The Fundamental Dishonesty of an Antidemocratic Movement
Justin Katz
If one knows the history of the same-sex marriage debate, the opening paragraph of this editorialized report in the DesMoines Register strikes an odd note:
Basic fairness and constitutional equal protection were the linchpins of Friday's historic Iowa Supreme Court ruling that overturned a 10-year-old ban on same-sex marriage and puts Iowa squarely in the center of the nation’s debate over gay rights.
The redefinition of marriage in Iowa took a peculiar path, indeed, beginning in 1996:
- The Supreme Court of Hawaii declared a right to same-sex marriage.
- Although the state legislature ultimately circumvented the court, the federal government passed the Defense of Marriage Act to limit the ruling's implications for other states.
- Individual states, including Iowa, passed laws affirming that marriage is definitionally a relationship between people of opposite sex, typically with the intention of securing the protection of the public policy exception interpreted to exist to the full faith and credit clause of the Constitution. In essence, if a state explicitly does not recognize same-sex relationships as marriage, the Constitution cannot force it to treat as valid a same-sex marriage enacted in another state, so states like Iowa made their understanding of marriage explicit.
- The Iowa judiciary has taken that statutory affirmation of preexisting principles as an occasion to redefine marriage in the state according to the judges' preference.
In a direct way, the judges of Hawaii exported their activism across state lines not in spite of laws designed to prevent such a thing, but because of those laws. The process does nothing so clearly as illustrate the extent to which democracy is becoming an (at most) dilatory control on the implementation of the social system preferred by the powerful. All that is required is for the powerful to couch their diktats in some mutable principle introduced in a high-level legal source (e.g., the Constitution); the most common such principle is "equal protection," but there may be others that are as yet unexplored.
In an interesting conversational thread on RI Future, commenter Brassband points to this mechanism when he questions the following sentences from the Iowa court's ruling (PDF, page 16):
The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.
As a matter of grammar, what the court argues, here, is that a society may consider groups to be different in some legally allowable way until a particular individual or several individuals perceive discrimination and take the matter to the courts, and the judges — "free from the [social] influences" under which we ordinary humans labor — declare in their favor. Rhode Island College professor Thomas Schmeling subsequently puts that perspective in the company of a fundamentally sacerdotal yet "well-respected theory" that judges rule based on hunches that are justified in the fact that a jurist "not only has his/her own preferences but is also acquainted with constitutional principles, precedents, the views of other (and higher) court judges, so it's not totally subjective." Schmeling goes on to state the matter in terms of his own take:
... I think the Court here is actually making a sensible point, one which which you may well agree. Here's my read:
1. The legislature creates a classification. (let's use bans on interracial marriage as an example). That classification will remain until two things happen:
a. somebody becomes convinced that the classification creates an inequality (one that violates equal protection) and challenges it in court.
b. A court invalidates it.
Now, the legislation presumably embodies society's understanding of what "equal protection" requires, which (as in the case of bans on interracial marriage) may be nothing more than its irrational prejudices. If the courts do nothing more than reflect that understanding, it will never find any classification violative of equal protection and the court will have failed to fulfill its duty. (Do you agree so far?)
If the legislature's/society's judgement/prejudices accurately reflect the principle embodied in the Constitution's equal protection clause (state or federal...there might be a difference)...there is no problem.
However, if the legislature's/society's judgement departs from an accurate understanding of equal protection, that's a problem. To do its job, the court must obviously get beyond this judgement. To do this, the court must be "free from the influences that tend to make society's understanding of equal protection resistant to change". That is, the court should not simply reflect the views of the people and/or the legislature, it must uncover the "true" principle behind the equal protection clause, and use that principle to judge the classification.
If the members of the court simply say "I think equal protection clause should embody MY prejudices", I think we'll agree that the court has departed from its proper role.
If, on the other hand, the Court adopts a principled interpretation of the clause (which must, of necessity be independent of the prejudices of the judges AND of the prejudices of the legislature/society), the court has fulfilled its proper role.
Consider for a moment who has been excluded from the interpretation of equal protection's "'true' principle": the judges' personal views don't apply, the relevant legislators' personal views don't apply, the people's personal views (as expressed democratically) don't apply, and certainly the personal views of those who penned the Fourteenth Amendment back in 1868 don't apply. So from whence — by whom — is it determined that the true meaning of the equal protection clause requires that the true meaning of marriage be something other than what it has always been understood to be — a relationship between men and women?
Ah, there's the nub. The reality is that, like the interstate process of bouncing judicial rulings, the whole thing is a performance to enact the preferences of an elite class as written into the "hunches" of judges. On the page following the above quotation, the Supreme Court of Iowa states:
The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans.
