Supreme Court begins hearing on gay marriage

Today the Supreme Court will hear arguments on  California’s Proposition 8, in which the people of the state voted not to allow gay marriage.  On Wednesday, the court will hear a related case on whether the Defense of Marriage Act, in which Congress defined marriage as being between one man and one woman, is Constitutional.

I can envision the progressives on the court voting against the Defense of Marriage Act on equality grounds and the conservatives voting against it on federalism grounds, that Congress infringed on the right of states to make laws against marriage.  Then again, if the court throws out Proposition 8, that would prevent states from having the option to not have gay marriage.  That ruling would have consequences for every state in the union.

How do you think the court will rule on this?  (The decision won’t be announced for several months.)

From Liz Goodwin at Yahoo News:

The Supreme Court will hear arguments this week in two cases that have the potential to transform American society and the status of gays and lesbians in it.

In oral arguments on Tuesday morning the 9 justices will consider whether California’s voter approved ban on gay marriage, Proposition 8, unfairly discriminates against gay people. On Wednesday, they’ll consider whether the 1996 Defense of Marriage Act barring the U.S. government from recognizing same-sex marriages, even in states that allow them, constitutes federal overreach.

Both cases could change the everyday lives of gay people and transform the larger, decades old gay rights movement, which has pursued both a court-based and political strategy to gain more legal protections for gay people. But the California Prop 8 case in particular, called Perry v. Hollingsworth, is considered by both pro and anti-gay marriage camps to be the most important, and potentially sweeping, of the two.

In Perry, there’s a possibility that the court could declare that gays and lesbians have a fundamental right to marriage just as heterosexual couples do. Such a decision would send a message from the court that both same sex and heterosexual relationships must be treated equally in the eyes of the law.

“There aren’t many Supreme Court decisions that have the potential to be as transformative,” said Erwin Chemerinsky, founding dean of the University of California Irvine School of Law.

via Supreme Court gay marriage cases could set stage for dramatic societal changes | The Ticket – Yahoo! News.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Jon

    In Perry, there’s a possibility that the court could declare that gays and lesbians have a fundamental right to marriage just as heterosexual couples do.

    No one is being denied rights. Practically anyone can get a license to marry someone of the opposite sex.

    Hillary Clinton was right when she said that, “marriage is the building block of society.” That’s because only M+F=C, i.e., can reproduce.

    Any other paired relationship, M+M or F+F, is fundamentally, biologically, naturally closed to the option of producing C. If the pair want C, they have to procure C via a third party to their (?)union.

    That’s the way it is.

  • tODD

    Jon (@1), so any marriage that is “fundamentally, biologically, naturally closed to the option of producing [children]” should be prohibited? Is that what you’re saying?

  • Steve Bauer

    tODD, I don’t think Jon said anything about prohibiting anything. He said, “Any other paired relationship, M+M or F+F, is fundamentally, biologically, naturally closed to the option of producing C” is not marriage. I think what he is saying is that there is no more “right” to marriage than there is a “right” to have blue eyes. His is certainly a better definition than saying “anything” is marriage. It is another thing entirely that the state/society decdies to give certain benefits to marriages. If it decides to give those benefits to other pairings/relationships, that action of the state does not make thsoe other relationships “marriages”. We’re talking apples and….er, eggs, here.

  • Jon

    Todd,

    Of course you know and have advocated here the argument that male/female pairs can and do contract marriage without ever desiring or expecting to have kids. They may be fundamentally opposed to the prospect of it. Maybe they are opposed to ever even cosummating their marriage. Or, maybe because they are past child bearing years, or impotent, or sterile, or unbeknownst to them had some physiological (or contracted) infertility problem, whatever. But even so, only their type of male-female pair have the fundamental (or rudimentary?) pre-requisite capability of producing–through their physical, biological, natural union of their gammetes–offspring. Theirs is the only natural “building block of society” with that status.

    Same sex pairs lack that fundamental (or rudimentary), capability on a natural, biological level. Left to its own devices, their union(?) fundamentally produces nothing and would die off; only with the aid of at least one third party can they procure offspring.

    Ultimately, the pro-homosex lobby’s argument is not with fuddy-duddy bigots like me. Theirs is a struggle against nature itself and defiance of the Creator who ordered it and declared it all very good. No declaration establishing a faux redefinition of the natural ordered marraige as the building block of society will ever achieve for same-sex pairs the equality and status they demand.

    That’s the way it is.

  • #4 Kitty

    Steve Bauer,

    I think what he is saying is that there is no more “right” to marriage than there is a “right” to have blue eyes.

    Of course there is. Here are 14 cases where the Supreme Court ruled that marriage is a fundamental right.

  • tODD

    Sorry, Jon, but to go from arguing (@1) that marriage is only legitimately between those “fundamentally, biologically, naturally” able to produce children, and then to pivot and argue (@4) that it also applies to any “type of male-female pair”, regardless of their ability to produce children, is kind of weak. Does the ability to have children matter or not? Your argument suggests that it doesn’t … unless it does.

  • Jon

    Todd,
    The male-female prerequisite has been applied to marriage from the dawn of civilization, precisely because only that fundamental status has the ability to produce offspring. Of course planned childlessness, or barenness of couples has always been a factor (a part of The Fall, I suppose.)
    But society has from the beginning also recognized that the best, most conducive, relationship that forms the nucleus of society through the production and nurturing of offspring is the naturally-ordered man-woman marriage.
    I believe that once society began the wholesale shift away from reproductive activities being morally confined within the bounds of marriage, with the sexual revolution that strives to make it a sterile recreational activity, then marriage was bound to shift towards a social redefinition recognizing and celebrating a person’s emotional feelings about another person, instead of being about preserving the orderliness of the natural consequences of such a union between males and females and how best for that activity to serve as a building block for society, the best place to produce and raise children.
    Society used to punish adultery as a crime, same with sodomy, and time was it was shameful to be a bastard child, because it was against the natural order and orderliness for the good of society.

