The Supreme Court of the United States of America heard arguments regarding two laws. It is possible that in June, they could issue a ruling that would invent a new federal right to get a state "marriage" license without a bride or without a groom, often called "gay marriage" or "same-sex marriage".
Less than fifteen years ago, no government in the world had neutered licensing to replace marriage. No President of the United States ever indicated a belief that a marriage exists without a bride or without a groom. President Bill Clinton, Democrat, had signed the federal Defense of Marriage Act into law, which had the support of many Democrats in Congress. Not a single great civil rights leader in history had ever called for a "right" to a marriage license without a bride or without a groom – not Dr. Martin Luther King, Jr., not Susan B. Anthony, not Gandhi, nobody. None of the people who wrote and voted for the Constitution or the Amendments was ever on record as saying marriage was anything other than the uniting of a bride and groom. Running for President in 2008, Obama claimed to believe that marriage is between a man and woman, and he did not say that there was right to a state marriage license without a bride our groom. (He has partially changed his public position since then.) In Loving v. Virginia, which overturned scattered state bans in "interracial" marriage (which actually prevented freedom of association while Proposition 8 protected freedom of association), SCOTUS did not find that a brideless or groomless union was a marriage. In Lawrence v. Texas, which overturned laws against private homosexual sodomy, SCOTUS did not find that brideless or groomless union is a marriage. There are longstanding federal and state restrictions on marriage, including against polygamy and marriages between first cousins, both of which have a long worldwide history. (Some say that same-sex "marriage" should never be compared to polygamy or incest, and I agree – after all, the latter two have been historically and widely accepted as actual marriages.)
When SCOTUS heard the cases, only nine states and Washington, D.C. had neutered their licensing, something that was largely started by judicial activism with only one of those states doing it through a direct vote of the people that was initiated by the people rather than a judge or state legislature.
Most of the remaining states have constitutional amendments or state laws, many of them directly approved by voters, maintaining the bride+groom requirement in their licensing.
Yet here we are, facing the possibility that nine judges could force the neutering of state marriage licenses on all 50 states, even those where the people have recently voted to reaffirm the bride+groom requirement.
How did we get here?
I didn't follow the case involving the federal DOMA as closely as I did the case involving the California Marriage Amendment, which was adopted by voters through Proposition 8.
There was already a California law, signed by Governor Jerry Brown decades ago during an earlier term as Governor, stating the bride+groom requirement. In 2000, Californian voters directly passed Proposition 22, reaffirming this. California lawmakers passed law(s) creating state domestic partnerships in which same-sex couples (these partnerships were denied – discrimination! - to both-sexes couples unless at least one of them was a seasoned citizen of a certain age) would be treated by state and local governments exactly the same as if they were a married couple. Striking down Prop 8 did not give same-sex couples any additional "rights".
Then the Leftist marriage neutering advocates, including people who were sworn to uphold and enforce the law, decided to thumb their nose at the law by "marrying" brideless and groomless couples and then suing for recognition as marriage. That wound its way through the state courts.
Meanwhile, the voters of California decided to strengthen the bride+groom requirement by placing on the ballot a measure what would make it part of the state constitution. As that was heading for the ballot, the California Supreme Court ordered the neutering of the state's marriage licenses. Later that year (2008), California voters voted for Obama AND they adopted Proposition 8 to restore the bride+groom requirement, placing it in the state constitution.. For many months, long-term (and short term, for that matter) same-sex couples could have obtained "marriage" licenses, and thousands did. Snoozers were losers.
Of course, the California Marriage Amendment was challenged in court by marriage neutering advocates, and so it went to the California Supreme Court, then into the federal courts.
You can read all about this at these links to The Opine Editorials, where we covered it as it was happening:
On the 9th Circuit Court of Appeals on Proposition 8
On the Proposition 8 Trial
On the California Marriage Amendment
On Judge Walker - the federal judge who heard the federal trial over Proposition 8/California Marriage Amendment but did not disclose he stood to immediately and personally benefit from the results.)
(Click on the tags at The Opine Editorials and here on this blog for more on these subjects.)
It is possible SCOTUS may leave this matter up to the individual states, or may order states with "same as marriage" domestic partnerships, like California, to neuter their marriage licensing. There could be some other rulings other than a sweeping one.
