophisticated analysis than I’m doing, certainly with more sources) that while the Framers might have had interracial marriage in mind, they certainly did not have same sex marriage in mind (nor could they have, frankly).”

    I don’t see interracial marriage as playing any role here. The question boils down to whether same-sex marriage is a fundamental right.

    (You may want to skip down to the end at this point.)

    I initially said that an originalist analysis would find that SSM was not a fundamental right. “To the extent that marriage is a fundamental right guaranteed by the framers, they certainly only had in mind the traditional family. Agreed?”

    You did not. You said that even an originalist would find that SSM was, indeed a fundamental right. Part of your proof was that the Framers surely (likely?) hadn’t considered interracial marriage to be the norm (permissible?), and yet originalists would agree that interracial marriage is included in the fundamental right of marriage. “Not really agreed… Second of all, the framers also may have had in mind, accepting your premise, that white men and black women (and vice versa) shouldn’t marry. But the Court decided that didn’t jive with Equal Protection.” I should point out that this was only one of your arguments. So when I addressed this point, it was not necessarily at the heart of my argument, but rather a counterargument to you.

    From there, I tried to differentiate the practice and origins of interracial marriage from the practice and origins of same-sex marriage, as a way to convince you that an originalist can still find that SSM is not covered by the fundamental rights of the constitution, even though interracial marriage is.

    (1): “If you could find even a small handful of interracial marriages [at the time of the Framers], it would torpedo your argument, although such a finding is not necessary for the originalist argument.”

    (2) “[T]he “institution” of marriage was understood to be a social construct that led to the nuclear family. It’s a small step to say that the spouses might be different races. It’s a much larger step to say that the couple would be of the same gender and unable to procreate. An originalist would argue (using a more sophisticated analysis than I’m doing, certainly with more sources) that while the Framers might have had interracial marriage in mind, they certainly did not have same sex marriage in mind (nor could they have, frankly)”

    (3) “Further, there have been constitutional amendments to address racial imbalances in the constitutions – there haven’t been any to address homosexuality, let alone same sex marriage. So [an originalist doesn’t] necessarily have to rely on what the 18th century Framers were thinking with regard to interracial marriage, but [they] would have to consider them when it came to same sex marriage.”

    Homosexuality, of course, existed 200 years ago. But the practice of same-sex marriage did not exist, and was uncontemplate-able at the time.

    Your response : “From the perspective of the framers, who may have seen marriage between the races as contempible and vile and against nature (See: [quoting racist trial judge]) inter-racial marriage and homosexual marriage were just as abnormal and unnatural, and therefore just as uncontemplateable. I think the analogy holds.

    And THAT is where I gave the response that you misread due to the small font: “The Framers “may” have seen interracial marriage as unnatural, but (1) you certainly haven’t proven that by quoting one racist trial judge in a different part of the country nearly 200 years later. A real originalist analysis would require much more research. And, (2), like I said before, there have been constitutional amendments to address racial inequities, whereas there have not been any to address homosexuality or same sex marriage. So whether the 18th-century framers thought that interracial marriage was “vile and against nature” might be totally irrelevant, superseded by a later Amendment. Further, (3), even if we do use the Framer’s mindset, and even if they did think that interracial marriage was “vile and against nature,” we would discount their personal distaste for the practice of interracial marriage in light of the fact that they (a) necessarily contemplated the existence of it, evidenced by their distaste for it, and (b) wrote other clauses and provisions concerning due process, equal protection, fundamental rights, etc. etc. If they had disdain for interracial marriage, then a black person marrying a white person of a different gender was clearly included in the definition of marriage. In contrast, same-sex marriage was unheard of and not contemplated at all, and thus could not possibly have been included in any 18th-century definition of marriage.”

    The purpose of (3)(c) was to show that your argument that preceded it (“From the perspective of the framers, who may have seen marriage between the races as contempible and vile and against nature… inter-racial marriage and homosexual marriage were just as abnormal and unnatural, and therefore just as uncontemplateable. I think the analogy holds”) did not hold water, because…

    (If you skipped to the end, here is the gist of the answer to Noyam):

    True, they may have seen interracial marriage as contemptible and vile and against nature. True, they may have seen homosexuality as contemptible and vile and against nature. But they never even HEARD OF homosexual marriage. And therein lies the distinction.

    Finally, on the unrelated point: as far as I know, interracial marriage is protected as a fundamental right. Thus, I believe modern theory is that interracial marriage was *not*, in fact, rejected by the founding fathers.

  45. General R. Blie

    Noyam – I may have forgotten my con law, but I an struggling to find an instance where the supreme court decided to “create” a fundamental right without finding its backing in the law (usually the constitution itself.)