    But now, after all this time in the dark ages, we finally know better. Marriage will become a social registry for feelings. We have evolved.

  • Jon

    @5, 4 Kitty,

    In all those cases, what was the definition of marriage, and who had the right to marry? That is what is at stake, whether the court has the right to fundamentally redefine what marriage is, or whether that is a right left to the people.

    Whether a marriage is childless, either by choice or accident, like Todd likes to bring up, is beside the point. The point of natural marriage has always been for society, that’s the best place to beget and nuture children. That’s been society’s experience.

    Now, all of a sudden, we think we know better than that.

  • #4 Kitty

    @Jon #8

    In all those cases, what was the definition of marriage, and who had the right to marry?

    That doesn’t affect the point I was trying to make, which was that marriage is actually a right.
    However, in many of those cases “marriage” was defined as one man and one woman of the same “race”.
    Cases like Loving vs Virginia fundamentally changed this definition.

    That is what is at stake, whether the court has the right to fundamentally redefine what marriage is, or whether that is a right left to the people.

    Are you saying for example, that each state should define marriage?

    The point of natural marriage has always been for society, that’s the best place to beget and nuture children. That’s been society’s experience.

    I’m not sure you’ve explained how gay marriage is a detriment to society. It seems to me that from your statement above divorce is a worse detriment than gay marriage. If natural marriage is “the best place to beget and nurture children” then divorce is it’s natural enemy not a loving, committed couple who just happen to be of the same sex.

  • Grace
  • Grace
  • Grace

    Kitty @ 9

    “I’m not sure you’ve explained how gay marriage is a detriment to society.”

    It’s a “detriment” to our Public schools to name just one. Homosexual faux marriages will enable teachers to unleach, and teach their sexual orientation to our children. In many schools it has already occured. But once same sex marriage becomes the law, it will empower homosexuals to teach that which is against God’s Word.

  • fjsteve

    It’s always been confusing to me why people want to compare same-sex marriage with the worst examples of opposite-sex marriage in the attempt legitimize it. Surely divorce is legal and just as surely divorce is a bad situation that requires special legal, tax, and child support considerations. It’s been seen historically as a necessary evil in order to escape abusive situations. Even no-fault divorce came about as a remedy for what became the common occurrence of fraud and perjury in divorce testimonies. Are we also saying that same-sex marriage is a necessary evil required to remedy a large scale societal ill?

  • Rick Ritchie

    I thought Proposition 8 was wrong, because voters should not be voting about a matter of rights. Rights are something that we either have or do not have. Hence, I think a court is where that should be determined. That said, I’ll probably be discovering my view of gay marriage when the Supreme Court has ruled. Not that whoever wins will be right, but better arguments than we generally hear will be aired. I have some sympathy for the traditionalist position, except that I think that marriage had evolved so much in the past two centuries, that it isn’t really what it used to be. I also no longer think there has to be an exact match between civil law and the way God sees things. Jesus tells us that the marriage laws in Israel allowed divorce because of the hardness of people’s hearts (Matthew 19:8). But he also says that such divorces involve adultery (Matthew 19:9, Matthew 5:31). So even a God-given civil law allowed adultery. If that is so, our civil law can be somewhat pragmatic, allowing things that are not the way God intended for life to be. Whether or not that is prudent here, or is the best understanding of the Constitution is another question.

    There’s probably a 70 percent chance that what my position ends up being will be whatever Antonin Scalia has to say on the subject.

  • Grace

    The issue of fuax homosexual marriages has gained momentum for several reasons, however one has certainly prevailed. Realitives of those who are homosexual, find themselves all to often in a quandry – should they accept the chosen lifestyle of their brother, cousin, father, mother, sister – or should they deny them access to their family gatherings, etc. If they are strong Believers in Jesus Christ, they might exclude the relationship, and their family member, on the grounds of Scripture, OR, they might skip what the Word of God states, and accept the relationship and welcome the sinful situation into their homes, etc. This I believe has been the turning point for many a weak Christian, who wanted to make peace, at the price of disobeying God. The homosexual believes that a faux marriage will settle the problem, making it respectable, but it doesn’t work.

    9 wrote to you in my letter to stop associating with people who are sexually immoral-
    10 not at all meaning the people of this world who are immoral, greedy, robbers, or idolaters. In that case you would have to leave this world.
    11 But now I am writing to you to stop associating with any so-called brother if he is sexually immoral, greedy, an idolater, a slanderer, a drunk, or a robber. You must even stop eating with someone like that.
    12 After all, is it my business to judge outsiders? You are to judge those who are in the community, aren’t you?
    13 God will judge out­siders “Expell that wicked man.”
    1 Corinthians 5

    IF homosexual marriage is made law across the land, we as Born Again Christians will have to make a decision for truth, no matter who it is in our family, group of old friends, etc., who is homosexual. Life is full of hard choices, but for a real Christian Believer who knows the truth, there is only ONE choice.

  • DonS

    Rick @ 14 says that it is the job of the courts to determine our rights. I fundamentally disagree. First, there are two kinds of rights — constitutional rights and statutory rights. As to the latter, clearly it is the job of legislators or the people to determine those. As to the former, it was the job of the Founders, as appointed by the people at that time, to establish our initial federal constitution and Bill of Rights, and then to the people since then to work through the amendment process to change that constitution. In California, the state constitution may be amended by initiative. Rick (didn’t you used to be “Rich”?) may not like that, but that is our constitutional system in California.