If SCOTUS instead invents a "right" for brideless or groomless pairings to get a state marriage license regardless the state law, that will establish these can-of-worm precedents (because remember, we’re not talking about personal freedom, private behavior, and freedom of association, but rather demanding a state-issued license):
1) Minorities that are only distinguishable by their voluntary behavior or unverifiable claims about themselves will be specially-protected classes. Some might ask how this is different from protecting religious groups, but freedom of religion is specifically listed in the Constitution. Those who are in the minority in their sex-like practices will now be specially protected classes. What if someone finds it advantageous in a lawsuit to claim they are gay, even though there is no evidence they are actually homosexual? We certainly can't ask for proof, can we?
2) There will be a right to state-issued licenses and those licenses have to be recognized in all states. That should get very interesting when it comes to restrictions placed on the Second Amendment right to bear arms, or driver's licenses for people who refuse to actually take the driving test due to personal characteristics present since birth.
3) The equal protection principle applies not only to individuals, but to pairings (or groups) not similarly situated. If I had a business partnership, I'd sue for the same protections afforded to marriages (for example, not being compelled to testify against each other in court) and nonprofits.
4) Certain different behaviors must be treated by government as though they were the same. (Yes, a woman socially and sexually uniting with a man is behavior demonstrably different than a woman joining with a woman.)
5) Courts/governments have the authority to forcefully redefine organic institutions established long before the existince of those courts/governments.
Here's a basic argument against neutering marriage that is not religion-based.
1) Men and women are different. Even most of the people who try to deny this demonstrate that they understand this to be true. After all, if men and women were not different, all, or at least three, of the terms in "LGBT" would have no meaning.
2) The pairing of a man and a woman is different than the pairing of two men or two women. It is the only kind of pairing that is able to naturally produce new citizens (who, unlike the adults, do not consent to the relationship), even if not all do. This alone is enough to give the state more interest in the pairing of a man and a woman.
3) Men and women are different in personal relationships. If that difference matters enough to someone in picking a lover, how can it not matter when it comes to the parent-child relationship?
4) State licensing of bride+groom pairings provides children with a role model, guardian, and bonding partner from each of the two sexes that comprise all of society, legally bound to each other as well as the children; generally, this is good for children.
5) It is Constitutional, moral, common, and necessary to treat different kinds of relationships differently. Since all that is needed to enforce this requirement for a STATE-ISSUED license is a pair of STATE-ISSUED birth certificates, it can be done objectively and with impartiality to sexual orientation and without violating anyone's privacy.
6) One need not believe homosexual behavior, relationships, or people to be harmful, sinful, or inferior to accept any or all of #1-5. Indeed, there are people who identify as LBGT who agree with this argument.
Although marriage neutering advocates equate their campaign to civil rights for African-Americans, the comparison is insulting. Homosexual people certainly can't be described as a powerless minority akin to how African-Americans were 50-60 years ago, given how many already serve in elected and appointed positions at all levels of government, how they are treated throughout academia, their overrepresentation and positive portrayals in media, their socioeconomic status, widespread support by business including major corporations, so on and so forth. Unlike African-Americans, homosexual people were not taken from their homeland by force, systematically enslaved and denied status as human beings, systematically segregated by force of law, tortured and lynched by the thousands in festive events attended in broad daylight by entire towns (including children), denied their right to vote, etc.
Even so, heterosexuals would have just as much access to licensing a same-sex union as "marriage" as homosexual people, so how can it be about helping a suspect class?
Marriage neutering advocates are claiming they have unstoppable, growing momentum, and a clear majority of popular support with inevitable victory among voters. How can that be if they are a powerless minority subject to widespread, systematic animus? Which is it? Californians broadly supported homosexual people having the same rights as everyone else and pet legislative causes, but at the same time, voted to affirm the bride+groom requirement.
Clearly, we are talking about treating different voluntary behaviors differently. This is not the same thing as simply being able to look at someone and know they are female, or black, or an Orthodox Jew. We are told over and over again that we can't know whether someone is heterosexual or homosexual just be looking at them.
Many people who support retaining the bride+groom requirement in state marriage licensing have no animus for homosexual people or homosexual behavior. Some of them identify as LGBT themselves.
Other people who one claimed a gay or lesbian identity now live as heterosexual or claim to be heterosexual. I’ve never seen an African-American become a white guy. This is apples and oranges.
If SCOTUS does invent that new right, it will not be the end of what the fascists behind the marriage neutering movement will do. It will just be the beginning. Nobody will be allowed to hold up marriage as a bride+groom institution, such as in educational lesson plans. Other limitations on marriage licensing will be attacked, and marriage may no longer be recognized at all by government. Churches and synagogues who believe that marriage unites a bride and groom will be attacked. We’ve already seen indications of this before. Individuals will not be immune, either.