    You seem to be saying that there are some “fundamental” rights that are so innate to being that even without supporting legislation, these rights must be granted. In other words, the Supreme Court would rule “Although we can find no basis in the law for granting this right, it is so important that this right must be granted.”

    I don’t remember my con-law, but I believe that for every right the Justices struggled to find a constitutional basis. Even in Griswold, Douglas had to rely on the very fluffy “penumbra” argument to justify a right to privacy. According to you, he could have simply said – “This right is fundamental, so it must be granted.”

    My point is that the cases show you must have a basis in the legislative text for conferring a right. Once you have that basis, the court must to protect the minorities, etc…with regard to that right. However, the court is overstepping its bounds when it tries to argue that they can take such action for any right that they deem fundamental. It is the legislature (either explicitly or implicitly) which deems a right fundamental. The court simply enforces the will of the legislature with regard to those rights.

  46. Adam, several things that I parsed out of your dense self-quotation.

    First of all: you keep repeteating “But they never even HEARD OF homosexual marriage” without proving it, or having even a little bit of fact to back it up. But the practice of same-sex marriage did not exist, and was uncontemplate-able at the time. Why? Why was it impossible for someone to conceive of the idea of two men coahbiting together for the purposes of love and companionship? It’s not as far fetched a concept or possibility as you give it credit for. That’s why I added: “An originalist would argue (using a more sophisticated analysis than I’m doing, certainly with more sources) that while the Framers might have had interracial marriage in mind, they certainly did not have same sex marriage in mind (nor could they have, frankly).” Sure, an originalist might argue it, but that doesn’t add a basis for it. It isn’t so simply because an originalist argues it. And THAT is where I gave the response that you misread due to the small font: “The Framers “may” What the framers thought of interracial marriage as a moral matter isn’t important. What’s important is why you think you can separate one idea, which needed to be articulated and protected much later from another.

    Second, the fundamental right of marriage, interracial or otherwise, stems from the 14th Amendment. The fundamental rights that stem from the idea of Substantive Due Process are a problem for Originalists. Because they don’t exist in the Constitution. I argued earlier that they do in order to meet the Originalist head-on. But that presumes that the Originalist somehow twists himself into finding an Originalist interpretation for what is, essentially, an Activist concept. If not, then I don’t have to bother. An Originalist has to either accept Substantive Due Process for what is it, reject it completely and ignore that it exists or somehow twist himself into the idea that somehow this long list of rights, including to marry, to procreate, to educate your child, and to abort your pregnancy were all there in the constitution when it was drafted and ratified, and that it took 80 years and then many subsequent cases just to tease it out. Because that’s the only way it makes any sense or relevance to even think about what sort of marriage the framers contemplated or not. That’s where the problem of Originalism lies, particularly as it impacts this argument. The Court found rights in words that were not in the Constitution when it was ratified by the Framers. How does it make any sense to submit those words to the ideas and mentalities of the Framers?

    Your assertion that racial inequality was addressed in later amendments I’m not sure proves or means anything. At best it’s not relevant. At worst it cuts against your argument, because it shows that the Constitution at the time of the first ratification was a racist document. That’s first.

    Second, all forms of inequality were addressed, not just racial. The 14th Amendment doesn’t specificy which forms of discrimination it’s addressing. It’s not a leap to say that the inequality they intended to address was all forms whether then existing (racial) or to come (sexual orientation). Just as the second amendment argument of the Originalist somehow twists away from saying that the Framers were only protecting muskets because those are the only guns they knew, so to the idea of discrimination (ie: they were protecting against all of them, not just the ones they knew).

  47. Why? Why was it impossible for someone to conceive of the idea of two men coahbiting together for the purposes of love and companionship? It’s not as far fetched a concept or possibility as you give it credit for.

    I agree. This is the result that I think that an originalist analysis will yield. I can’t prove it. But it’s pretty much common sense, and i don’t think you seriously doubt it.

    As for the rest, sorry but I just got busy at work. Can’t respond. In any event, I agree that the court should protect the minority from the majority when it finds that a constitutional right exists.

  48. Actually, I disagree with the point that you made and I quoted. I agree with your premise of the paragraph, that I can’t prove my assertion that the framers had never heard of gay marriage. But I believe I would be proven right if we did a thorough analysis.

  49. GRB –

    I think you’re confusing and/or conflating Substantive Due Process and Equal Protection.

    Fundamental rights are natural rights. As you mentioned earlier, they are rights that are “endowed by [the] creator.” The court in Loving said “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

    That the justices struggled to find a constitutional basis for each right is irrelevant. The fact is, specifically for the right to marry, they did. As for your assertion that Court could say: “Although we can find no basis in the law for granting this right, it is so important that this right must be granted.” it’s simply not true. There must be a case or controversy. So obviously, if an issue is before the Supreme Court, it’s because of some statute or some violation of rights.