    The courts’ job, on the other hand, as established by the constitution, is to INTERPRET it, not to make new rights. Our rights are supposed to be inalienable, unchangeable by man absent recourse through the constitutional amendment process. However, far too many of us have exchanged that blessing in favor of relying on appointed judges, typically of a political bent, to tell us what rights we have, dependent in large measure on what is politically popular.

    My question — how do we protect the rights of minorities if we insist our courts do what is popular? How do we know our rights today will remain our rights tomorrow? What if we (Christians) become unpopular, as is clearly beginning to occur? Will we lose our rights to freedom of religion, as our current administration has insisted?

  • DonS

    Now, to the issue of the post:

    1. Proposition 8 — there is no federalist argument that would not overturn the 9th Circuit’s Prop. 8 decision. If the matter of marriage is for the states to decide, California did so, and its supreme court affirmed that decision. The federal court then intervened to overturn California’s decision. Some are saying that the Court will rule on the basis that the Prop. 8 proponents did not have standing to defend the ballot measure, because the governor and attorney general refused to, and thus will dismiss the appeal without decision, resulting in the lower court decision being final. That would be extremely anti-federalist, however, because the 9th Circuit specifically referred the question of standing to the California Supreme Court, which found standing under California law. To overturn that ruling would be to stomp on states rights, and to put in question the entire California initiative process, because government leaders could simply invalidate any proposition that passed by failing to defend it from lawsuits. I don’t think the Court will do that. If they do find lack of standing, they will vacate the entire federal lawsuit, finding that there was no case or controversy before any of the federal courts, and thus no federal jurisdiction at all.

    Others argue that the Court can avoid the problem by narrowly adopting the 9th Circuit’s holding, which applies only to California. However, that would be nuts, because the holding is nuts. The 9th Circuit found that California couldn’t re-impose a traditional definition for marriage after its court had overturned California’s prior marriage statute (while Proposition 8 was already pending for vote), because that would be taking away rights from people. However, there is no basis for such a ruling in case law, and upholding such “logic” would invite all kinds of mischief on the part of public officials in the future. I don’t think the Court will want to open that can of worms.

    2. DOMA — the federalism arguments against DOMA are laughable. The federal government has its sphere and state governments have theirs. There is no legal precedent for holding that the federal government does not have the right to define terms used in federal statutes for the purpose of administering those statutes. The definitions in DOMA do not apply to the states, for state law purposes, hence no federalism issue.

    While the Court may be able to duck a direct decision on Proposition 8, by ruling on standing, or narrowly affirming the 9th Circuit’s holding, there is no such out for DOMA. And since they have to decide DOMA on the merits, I think they will also decide Proposition 8 on the merits. We may know more after tomorrow’s oral arguments on the DOMA cases.

  • Kirk

    @Grace

    You do realize that 1 Corinthians 5 refers to people within the church, right. Meaning, we are commanded not to consider thesexually immoral our brother/sisters in Christ, not that we are to never associate with them under any circumstance. See verse 10. (Note that the NIV, which you quoted, isn’t particularly clear on this point. In other translations, like the KJV and ESV, “the immoral” of verse 10 are specifically referred to as “the sexually immoral.”

  • Kirk

    Meaning, you can still be friends with the gays. I hope this doesn’t make any previous disownings awkward for you…

  • Grace

    Kirk @18 and @19

    You do realize that 1 Corinthians 5 refers to people within the church, right.”

    If you had read my post @ 15 you would have noticed that verse 12 was bolded regarding 1 Corinthians 5:12.

    12 After all, is it my business to judge outsiders? You are to judge those who are in the community, aren’t you?

    As for your post @ 19:

    “Meaning, you can still be friends with the gays. I hope this doesn’t make any previous disownings awkward for you”

    Friends in what way? A passage of Scripture which is avoided all to often is this:

    14 And whosoever shall not receive you, nor hear your words, when ye depart out of that house or city, shake off the dust of your feet.

    15 Verily I say unto you, It shall be more tolerable for the land of Sodom and Gomorrha in the day of judgment, than for that city.

    16 Behold, I send you forth as sheep in the midst of wolves: be ye therefore wise as serpents, and harmless as doves.
    Matthew 10

    I/we, meaning my husband and I have had friends who are homosexuals – however that doesn’t mean we are close friends, or that I would invite them to our home, unless they were open to the Gospel of Jesus Christ. If they are only interested in arguing, to convince me/us that homosexuality is not a sin, there is no reason to continue further, any sort of association. That doesn’t mean I am rude to them, I just don’t associate any longer with those who are steadfast in their beliefs of homosexuality.

  • Grace

    Skeptical Justices Question Lawyer Defending Prop 8

    Updated March 26, 2013
    By EVAN PEREZ, BRENT KENDALL and JESS BRAVIN
    WASHINGTON—“The Supreme Court on Tuesday wrestled inconclusively with California’s ban on gay marriage, as Justice Anthony Kennedy expressed dissatisfaction with several of the court’s options and Chief Justice John Roberts said he was worried that gay-marriage proponents were trying to move too quickly.

    When the 80 minutes of argument concluded, it was hard to predict how the justices would rule on the issue. Chief Justice Roberts asked several questions about whether the backers of California’s Proposition 8 had the right to be in court at all, because the state declined to defend the gay-marriage ban.

    The court’s four liberal justices asked questions suggesting sympathy for the gay-marriage cause, but across the ideological spectrum, justices showed reluctance to issue a ruling establishing an immediate constitutional right to gay marriage across the 50 states.

    READ the REST:
    http://online.wsj.com/article/SB10001424127887324105204578383130230471720.html?mod=WSJ_hpp_LEFTTopStories

  • sg

    Gay marriage is a trial balloon to see how stupid and gullible the public are. If the majority of people can be convinced of something that stupid, then the majority can be convinced of anything.