Will SCOTUS uphold the rights of California's voters? Or will it set dangerous new precedents? Do the people have a government, or are we all property of the government?
Less than fifteen years ago, no government in the world had neutered licensing to replace marriage. No President of the United States ever indicated a belief that a marriage exists without a bride or without a groom. President Bill Clinton, Democrat, had signed the federal Defense of Marriage Act into law, which had the support of many Democrats in Congress. Not a single great civil rights leader in history had ever called for a "right" to a marriage license without a bride or without a groom – not Dr. Martin Luther King, Jr., not Susan B. Anthony, not Gandhi, nobody. None of the people who wrote and voted for the Constitution or the Amendments was ever on record as saying marriage was anything other than the uniting of a bride and groom. Running for President in 2008, Obama claimed to believe that marriage is between a man and woman, and he did not say that there was right to a state marriage license without a bride our groom. (He has partially changed his public position since then.) In Loving v. Virginia, which overturned scattered state bans in "interracial" marriage (which actually prevented freedom of association while Proposition 8 protected freedom of association), SCOTUS did not find that a brideless or groomless union was a marriage. In Lawrence v. Texas, which overturned laws against private homosexual sodomy, SCOTUS did not find that brideless or groomless union is a marriage. There are longstanding federal and state restrictions on marriage, including against polygamy and marriages between first cousins, both of which have a long worldwide history. (Some say that same-sex "marriage" should never be compared to polygamy or incest, and I agree – after all, the latter two have been historically and widely accepted as actual marriages.)
When SCOTUS heard the cases, only nine states and Washington, D.C. had neutered their licensing, something that was largely started by judicial activism with only one of those states doing it through a direct vote of the people that was initiated by the people rather than a judge or state legislature.
Most of the remaining states have constitutional amendments or state laws, many of them directly approved by voters, maintaining the bride+groom requirement in their licensing.
Yet here we are, facing the possibility that nine judges could force the neutering of state marriage licenses on all 50 states, even those where the people have recently voted to reaffirm the bride+groom requirement.
How did we get here?
I didn't follow the case involving the federal DOMA as closely as I did the case involving the California Marriage Amendment, which was adopted by voters through Proposition 8.
There was already a California law, signed by Governor Jerry Brown decades ago during an earlier term as Governor, stating the bride+groom requirement. In 2000, Californian voters directly passed Proposition 22, reaffirming this. California lawmakers passed law(s) creating state domestic partnerships in which same-sex couples (these partnerships were denied – discrimination! - to both-sexes couples unless at least one of them was a seasoned citizen of a certain age) would be treated by state and local governments exactly the same as if they were a married couple. Striking down Prop 8 did not give same-sex couples any additional "rights".
Then the Leftist marriage neutering advocates, including people who were sworn to uphold and enforce the law, decided to thumb their nose at the law by "marrying" brideless and groomless couples and then suing for recognition as marriage. That wound its way through the state courts.
Meanwhile, the voters of California decided to strengthen the bride+groom requirement by placing on the ballot a measure what would make it part of the state constitution. As that was heading for the ballot, the California Supreme Court ordered the neutering of the state's marriage licenses. Later that year (2008), California voters voted for Obama AND they adopted Proposition 8 to restore the bride+groom requirement, placing it in the state constitution.. For many months, long-term (and short term, for that matter) same-sex couples could have obtained "marriage" licenses, and thousands did. Snoozers were losers.
Of course, the California Marriage Amendment was challenged in court by marriage neutering advocates, and so it went to the California Supreme Court, then into the federal courts.
You can read all about this at these links to The Opine Editorials, where we covered it as it was happening:
On the 9th Circuit Court of Appeals on Proposition 8
On the Proposition 8 Trial
On the California Marriage Amendment
On Judge Walker - the federal judge who heard the federal trial over Proposition 8/California Marriage Amendment but did not disclose he stood to immediately and personally benefit from the results.)
(Click on the tags at The Opine Editorials and here on this blog for more on these subjects.)
It is possible SCOTUS may leave this matter up to the individual states, or may order states with "same as marriage" domestic partnerships, like California, to neuter their marriage licensing. There could be some other rulings other than a sweeping one.
If SCOTUS instead invents a "right" for brideless or groomless pairings to get a state marriage license regardless the state law, that will establish these can-of-worm precedents (because remember, we’re not talking about personal freedom, private behavior, and freedom of association, but rather demanding a state-issued license):
1) Minorities that are only distinguishable by their voluntary behavior or unverifiable claims about themselves will be specially-protected classes. Some might ask how this is different from protecting religious groups, but freedom of religion is specifically listed in the Constitution. Those who are in the minority in their sex-like practices will now be specially protected classes. What if someone finds it advantageous in a lawsuit to claim they are gay, even though there is no evidence they are actually homosexual? We certainly can't ask for proof, can we?