    Finally, and this is why I say you’re confused between SDP and EP, is because once the right is conferred/recognized, it’s protected for everybody. If it’s taken from anybody, it’s a SDP problem. If it’s taken from some and not others, it’s an EP problem. Either way, taking away the right is a problem.

    It then comes down to if you want to split hairs like Adam 🙂 and say that the right to marry a woman is fundamental, but the right to marry anyone isn’t, or try to wedge some sort of Originalist argument into an essentially Activist concept, or you want to accept the premise that marriage is a right, and it isn’t limited, and it doesn’t matter what the framers might have thought 80 or 180 years earlier, and that witholding the right is a constitutional problem.

  50. But it’s pretty much common sense, and i don’t think you seriously doubt it.

    Interesting tactic. Arguing with my basic point by saying that you think I would ultimately agree with it. Yes, I pretty much doubt the “common sense” that the framers gave thought to the types of marriage they were condoning and which they weren’t.

    Remember (from the 2A example) it isn’t just about what they’re familiar with. It can be taken forward. Guns don’t just mean muskets. Media doesn’t just mean newspapers and Old Richard’s Almanac. Discrimination doesn’t just mean racial and marriage doesn’t just mean one man/one woman.

  51. it’s not a tactic, noyam. Shirley you can’t be serious that you think that a close analysis of the time will show that they contemplated, thought of, considered, or even heard of same sex marriage?

  52. I am serious. And don’t call me Shirley.

    No, seriously, I am serious. Because of the second part of my comment which you ignored!!!!

    I don’t think, in all seriousness and with a straight face and whatever else you want, that it’s so far-fetched that if I went back in time and asked a framer what he thought of the possibility of a man marrying a man, that he would think I was an alien. Oh, no doubt he would shudder at the thought. He might not like it. But he would understand the concept.

    Because it doesn’t matter if they “contemplated, thought of, considered, or even heard of same sex marriage.” Because they didn’t contemplate, think of, considered or even hear of TV, Radio or Internet, and yet the protections for free speech that they provided apply to them. Because they didn’t contemplate, think of, consider or even hear of automatic handguns and assault rifles, and the protections they granted for guns apply to those. Because they didn’t contemplate, think of, consider or even hear of thermal imaging and sattelite photography, but the protections they granted against searches extend to those, too.

    Do I have to go on, or is my point made?

  53. Noyam, here’s what I don’t understand. Are you suggesting that because the 1967 finding of marriage as a fundamental right was done by an activist bench, that therefore this entire field should now be occupied by activists and originalists can’t participate (using originalist thinking)? Because it sounds like that’s what you’re saying.

    Also, I don’t think it’s splitting hairs. I think that there is a legitimate originalist argument that the fundamental right to marriage does not include same sex marriage.

    I think this is my last post of the day. Although I’ve said this many times on this blog, I want to make this point again. I’m not against same sex marriage from a social standpoint. I just think that it’s a legal fiction to say that the right exists within the constitution.

  54. Your point is not made. There are numerous differences which are surfacing in my head but which i just don’t have the time to get into now. I know, great tactic.

  55. (And your response should have been “And don’t call me surely.”)

  56. Are you suggesting that because the 1967 finding of marriage as a fundamental right was done by an activist bench, that therefore this entire field should now be occupied by activists and originalists can’t participate

    Not exactly. Not because it was an Activist bench, but because tt takes a lot of haranguing to try to fit a decision that is essentially activist into an originalist paradigm.

    Because as much as you may be right about this: “I just think that it’s a legal fiction to say that the right exists within the constitution” the same applies to all marriage. That’s the point. It’s not in the constitution. It was put there by the Court in 1868/1967. So now it is in there (because it was put there). So why apply 18th century thinking to it?

  57. (And your response should have been “And don’t call me surely)

    Just cuz you screwed up the set-up, doesn’t mean I have to screw up the punch-line on purpose.

  58. Whoa – I’ll stand for a lot of things, but I’ll be damned if I sit here while you suggest that I misspelled the word “surely.” That was intentional.

  59. Wow can’t believe I missed this point. I didn’t read the entire thread carefully, but I mostly agree with Adam.

    Noyam,

    Many Originalists will disagree with your entire analysis. While they might accomodate precedent as a matter of practicality, they will argue that the Constitution only protects rights that are contained within the four corners of the text, as interpreted by its original meaning. The views of the Court in Loving is entirely inapposite to that question and is therefore irrelevant.

