BoiFromTroy hits it out of the park arguing that John Roberts’ potential rulings on the alleged “right to privacy” or his rulings on abortion (based on that “right to privacy”) have nothing to do with the issues that should be important to homosexuals (like his potential rulings on the First and Fourteenth Amendments).
For the longest time, I have never understood why gays care about abortion, other than it is a Democrat wedge issue and gays are predominantly Democrat. If the tables were turned–let’s say the GOP were the Abortion Party, and Democrats were the gay rights party, would any of us care? I don’t plan on knocking any chicks up any time soon.
Henry Lewis makes a good case that the rationale in Lawrence v. Texas was built upon the same privacy argument as Roe, and therefore the two are linked.
Accepting that as the rationale for gay rights, however, is self-loathing. You’re buying into a logic that being gay is a personal choice that you should be ashamed about, and keep hidden from government intrusion. This isn’t a legal opinion, but that’s bullsh*t.
The courts have yet to find it (outside of Massachussets at least), but the real argument for gay rights can be found in the Constitution, in the Fourteenth Amendment. We’re here, we’re queer, we’re Americans, and no State shall deprive us of life, liberty or property without due process nor deny us equal protection under the law. We, the gays, are full citizens of the United States. Be proud of it.
BoiFromTroy: So it’s talking points you want, eh?
He then goes on to make an interesting argument (although he admits it is only partially formulated) about how the key to legitimizing homosexual marriage/unions might be in the establishment clause of the First Amendment.
Aaron says
OOORRRR… you could realize that marriage is not explicitly or implicitly mentioned or defined in the US Constitutution, nor is instituions like it, and therefore any Federal Court that rules on it is by definition activist. Marriage is an institution that has been set up (endorsed is a better word actually) by state governments and they can therefore put any restriction on it that they please. Gay men are not being deprived of any rights that straight men have… none whatsoever.
Now there might be something in State Constitututions that are different, but I haven’t read very many of those (read: 0) so I wouldn’t know…
Mark says
Loving v. Virginia (1967) established marriage as a basic civil right (basing the decision on the 14th amendment).
How does this ruling not also apply to gender?
Straight men can enter into a civil union with their (adult) unmarried lover. Gay men can’t.
I’ll be interested to hear how you can justify the outlawing of interracial marriage bans but not same-sex marriage bans (assuming you agree with the decision in Loving v. Virginia).
Sphagnum says
We’ll start here:
Short answer, no. If the state had passed a law regarding cohabitation or the like, I’m all for the court striking that down because then the state really would be telling me who I can and can’t “love”. But I think a state has the right under the Constitution to issue licences for marriage however it sees fit. If the state doesn’t like marriage to a black woman, so be it. My church will recognize it and that’s good enough for me.
And no, you missed the mark on that one. I and my brother have the same rights to marry all of the same people, regardless of our sexual orientation. We can both marry any one woman out there as long as she is not currently married, over 18 years old, and not blood related, among other things. We both have the same options. If we have the RIGHT under the 14th amendment, as you state, to marry whomever we “love”, then we need to abolish all restrictions on incestuous marriage for starters. An good argument can be made to remove age restrictions and quantity limits as well, but that’s another story…
Mark says
That’s a disingenous argument. It’s what I like to call the “Kosher food is now illegal — free ham sandwiches for all Orthodox Jews!” argument.
Many of the things you mention (restrictions on marriage), have good reasons.
Not already married
It’s an exclusive legal contract. That’s a given.
over 18 years old
It’s a legal contract. That’s a given.
not blood related
They could get rid of this, for all I care. So long as people know that inbreeding has serious genetic consequences… that’s their business.
The state is obliged to give equal protection under the law. Forbidding (under punishment of 1-5 years in prison) the marriage between a white person and a black person, as Virginia did, is not equal protection. A white person and an Asian person could get married there, for instance.
Whether there will ever be a majority of Supreme Court Justices who will apply the precident set in Loving vs. Virginia remains to be seen. It may require Federal legislation. Having it decided on a state-by-state basis is silly, because every state has to recognize the legal contracts of other states anyway.
Sphagnum says
My point in regards to this is that you would HAVE to get rid of this restriction among others. See, you’re setting the bar extremely low for marriage when you say…
There are people that have the capacity to love their siblings. There are people that have the capacity to equally love more than one person. If the entire argument is that I am being deprived of marriage from the person that I LOVE and therefore my rights are being infringed, you cannot have restrictions on incestuous marriage or polygamy. Point is, if you break down this restriction on those grounds in a federal court, you have no right to put up ANY restriction on marriage… and that’s just not somewhere we want to go in this country
Mark says
I’m not sure that polygamy follows. You can’t sign two legally binding contracts that contradict each other. People say “oh well now they’ll want polygamy or to marry their dog.” I don’t think so. First… dogs can’t sign legal contracts. Second… getting married a second time while still married to someone else would be a violation of the first contract. That is a restriction that applies regardless of the race and gender of the people getting married.
Sphagnum says
So is the restriction on same sex marriage. It doesn’t matter what race or gender you are. Like I said before, my brother and I both have the exact same rights in regards to marriage, regardless of our sexual orientation
Mark says
It takes two people to get married. If the gender restriction isn’t on one person, it is on the other. A restriction of marriage based on race could also use your argument: you have the right to marry someone of the same race, regardless of your race.