2) There will be a right to state-issued licenses and those licenses have to be recognized in all states. That should get very interesting when it comes to restrictions placed on the Second Amendment right to bear arms, or driver's licenses for people who refuse to actually take the driving test due to personal characteristics present since birth.
3) The equal protection principle applies not only to individuals, but to pairings (or groups) not similarly situated. If I had a business partnership, I'd sue for the same protections afforded to marriages (for example, not being compelled to testify against each other in court) and nonprofits.
4) Certain different behaviors must be treated by government as though they were the same. (Yes, a woman socially and sexually uniting with a man is behavior demonstrably different than a woman joining with a woman.)
5) Courts/governments have the authority to forcefully redefine organic institutions established long before the existince of those courts/governments.
Here's a basic argument against neutering marriage that is not religion-based.
1) Men and women are different. Even most of the people who try to deny this demonstrate that they understand this to be true. After all, if men and women were not different, all, or at least three, of the terms in "LGBT" would have no meaning.
2) The pairing of a man and a woman is different than the pairing of two men or two women. It is the only kind of pairing that is able to naturally produce new citizens (who, unlike the adults, do not consent to the relationship), even if not all do. This alone is enough to give the state more interest in the pairing of a man and a woman.
3) Men and women are different in personal relationships. If that difference matters enough to someone in picking a lover, how can it not matter when it comes to the parent-child relationship?
4) State licensing of bride+groom pairings provides children with a role model, guardian, and bonding partner from each of the two sexes that comprise all of society, legally bound to each other as well as the children; generally, this is good for children.
5) It is Constitutional, moral, common, and necessary to treat different kinds of relationships differently. Since all that is needed to enforce this requirement for a STATE-ISSUED license is a pair of STATE-ISSUED birth certificates, it can be done objectively and with impartiality to sexual orientation and without violating anyone's privacy.
6) One need not believe homosexual behavior, relationships, or people to be harmful, sinful, or inferior to accept any or all of #1-5. Indeed, there are people who identify as LBGT who agree with this argument.
Although marriage neutering advocates equate their campaign to civil rights for African-Americans, the comparison is insulting. Homosexual people certainly can't be described as a powerless minority akin to how African-Americans were 50-60 years ago, given how many already serve in elected and appointed positions at all levels of government, how they are treated throughout academia, their overrepresentation and positive portrayals in media, their socioeconomic status, widespread support by business including major corporations, so on and so forth. Unlike African-Americans, homosexual people were not taken from their homeland by force, systematically enslaved and denied status as human beings, systematically segregated by force of law, tortured and lynched by the thousands in festive events attended in broad daylight by entire towns (including children), denied their right to vote, etc.
Even so, heterosexuals would have just as much access to licensing a same-sex union as "marriage" as homosexual people, so how can it be about helping a suspect class?
Marriage neutering advocates are claiming they have unstoppable, growing momentum, and a clear majority of popular support with inevitable victory among voters. How can that be if they are a powerless minority subject to widespread, systematic animus? Which is it? Californians broadly supported homosexual people having the same rights as everyone else and pet legislative causes, but at the same time, voted to affirm the bride+groom requirement.
Clearly, we are talking about treating different voluntary behaviors differently. This is not the same thing as simply being able to look at someone and know they are female, or black, or an Orthodox Jew. We are told over and over again that we can't know whether someone is heterosexual or homosexual just be looking at them.
Many people who support retaining the bride+groom requirement in state marriage licensing have no animus for homosexual people or homosexual behavior. Some of them identify as LGBT themselves.
Other people who one claimed a gay or lesbian identity now live as heterosexual or claim to be heterosexual. I’ve never seen an African-American become a white guy. This is apples and oranges.
If SCOTUS does invent that new right, it will not be the end of what the fascists behind the marriage neutering movement will do. It will just be the beginning. Nobody will be allowed to hold up marriage as a bride+groom institution, such as in educational lesson plans. Other limitations on marriage licensing will be attacked, and marriage may no longer be recognized at all by government. Churches and synagogues who believe that marriage unites a bride and groom will be attacked. We’ve already seen indications of this before. Individuals will not be immune, either.
Will SCOTUS uphold the rights of California's voters? Or will it set dangerous new precedents? Do the people have a government, or are we all property of the government?