  • fws

    fact:
    the argument presented is that children do better with their birth parents. that was the ONLY practical pragmatic argument presented.

    fact:
    there will be no more, and no less children being raised with birth parents, now , or in the future, if gay marriage is made legal.

  • fws

    prediction:

    the word marriage, as with the words love, commitment, etc will continue to mean, as they Always have, diferente things to diferente people.

    The legal meaning of marriage may change. or not.

    Life will go on as before. The marriage of heterosexuals will not be affected not even in the least.

  • fws

    sg @ 22

    marriage binds two people to commit to monogamy. this is good to cut down on transmittible diseases and for any children involved.
    Marriage avoids clogging the courts with end of death and property issues.
    marriage provides for caregivers for the sick and terminally ill which saves lots of Money for the rest of us.

    why is it you think people are stupid and gullible who see such benefits also for gays being married?

  • Rick Ritchie

    Don@16. There are not only constitutional rights and statutory rights. There are also natural rights, which trump either. Further, statutes that violate constitutional rights are invalid no matter how many people vote for them.

    What do you mean where you say, “Our rights are supposed to be inalienable, unchangeable by man absent recourse through the constitutional amendment process.”? Do you mean our constitutional rights are inalienable? The language of inalienable rights is from the Declaration of Independence, and is rooted in a belief in natural rights. We have certain inalienable natural rights. “Inalienable” means we could not have delegated the exercise of those rights to someone else. If a constitutional amendment could take them away, then they would be, by definition, “alienable.” That is, the people by a process would have alienated them, or given them to another in the making of an amendment. When Jefferson says that “among these are life, liberty, and the pursuit of happiness,” he means that he has not enumerated all of them. Neither is the Bill of Rights the full extent of our rights, for the rights Jefferson spoke of pre-existed our Constitution. (My views on this subject are stated well by Randy Barnett in Restoring the Lost Constitution: The Presumption of Liberty. My most likely disagreements with Scalia would be where he disagrees with this outlook.)

    Our state constitution may be amended by initiative. But many initiatives have later been declared unconstitutional because they ran afoul of other more basic law.

    When it comes to marriage, the voters would obviously not have had the right to exclude, say, blue-eyed people or people of a certain nationality from being married. To create privileges that do not apply to all would deny people the equal protection of the law. Now with gay marriage we have a question of whether marriage is such that certain people are by nature excluded from it, or whether it has become such a package of privileges that those excluded from it are not equally protected by the law. It might even be that different states have such different definitions of marriage that it would be right for one state to exclude a group from it, and wrong for another to do the same.

    If we argue that marriage has a universal definition, then we are probably taking a view that matches a natural rights view. In which case, people should not be voting on each others’ rights. But if we argue that marriage is the creation of a state which can define it any way it wishes, and that the voters can decide, then the voters can take away your right to marry, or approve of all sorts of bizarre forms of marriage. The results of that may in the short term work in the conservative direction. But it won’t stay that way for long.

    I have always gone by Rick.

  • Grace

    “the word marriage, as with the words love, commitment, etc will continue to mean, as they Always have, diferente things to diferente people.”

    Of course, if they ignore Scripture.

    Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.

    Genesis 2:24

    There is no mention of a man cleving onto another man. A marriage is between a man and a woman.

    The passage in Romans 1 sums up, that of an individual who distorts the Word of God, regarding homosexuality.

    27 And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet.

    28 And even as they did not like to retain God in their knowledge, God gave them over to a reprobate mind, to do those things which are not convenient;
    Romans 1

  • Grace
  • Grace

     ‏

    Both of the above definitions @ 28 taken from Strong’s Greek Dictionary.

     ‏

  • DonS

    Rick @ 26: What I meant is that our Constitutional rights, as set forth in the Bill of Rights, are derived from our natural rights bestowed on us by the Creator. They transcend government — government guarantees their enforcement against itself. They are negative rights — guarantees that the government will not infringe our God-given rights to life, liberty, and the pursuit of happiness. This is why it is so hard to amend the U.S. Constitution, yet we have morphed into a society that permits its free amendment by 9 unelected jurists. And a citizenry that insists on waiting for the courts to tell it what its rights are.

    Yes, I definitely agree that our natural rights transcend the Bill of Rights — they are merely a checklist of the ways in which the government will be prohibited from undue interference with those natural rights. But without that checklist, our natural rights exist only with the permission of government — a precarious circumstance, to say the least, as proven by practically the whole of human history.

    As for the state constitution, it exists within the framework and parameters of the federal constitution. It can only guarantee additional rights, never fewer than those guaranteed by the federal constitution, which is preemptive. So, the fact that it can be amended by initiative in California isn’t really a big deal, as you point out.

    When it comes to marriage, the voters would obviously not have had the right to exclude, say, blue-eyed people or people of a certain nationality from being married. To create privileges that do not apply to all would deny people the equal protection of the law. Now with gay marriage we have a question of whether marriage is such that certain people are by nature excluded from it, or whether it has become such a package of privileges that those excluded from it are not equally protected by the law. It might even be that different states have such different definitions of marriage that it would be right for one state to exclude a group from it, and wrong for another to do the same.

    I agree that the people aren’t free to impose laws that discriminate against protected classes of people, i.e. by race or faith. But that is not the issue here. No one is being prevented from marrying, or doing anything they want to do in terms of living arrangements. This is solely about whether society is permitted to impose (or continue to impose) a legally recognized civil marital status for men and women only. Or, must they be forced to recognize, and thus, in some respect, sanction that which has historically been regarded as a deviant form of relationship. Does the constitution require society not only to permit, but to recognize, sanction, and reward particular lifestyles? And is it a federal concern, or should it be left to the states? If to the states, then California should be permitted to enforce Prop. 8 or overturn it using the political process.