    Because it doesn’t matter if they “contemplated, thought of, considered, or even heard of same sex marriage.” Because they didn’t contemplate, think of, considered or even hear of TV, Radio or Internet, and yet the protections for free speech that they provided apply to them. Because they didn’t contemplate, think of, consider or even hear of automatic handguns and assault rifles, and the protections they granted for guns apply to those. Because they didn’t contemplate, think of, consider or even hear of thermal imaging and sattelite photography, but the protections they granted against searches extend to those, too.

    I think you’re confusing the application of a concept with the actual boundries of the concept itself. While the populace at the time of the founding had never heard of semi-automatics, there is no doubt that they would have considered such a weapon a firearm within the meaning of the 2nd Amendment. But the idea of two men having a relationship did not arise in the 21st Century; it existed throughout history. However, it’s hard to imagine that anyone would have considered such a union a “marriage.” Therefore it’s hard to argue that marriage is a right that encompasses same-sex relationships. More likely, what the California and Mass. courts did is extend that right to cover a new group of people. And that is something only the people should do.

  60. Nephtuli – Here’s my question. Did you read through all 60 comments? Because I must say, I’m impressed if you did!

    I think it’s time for a new topic. This one should be about how the Democratic presidential nominee, whoever it is, is going to owe a ton of political favors.

  61. Therefore it’s hard to argue that marriage is a right that encompasses same-sex relationships.

    I don’t think it has to. I think the point I was trying to make is that the right when identified doesn’t have to identify or contemplate all of the possible future permutations of its application. To me, (at least in attempting to address the originalist argument) it’s sufficient that the right exists. Now, it’s simply a matter of semantics and application.

    As for the originalist having a problem with Loving, well, I still think it’s a problem. The court in Loving may have (did) use reasoning antithetical to an originalist, but unless the court is willing to overturn it, destroy the idea of fundamental rights and substantive due process, it exists. This is something the originalist, however much he dislikes the new right or finds the ruling incorrect, must live with.

    To me, it makes no sense to take a right that is admittedly not within the four corners of the document (maybe in GRB’s penumbra) and subject it to the same analysis that would something that is. It makes no sense to me to worry about what the ratifiers thought when we are acknowledging that they didn’t think of this.

  62. Adam,

    Hey, I missed most of this debate. Let me have my fun.

    Noyam,

    To be honest, while I sympathize with your position, I can’t agree with much of your analysis. The right to marriage constructed in Loving was certainly not contained in the plain meaning of any clause of the Constitution; and even though the contested clauses (like the equal protection clause) are mostly vague and ambiguous and have no real plain meaning, it’s hard to imagine which clause could contain such a right. From an originalist perspective, the equal protection and due process clauses are definitely out. Perhaps the Privileges and Immunities clauses are possibilities, but I would need to see serious historical evidence to support that proposition.

    That said, you are correct that the originalist judge must grapple with precedent and Loving is a longstanding precedent. An originalist is faced with two choices when dealing with nonoriginalist precedents that are woefully flawed: distinguish them or overrule them. While I could imagine Scalia or Thomas overruling Roe or Griswold, it’s harder to see them shoving Loving to the waste side. That leaves the only distinguishing it as a possibility.

    Distinguishing Loving’s fundamental rights basis is fairly straightforward, and Adam and others have done it a number of times in this comment section. Loving created a right to marry, but the concept of marriage in the US and other western countries only contained unions between members of the opposite sex. Even polygamy and miscegenation, while banned, were never denied marriage status. SSM, on the other hand, was never really on the radar screen. This observation is so obvious that the California statute in question in the Supreme Court decision, passed in the late 1800s, did not even contain gender specific language. The same is true of the NY law that was upheld by the Court of Appeals a few years ago. No one seriously even thought that a union between two men or women would ever fall under the definition of marriage.

    Now surely that almost universal understanding has begun to change, and I wish to take no stand on whether marriage should be between a man and a woman. But the fact is that at the time of the founding of the US Constitution it is very likely that the concept of marriage only encompassed opposite sex relationships. If that is true, then even if the Constitution contains a right to marry, that right is inapposite to SSM.

    I am not begging the question here. You believe the right to marry must reach the outer most limits unless constrained by policy (e.g., incest or polygamy). I believe the right must be viewed through the prism of original meaning, and even if that right is necessarily broad, it cannot encompass a relationship that was simply not a marriage at the time of the founding.

    If one is not an originalist, then my analysis is not necessarily relevant. Nonoriginalists are willing to allow rights to morph and evolve to fit contemporary understandings, and I readily admit that marriage today may include SSM. Under that understanding, a court could interpret the Constitution to include a right to SSM. I don’t believe Loving is even remotely dispositive for even nonoriginalists, but such a decision is within the realm of reason. Obviously owing to my originalist predilections, I would disagree, but the decision is not unreasonable. So I would agree with you that a SSM decision would not be activist in the pejorative sense.

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