What about your sister (let’s pretend you have one, if you don’t). Can she marry the same people you or your brother can?
Sphagnum says
One more thing to think about:
We’ve been going at this strictly from a judicial point of view, mandating that same-sex marriage be legalized because of such and such in the Constitution… Do you really think this would help the homosexual movement? When something controversial like this is shoved down the throats of the American people by judicial fiat, it will only serve frustrate the people who have had no say in the matter.
The WORST thing that has happened to the gay movement in the last couple of years is the Mass. SC case mandating it be legal. Now many of the states in the Union are successfully amending their state Constitutions soas to ban same-sex marriage, only making it that much harder to change.
Mark says
Racial equality was “shoved down the throats of people” in much the same way, and the country survived. But ultimately, I don’t know the answer to that. Of course, realize that this would affect people to a much smaller extent. Would you even notice if gay marriage were made legal? Would this change your daily life or your rights in any way? This isn’t the right to vote, or the right to sit in the front of the bus… this is just marriage. Or, answer me this: did Britney Spears getting married and divorced over a period of about 3 days have any effect on your life?
Sphagnum says
Obviously it survived, but I’m of the belief that it took longer because of court intervention…
Personally? no. Does abortion? no… but it is still the most divisive issue in the country 40 years after the court made it legal. I think gay marriage would become another rally call like abortion is now if the courts were the ultimate decider in all this… IMHO
Adam Messinger says
It’s an argument way too long to make in a comment, but those watching this post might be interested in my attempt to find a “third way” in the gay marriage dispute.
In short: use the principles of federalism to allow every state to make its own laws on the matter. Strike down the DOMA and replace it with a Constitutional amendment that makes an explicit exception to the Full Faith and Credit Clause for marriages, but which doesn’t include DOMA’s gender-restrictive language. Once the dust settles, people who care enough can move to whatever state has laws they agree with.
I outlined all the gory details of how and why this would work, along with counter-arguments to most challenges to the proposal, in a guest post at Stupid Evil Bastard. I honestly think this may be the only way we’ll see gay marriage legitimized/legalized in the USA in less than 15 years. It could also work on several other fronts of the culture war, and it suits my personal sensibilities as a left-leaning moderate libertarian (or a libertarian-leaning leftist moderate, if you prefer).
Waldo Jaquith says
I’d just like to see government out of business of marriage entirely. It’s a a religious matter. Anybody who wants to form a contract between themselves can go for it. If churches don’t want gay marriage, they shouldn’t allow it. The states’ only business in the matter is adjudicating any disputes that arise from that contract and, presumably, establishing a shorthand contract (eg, “civil union”) that people can sign, rather than drawing up a hundred-page document that says the same thing.
I don’t trust government telling churches how their sacraments are to be performed. Much as government has no business saying that felons can’t take communion, it has no business saying who can and cannot be wed in the eyes of the church.
Mark says
Waldo,
That would definitely be my ideal solution. Yet, some (or many) people seem to be very opposed to this idea. I’ve seen people argue that the government needs to promote heterosexual unions in order to perpetuate the species (I kid you not). This is the ultimate in nanny-statism… essentially claiming that without government promotion of heterosexual relations, people would forget how to copulate.
I’d like to see the concept of legal marriage go away and be replaced with legal unions (yes, the words “union” and “marriage” are very similar in meaning, but the former doesn’t carry all the religious baggage). These unions should be exclusive contracts between any two adults. Honestly, I don’t see how you can oppose this without using some ridiculous “the government needs to promote heterosexuality” line, which borders on violation of the establishment clause.
This gives people what they want. Homosexuals get their equality, and the religious semanticrats (new word) are happy because the “queers” aren’t “peeing in their marriage pool,” as the word “marriage” won’t be used by the government.
If you are a religious person (as I am), it doesn’t matter to you if the government calls your exclusive commitment a union, a marriage, or a [whatever]. It doesn’t even matter if the government recognizes it at all. Marriage is a personal commitment. In my Catholic faith, the priest don’t “perform” the marriage… the people getting married are considered the ministers of the marriage. The priest just acts as a “witness to God.” Just as no one can swear an oath in your name, no one in the government or in the church can give you the power of marriage or take it away. Government recognition of your marriage doesn’t make any more or less valid in the eyes or your faith or your god.
Honestly, I think that objection to this just boils down to bigotry, which stems from ignorance. I saw a poll (sorry, don’t have it handy) that showed the pro/con gay marriage/unions positions broken down according to whether or not the person answering the question personally knew any homosexuals. The gap was astonishing. The people who are fighting this do not know any homosexuals. All they know is what Jerry Falwell et al tell them.
I know how it is… I grew up in a very traditional conservative family. Until I actually got to know some homosexuals, I bought the whole lie about homosexuals being sexual addicts, pedophiles, perverted, mentally warped, in love with themselves, etc. You can be damn sure that my children won’t be raised to think that, and I have a feeling that most of the people in my generation are with me on that. It may take another generation, but we’ll get there.
Mark says
Speak of the devil:
It’s a frightening day indeed when Republicans start talking about what’s best for “society.”