    If we argue that marriage has a universal definition, then we are probably taking a view that matches a natural rights view. In which case, people should not be voting on each others’ rights. But if we argue that marriage is the creation of a state which can define it any way it wishes, and that the voters can decide, then the voters can take away your right to marry, or approve of all sorts of bizarre forms of marriage. The results of that may in the short term work in the conservative direction. But it won’t stay that way for long.

    Well, perhaps not. But, is that a reason for the courts to intervene? And for us to passively wait for the courts to tell us what our rights are? The voters can’t take away anyone’s right to marry, just potentially the legal recognition of it. Is that so bad that it requires the courts to make up a constitutional right?

  • kirk

    Grace @20,

    So what do “receive” and “hear” mean? Does it mean accept and believe, or does it mean be courteous and to listen. We can see from Christ’s example that he didn’t reject those that disagreed with him. Quite to the contrary, he dined with sinners and tax collectors, much to the chagrin of Jewish society at the time. If we, as Christians, only deign to associate with and befriend those that already agree with us, where is our witness?

    If you’ll only befriend those that immediately accept your viewpoints without argument or disagreement, I’d imagine you’re pool of friends is homogeneous and relegated only to other Christians.

  • Jon

    @ Rick,

    I think that the meaning of the word natural in your natural law argument has unfortunately been mixed up and twisted by a vocal minority into bullying and shaming the majority to have to accept or capitulate to what clearly is most un-natural behavior.

  • Jon

    @ Frank 23,
    Source, please, for your proffered fact that no fewer children will be raised by a natural two-parent family as a result of homosexual marriage?

  • Rick Ritchie

    Don@30
    Well, listening to the actual arguments, I find some surprises. It is often the case that while listening to the lawyers argue, their arguments don’t match those of the people outside the courtroom. That is quite true here. Ted Olson was actually arguing about the label. His key argument seemed to be that the California government had made decisions about adoption and other matters that suggested it did not think that a gay couple was different from a heterosexual couple in quality. So withholding the label “marriage” did matter. He said it would not be equal treatment at a prior time to grant interracial couples an interracial civil union rather than a marriage. So the expression of approval did matter. And his argument was not that all states had to aprove it. It was that if their other decisions already suggested these people were equal, withholding the approval was arbitrary.

    ” Is that so bad that it requires the courts to make up a constitutional right?”

    I’m listening to the arguments to decide that. And I suspect they won’t create a new constitutional right to gay marriage. More likely, I think they will enforce a current constitutional right to equal protection. And it may not apply in the same way to all states. It could be that gay marriage could end up against the law in many places, but that making it illegal the way California did, given California’s other laws, is what is illegal. We could see a decision (on either side) that is narrower in scope than many expect.

  • fws

    jon @33

    Logic.
    Give me a scenario, any plausible scenario, of how you think gays marrying will affect how many children get raised , to adulthood, by both their birth parents. I am not seeing it.
    Tell me what I am not seeing please.

  • DonS

    Rick @ 34: Maybe so. A lot of folks on the left are trying to push the court to adopt a narrower holding because they don’t believe the court is ready to grant a sweeping new fabricated right to gay marriage.

    However, how is that better? What they are arguing, in essence, is that because California had passed civil unions legislation and made other accommodations to gay couples with respect to adoption, etc., so they should be forced to go the rest of the way and recognize gay marriage. On the other hand, under this strain of argument, since other states have done nothing to accommodate gay couples, they would not be required to recognize gay marriage. How in the heck does such an argument make any sense whatsoever? They are saying that if you treat people REALLY unequally, that’s OK, but if you try to treat them more equally, then you must treat them totally equally. Huh? Talk about darkened minds and human wisdom being utter foolishness.

    The equal protection argument is a crock. And comparing gay marriage to interracial marriage is a crock. Race is a protected class, as it has been held numerous times, and thus is subject to protection under the Equal Protection Clause at the highest level of scrutiny — the compelling interest test. Homosexuality is not in that category. It has never been held to be a protected class under U.S. Constitutional jurisprudence, and the 9th Circuit did not so hold in its decision. It decided instead that, even under the lowest level rational basis test, California did not have the right to have a marriage law limited to heterosexual marriage because there is no rational basis for such a law. Despite millenia of human history. Despite the fact that only heterosexual couples are capable of procreation, and responsible for the continuation of the species. No rational basis. It was a nonsensical ruling and is another example of unelected judges taking the law into their own hands and interfering with the natural right of the people to govern themselves in liberty.

    And the worst thing of all is to see how many supposed libertarians support the most egregious kind of government intrusion — that of the unappealable edict of an unelected, politically appointed body of jurists — to impose whatever the heck they want to on the people’s right to govern.

  • fws

    don s @ 36

    most gay thinkers who are also federalist conservatives would actually prefer a narrow ruling Don.
    You can go over to Andrew Sullivan´s web site to see his thinking there.
    And Andrew was the very first gay to push for gay marriage.
    At the time, ALL the liberals were lined up against him!
    My have times changed!

    They would want DOMA repealed.
    And they would be very happy to just let the deliberately narrow, lower court rulings be allowed to stand.
    The 9th circuit I think deliberately issued a very narrow decision as did the cal supreme court.
    They seemed to consciously be seeking to craft their decisions to allow for the maximum number of possible outcomes happen in a US Supreme Court decision. Their decisions, upon Reading them, seemed to anticipate that they would be fodder for the US Supremes and they wrote with that in mind.

    That means that they would also have been happy to not have had a Loving vs State of Virginia, letting the issue of inter-racial marriages be overturned, slowly, state by state.

    I am not sure I agree.

  • fws

    don s @ 36

    i am saying that all the gay commentators i read not only expect, they wish for a narrow decision.
    They would rather have things evolve, rather than happen by judicial fiat.