The Supreme Court does not invent rights. It interprets the Constitution (among other things) to acknowledge the rights we've always had. More specifically, it examines whether enacted laws are in conflict with the rights we've always had.
ReplyDeleteI think the likely outcome of these two cases will be:
1) SCOTUS will uphold the findings of the lower courts re: Prop 8, restoring to the people of California the rights they help prior to this unconstitutional vote. SCOTUS will find, as the lower courts did, that California voters never had the right to revoke the rights of others through the force of the ballot box.
2) SCOTUS will overturn DOMA, thus leaving the states to decide what qualifies as marriage AND permitting the federal government to treat those relationships as such.
The Supreme Court shouldn't invent rights, but sometimes it does. The rights movements of the past usually involved removing laws that deprived some of existing rights. For example, the right to vote was not a new right when women got the vote. Men had that right, women were deprived of it. Nobody has previously had a "right" to get a marriage license with someone of the same sex - heterosexuals have not.
DeleteHeterosexuals have the right to get a marriage license with a compatible individual of the same sexual orientation. Homosexuals have ben deprived of that right.
DeleteThere is, in fact, no criteria based on orientation. That means people have the right to get a licence with someone of the opposite orientation too.
DeleteBesides, the right to get married is not the right to be in a romance, or the right to have that romance ratified by the state. Stay out of the bedrooms, Dan.
And where in the Constitution is such a right specified, SearchCz? Besides, two people of the same sex are not biologically compatible.
ReplyDeleteSee: equal protection clause for your Constitutional question.
DeleteAlso: I don't think we want the gov't determining who is or isn't compatible enough for marriage.
The equal protection clause doesn't state that marriage needs to be redefined.
DeleteKeep looking, Dan.
Serving on a jury wasn't "redefined" when blacks gained the right to do so. This decision was based on the equal protection clause of the 14th amendment and it allowed people to serve who had previously been excluded. No "redefining" necessary.
Delete_Serving on a jury wasn't "redefined" when blacks gained the right to do so._
DeleteWhich simply makes that a bad example of what is happening here.
Because when "man and woman" is removed from the definition of marriage, it is redefined.
Besides, the California Supreme Court itself upheld Proposition 8 by a 6 to 1 vote. This is the same court that had invented a "right" to SS"M" in the first place.
ReplyDeleteAnd two higher courts have heard challenges and ruled otherwise. We'll likely hear from SCOTUS within a month on this matter.
DeleteActually, the post you are replying to has even more interesting sections than you do.
DeleteThe Califoria and Federal laws differ on equal protection. California has, in fact, a much more strict equal protection clause which specifically mentions homosexual orientation.
The Federal clause does not, and the Supreme Court already ruled there is no question about marriage and equal protection.
So, in your own way Dan, you've simply pointed out how arbitrary and even errant those other courts were.
Lawn: "the post you are replying to has even more interesting sections than you do."
DeleteAnd what "sections" do I have, Lawn?
Lawn: "the Supreme Court already ruled there is no question about marriage and equal protection"
A citation would be great. I think you might mean Baker v Nelson?
Also, note that the Supreme Court once voted to uphold Jim Crow laws, but eventually ruled them unconstitutional. I think it would be a mistake to call such a ruling arbitrary ... reasonable people consider all the facts in evidence when rendering judgment.
And re: Baker v. Nelson - that was a 1972 ruling, and the landscape has changed. Same-sex marriage, which was unheard of at the time, is now legal in twelve states plus D.C. That changes things, so a different judgement now needn't be seen as arbitrary.
Typical Search...
Delete_the Supreme Court once voted to uphold Jim Crow laws_
It also once upheld property rights.
_ I think it would be a mistake to call such a ruling arbitrary_
The basis was a comparison between California Equality Protection and Federal, and the fact that marriage is just fine with California's explicit mention of homosexual orientation, yet somehow not with the Federal level, shows a contradiction which exposes simple arbitrary judgement.
The fact that a federal judge decided to overturn for himself the Supreme Court precedent to do so, magnifies the folly. Even if there was a change, that is something that he does not have the option of disregarding.
These won't be the same justices who declined to hear Baker v. Neslon, Lawn.
DeleteOn Lawn: "It also once upheld property rights."
DeleteAnd what does that have to do with this discussion? Do you have a point or was this a spurious eruption?
_These won't be the same justices who declined to hear Baker v. Neslon, Lawn._
ReplyDeleteWow, that is all you could come up with?
_And what does that have to do with this discussion? Do you have a point or was this a spurious eruption?_
I guess so.