    We would also not favor having a 51% decide things for the 49%. That is democratic dictatorship. It is not freedom. By what principle of fairness or equity or freedom does a majority get to impose their will upon any minority by force of numbers?

    It is why we have a constitutional republic, so that does NOT happen.
    And that is why we favor overturning prop 8.

  • fws

    It is NOM who was pushing for majority rule.
    That´s a dangerous precident.
    And public opinion moved alot more quickly against them than they ever anticipated.
    This was precisely because they endlessly and agressively broadcast their views.
    So people got to see there was no “there” there. Only fearmongering.

    Fact: No one has identified one single concrete and tangible public harm in gay marriage.
    The attorney before the Supremes could not. He was asked.

    And that is why people increasingly dont care.
    “Live and let live”. This is the sum of the aim of the Divine Law´s carnal work on Earth.
    The Golden Rule is ruling and driving consciences in the minds of all as Romans 2:15 says it will.

  • fws

    and IF there happens to be a ruling that completely legalizes Gay Marriage… what then?

    Roe vs Wade revisited? Nope.
    Murder can and should move us to radical action. Letting a couple fags get a marriage license… not so much…. NOM will need something else to pay Mr Brown of NOM his salary in this case! He is already positioning for that I see from his site….

    And what will happen in our churches:
    Many will now turn to Roman Catholicism , now feared into Thomism by the gay hoardes clamoring to be let into the church and society.
    Unwed couples will be gradually accomodated just like divorced-remarrieds, and blended families were quietly accomodated not so very long ago. Divorce was treated so much differently in the LCMS and WELS not so long ago……Franz Pieper was against womens sufferage in society for the exact same reason he opposed it in the church! We conveniently ignore that sea change dont we?

    And gays? as society changes it´s atitudes… so will the churches. They will feel ashamed. It´s true.

    It should be the other way around.
    But its not because we are all sinners.
    And it is because God rules even churched sinners by romans 2:15.

  • Rick Ritchie

    Don@36. No. I think you miss the essence of the argument, as did the justice questioning Olson. The point is not a broad one of if you go part way you have to go all the way. The point is that if you cite as your reason for not going all the way something that laws you have passed say is false, you are being inconsistent. For instance, if you allow gay adoption, because it is good for the welfare of children, you cannot then deny gay marriage on the grounds that it is harmful to children. Those two ideas contradict each other. Other states may not have contradicted their own arguments with their laws.

    It should not be a surprise the libertarians think there are limits on the people’s right to govern each other. The more they govern each other, the less they may govern themselves.

  • DonS

    FWS @ 37-40 and Rick @ 41: I’ll respond to you both together, since you are taking similar positions, and my responsive point is broad in nature.

    An ordered society governed by someone is inevitable. The Founders believed that the most equitable form of government, one which gave the most people possible the say over how we order our society, and was best able to advance and continue in perpetuity the right of the people to life, liberty, and the pursuit of happiness, was a democratic one. The alternative was some kind of autocratic form of government, as was the norm in the developed world at that time. They recognized that the majority can be oppressive at times, however, and so created the Bill of Rights to ensure that the natural rights of each citizen in the minority were protected as best as possible.

    FJU, your main point seems to be that democratic government is NOT the best form of government, repeatedly insisting through the years, as you have now done @ 39, that majoritarian government is a “dangerous precedent”. I don’t even know how to respond to such a point. What form of government would you suggest as an alternative, dear sir? What other form of government is less oppressive to the minority than the one we currently have? The important thing to remember is that our protection from the majority is the Bill of Rights. In order for those rights to protect us, they must be absolute in nature — unchangeable over time. A “living Constitution” is the worst enemy to the minority, because it results in a jurisprudence where only “popular” rights are invented and protected. In the present case, we have gay rights activists arguing that the right to gay marriage should be recognized by the Court precisely because society has changed, and the will of the majority demands recognition. Huh? How silly. What happens if, in the future, it becomes less popular? Should the “right” then be forfeit? Or what about 40 years ago? If it is a right now, shouldn’t it have been a right 40 years ago? Were homosexual couples different then? Was Equal Protection different then? I do not understand how people can be duped into supporting the notion that the Court should impose popular social change. That is precisely the role of democratic government. The Court’s job is to unflinchingly protect the minority, by uniformly applying consistent principles related to the natural rights of man, regardless of popular opinion. FJU, homosexuals are winning this battle in the court of public opinion. Smart activists didn’t want this Prop. 8 suit to be filed, and they want as narrow a ruling as possible because they would prefer to win in the legislatures and ballot boxes, not by court edict.

    Rick, I think you know better than to be arguing this kind of pablum. See my comments above as to why it is so foolish. Think about your argument, and whether it makes sense in the context of things. How could federal Constitutional rights be applied differently in one state than another? How, possibly, could that be in accordance with equal protection? If a gay couple has a federal constitutional right to marry in California, then it must also have that same federal right in Mississippi, under that well established principle of equal protection. That is why I am almost entirely confident that the Court will not affirm the 9th Circuit’s absurd holding. They could possibly (though not likely) punt on the basis of standing or some other formality, saving the matter for another day, but they will not find that disparate treatment in different states is constitutional if the treatment is related to a protected activity or status.

    To your specific point about rational basis review. please note that historically, I cannot recall a case where a law was found to be unconstitutional under that lowest level of scrutiny. I’m pretty sure it has happened, but it is EXTREMELY rare. Any rational basis for the law will do to justify it under this standard, where a protected class of people is not involved. Specifically, you say:

    For instance, if you allow gay adoption, because it is good for the welfare of children, you cannot then deny gay marriage on the grounds that it is harmful to children. Those two ideas contradict each other. Other states may not have contradicted their own arguments with their laws.

    Well, under this low standard, I heartily disagree. The state may have imposed a law permitting gay adoption, because it rationally believed that having a gay couple adopt a child is preferable to having the child remain a ward of the state. On the other hand, that same state may also have imposed a law limiting the legal status of marriage to heterosexual couples because it rationally believes that encouraging that historic traditional form of marriage, and incentivizing couples potentially capable of procreation to commit to one another and avail themselves of the automatic legal benefits of marriage is in society’s best interests. No constitutional problems in those two decisions. Both laws are rationally based, and are consistent for purposes of the lowest level of constitutional scrutiny.

    Remember, Rick, appealing to your libertarian side, we are not talking about laws PROHIBITING conduct here. Homosexual couples are perfectly free to cohabitate and marry, if they want to. We are only talking about a particular legal status. The ordering of society, which a free people should have a largely unfettered right to do. Governing by court edict, instead of by democratic rule, is not freedom. It is the opposite.

  • Grace

    Military Chaplains, Pastors and all clergy made to perform performing marriage of same sex individuals, by law, if same sex marriage is made law.

    RELIGIOUS LIBERTY AT RISK:

    Rev. Rob Schenck makes a statement in front of the Supreme Court.

    http://www.nbcnews.com/video/nbc-news/51349814/#51349814

  • fws

    @ 42

    your main point seems to be that democratic government is NOT the best form of government, … that majoritarian government is a “dangerous precedent”. …What form of government would you suggest as an alternative, dear sir?

    The Federalist papers:
    A constitutional republic, with strictly representative government.

    Constitutions would be extremely difficult to amend. Mass has the most representative of this thinking: Gay marriage was not repealed there. Why not? too many election cycles required! no way for anyone to whip up emotions to make an emotion based change! there had to be two votes of the legistlature, spaced 3 years apart, THEN a referendum! lots of barriers. That is in keeping with the founder´s thinking.

    The would have NOT approved of referendums!

    Originally, only the state assemblies and federal house were directly elected democratically. And then only by property owners. Senators? chosen by state assemblies. Presidents? by electors.

    Get the drift? the Founders MIStrusted democracy! They put up as many barriers to preserving the Constitutional rule of Law and to rule through representatives.

    what was the alternative to this “Rule of Law” ? Rule by decree. The rule of men.
    What men, rulers or democratic majorities say, IS the Law. wha a king or dictator, or… 51% say at any time is the Law.
    And this rule is very very fickle indeed! It can be manipulated by charismatic public speakers.

  • fws

    @ 42 don s

    In the present case, we have gay rights activists arguing that the right to gay marriage should be recognized by the Court precisely because society has changed, and the will of the majority demands recognition.

    The argument is the equal protection clause Don.
    How is that an argument that says “change laws to reflect change in majoritarian preference?

  • DonS

    Well, FWS, you’ve managed to miss 99% of the point of my comment, which has to do with the courts deciding constitutional issues based on their popularity, not based on immutable standards of natural law.

    As for the fact that CA permits its state constitution to be changed by referendum, it’s immaterial. The California constitution is restrained by the bounds of the U.S. constitution, so the people can do only so much harm. I agree — it would be entirely inappropriate to change the U.S. constitution in such a way. But, every point I made above applies whether the California law had been statutory or constitutional. The only reason the state constitution was at issue was because the California supreme court, on a 4-3 vote, had usurped the people’s power and declared the original marriage statute unconstitutional under the state constitution. So the people changed that.

  • DonS

    The force of argument in the public square and in the media is that the courts should get on board because the people support gay marriage. Do you think this issue would have gotten the least bit of traction in 1982? If the Equal Protection Clause is at issue, what changed? It’s the same clause.

  • fws

    don @ 42

    The Court’s job is to unflinchingly protect the minority, by uniformly applying consistent principles related to the natural rights of man

    Nope. The are to follow the existing case law, precident, and the implications of how our Constitution limits the power of government.

    But the wider context is Always this one:

    The function of our US Constitution is NOT to enumerate or grant rights. That would be the european model.
    This model merely replaces kingly fiat with a paper fiat. Kings granted rights to subjects that were their property. Rights not specifically enumerated or granted, remain with the Sovreign.
    This has its basis in Roman Catholic, Thomist, Natural Law. Rule by Divine Right.

    The function of our US Constitution is to limit the “rights” of government, reserving ALL other rights to the people.
    The people rule by Divine Right. But people are not to be trusted! So even their power is limited by ruling only through representatives, and those representatives rule is weakened by deliberately dividing the government to deliberately weaken it!

    Therefore: It is the Law that rules we the people, and their representatives,. Everyone and everything is placed firmly under the rule of Law. Every branch of government is ruled over by the two other branches.
    This is the Rule of Law.
    And originally, the Laws were passed to control and restrain now the government ruled. That was the animating principle.

  • fws

    don s @ 47

    ah scalia´s argument
    And Olson responded well:

    When did the constitution ….
    forbid slavery?
    give women , White non property owners, and blacks the voting franchise?
    allowed blacks to get married legally?
    allowed White and black to marry?
    etc etc.

    What is your answer Don S?

  • fws

    don s @ 47

    the force of argument in the media is indeed controlling more and more since we are, in fact, moving towards as pure a democracy as has ever existed with the speed of communications.

    And you seem to favor democracy Don. Remember: I favor constitutional representative federalist republicanism.
    THAT is why I would faver a narrow court ruling. regardless of public opinion.
    you missed ricks argument in 41 as to why it is a consistent position to allow gay marriage in one state and not another. this sort of variation is not unusual in our nations history is it?

  • DonS

    FJU @ 48:

    Nope. The are to follow the existing case law, precident, and the implications of how our Constitution limits the power of government.

    Yes, that’s true, at least to the extent that the Supreme Court hasn’t previously strayed from appropriate constitutional interpretation.

    Of course, if we are advocating that the Supreme Court follow its own precedent, see Baker v. Nelson (1971). In this prior case, the Minnesota Supreme Court ruled that limiting marriage to heterosexual couples did not violate the U.S. Constitution. The U.S. Supreme Court summarily dismissed the appeal “for want of a federal question”. See the Wikipedia summary here: http://en.wikipedia.org/wiki/Baker_v._Nelson and the original case here: http://www.cas.umt.edu/phil/faculty/Walton/bakrvnel.htm

    So, we agree. Let’s follow direct precedent.

  • DonS

    FJU @ 49:

    When did the constitution ….
    forbid slavery?
    give women , White non property owners, and blacks the voting franchise?
    allowed blacks to get married legally?
    allowed White and black to marry?
    etc etc.

    The answer, of course, is that it always did. It just took a while for society to recognize that when the Constitution references people it means ALL people. Regardless of their immutable characteristics — color or gender. They are natural people, within the meaning of the document. Property-owning is a bit different — that has to do with voting rights only. It’s not otherwise a protected classification to not own property.

    The flaw in Olson’s case is that the lower courts did not rule on the basis that homosexuality is similarly situated with race and gender. They didn’t think they could make that case in the face of direct Supreme Court precedent and the criteria set out to define a protected class. Instead, they ruled that in this particular case, even under the lowest level of scrutiny applicable to homosexual marriage, the practices, traditions, and marriage laws of the ages are irrationally based. A novel argument, to be sure. And Scalia was right to point out how much Olson was weakening our vital constitutional protections by making such a frivolous case.

  • DonS

    FWS @ 50: I don’t know how you get that I favor direct democratic over representative government based on what I said, except by utterly ignoring the context in which I was commenting. But, whatever. The important part of your comment is this:

    THAT is why I would faver a narrow court ruling. regardless of public opinion. you missed ricks argument in 41 as to why it is a consistent position to allow gay marriage in one state and not another. this sort of variation is not unusual in our nations history is it?

    I didn’t “miss” it at all. I “dismissed” it. That sort of variation is unprecedented where a federal constitutional right is at stake. At least, I’m not aware of any precedent for such a novel holding.

  • Rick Ritchie

    “The Founders believed that the most equitable form of government, one which gave the most people possible the say over how we order our society, and was best able to advance and continue in perpetuity the right of the people to life, liberty, and the pursuit of happiness, was a democratic one. The alternative was some kind of autocratic form of government, as was the norm in the developed world at that time. They recognized that the majority can be oppressive at times, however, and so created the Bill of Rights to ensure that the natural rights of each citizen in the minority were protected as best as possible.”

    If the initiative process was so central to their vision, then how come no state adopted one until 1898?

  • fws

    don s @ 52. so you just dont see homosexuality as an immutable characteristic is all.
    But you allow for the evolution in thinking you just stated.

    @51 after Lawrence and romer, precidence changed. No use quoting precidents previous to that, ;)

    @ 46 I specifically adressed some of your arguments. I quoted them. That is how you know that. I didnt miss 99% of your argument. I simply found it without merit and so not even warranting a response. :)

    bless you Don. thanks for the Exchange! You are polite and fun as Always.

  • dust

    sg at 22….yes, perhaps, but to me the biggest lie and the root of gullibility started with the wide scale promotion and acceptance of evolution.

    if you can get common folks to buy that grand daddy of delusions, it makes everything else so much easier to sell, like tickets to the barnum and bailey circus :)

    cheers!

  • DonS

    Rick @ 54: “If the initiative process was so central to their vision, then how come no state adopted one until 1898?” Really? That’s what you got out of my whole comment???

    By “democratic”, I meant government by the people, not by unelected rulers. I didn’t mean direct democracy, specifically. The Founders never suggested a direct democracy, nor do I. The only reference I made to initiatives was to say that they are a constitutional means for amending a state constitution, since a state constitution is subsidiary to the federal constitution.

    Do you have a more substantive response?

  • DonS

    FWS @ 55:

    so you just dont see homosexuality as an immutable characteristic is all.
    But you allow for the evolution in thinking you just stated.

    Hmm. It’s not about me. It’s what the lower courts did. They chose deliberately not to make the case that homosexuality is a protected classification. It’s not just immutability, there are a host of factors. One of them is that the protected class have little or no political power. Obviously, that is not the case for those promoting homosexual rights. It’s not the evolution in thinking that’s the issue. It’s that a consistent standard be used in determining what rights are covered in the Constitution. And it is ensuring that the popularity of a cause has no bearing in deciding the outcome of a case. That is where our courts have so often been a disaster.

    “@51 after Lawrence and romer, precidence changed. No use quoting precidents previous to that, ;)”
    OK. Except that the Baker v. Nelson case is still good law, and Lawrence and Romer were decided on completely different facts and principles. Lower courts aren’t free to almost completely ignore direct Supreme Court precedent, as was done in this case. It is up to the Supreme Court to overturn its own precedent, not a district court judge.

    I’ll ignore the rest of your arguments as well ;-)

    Blessings to you, Frank, and Happy Easter!

  • Rick Ritchie

    Don@57
    ” How could federal Constitutional rights be applied differently in one state than another? How, possibly, could that be in accordance with equal protection? If a gay couple has a federal constitutional right to marry in California, then it must also have that same federal right in Mississippi, under that well established principle of equal protection. ”

    I nowhere argued that gays have a Federal Constitutional right to marry as such. (I’m not quite sure what all that might entail.) So I don’t know how to respond to the rest of your argument. I’m listening to particular arguments on both sides of this. When I note that a particular argument is strong or weak, that should not be taken as a wholesale buying into or rejecting of the position. As I said early on, I probably won’t know my position until the arguments are over.


CLOSE | X

HIDE | X