The whole dance — costumes, streamers, stage props, and all — is a distraction from the truth that the "particular class of Iowans" are not excluded by "state action," but by definition and by the way in which they choose to live their lives.* They are excluded by the fact that humankind has recognized a natural distinction of the intimate relationships into which men and women enter and sought to guide those relationships in the direction of social health — as understood not through contrived experiments, but by centuries of observation and social evolution — through an institution called "marriage," which it acknowledges and privileges as something unique.
Our nation's founders pursued representative democracy as a means of layering social control such that the most basic and profound questions would not become subject to immediate battles of power, but would require engagement of the process and efforts toward persuasion. Progressives' broad-based campaign has been to corrupt process for their own ideological benefit, and it will spell calamity whether the masses respond with a forceful expression of the only forms of power that remain to them or by stepping back and watching their civilization collapse out of an aversion to conflict.
* I am not invoking, here, the "homosexuality is a choice" declaration. I'm merely pointing out that — quite reasonably — homosexuals opt to form their lives around their affections rather than a traditional family structure.
It's not just those liberal coastal states anymore! Flyover America's caught The Gay. Maybe not ALL churches in Iowa oppose it.
Guess the anti-SSM folks will have to start reading up on housing options in the fundamentalist Muslim world. After all, there's not much difference between that and righty evangelicalism.
Utah remains an option, of course - all those beautiful SLC suburbs.
Ah, Rhody, so good of you to preemptively scuttle a higher-level conversation. I'll resist making the rejoinder that progressive judicial activism is not without its similarities to Islamic dictatorships.
I'd add that the dishonesty that I mention in the post is also to be found in your insinuation that a judicial ruling somehow expresses the views of the people of Iowa, whose views the judges summarily dismissed.
it is anti-democratic to keep you from discriminating? Now that is just sad.
Justin,
Thanks for the rehash of your arguments here. But what I find more interesting in your post is the curious use of language for a "conservative" blog.
I have a hard time figuring out if you are an anarchist or an old school socialist. Your free form use of tropes like the "elite" class subjugating the common man mixed with your half-concealed calls for revolution could be many things -- but it is certainly not the writing of a conservative.
Your visceral hatred of an independent judiciary fits nicely with the critiques of the early 20th century socialists, and even better with the programs of the totalitarians of that era. You must read the speeches of Franco quite often.
As for the substance of your post here, it's all been said before. You refuse to acknowledge that this court has any legitimate argument at all (unanimous decision by a court hardly considered lefty), so you rail against the elites.
As for the democratic process, you always fail to note that the California legislature authorized SSM twice, only to be vetoed by the Governor. The Vermont legislature is now going through a similar debate. Popular decision making in Europe figures even less in your analysis (of course, as a modern "conservative" you couldn't cite to those foreigners without losing some cred with your fellow travelers).
Oh, and I shouldn't forget to complement you on the nice apocalyptic close. Adds some real spice of anarchist zeal to your screed.
Crowley and Pragmatist: sides of a coin.
Crowley won't (or can't) address arguments that pull him beyond the reach of his comfortable talking points, and Pragmatist is so thoroughly concerned with binding others in the incidentals of language and emphasis — in combining pre-written Rhetoric Cards #283 and #176 — that he utterly fails to acknowledge that different standards apply to different topics, times, and governmental mechanisms.
Pragmatist and other SSMers,
Do you favor the abuse of judicial review (i.e. the process)? I'd hope not. Maybe you might even "hate" such abuse.
This Iowa court acknowledged that the marriage statute did NOT expressly create a classification based on sexual orientation.
Instead, the court opinion proposed that the "same-sex" category was proxy for a classification based on "intimacy" that featured gayness.
But it did not cite a state imposed legal requirement for "intimacy" nor did it specify the kind (and quantity) of "intimacy".
Pehaps we could suppose "sexual intimacy" was the key feature that for some reason the Court decided it would leave implied only.
But that would be society lending a hand to the judiciary, right? Filling-in the blank even when the Court was supposedly doing the heavy lifting in making explicit what was supposedly only implicit in the effect of the statute.
There is no legal requirement that would make "sexual intimacy" mandatory in the relationship of persons of the same sex. So this key feature is less implied than conjured.
And THAT work of conjuring was done entirely by the Court and not by lawmakers nor by the People nor by the social institution of marriage. Interestingly, the Court did not even work up a sweat in this act of high-priestly-intervention.
On the other hand, the legal presumption of paternity is what makes of the conjugal relationship a sexual type of relationship between a man and a woman. This makes of marriage a public relationship with societial significance meriting a special status for the coherent whole -- for the social institution that the law affirms rather than creates.
But this legal presumption (and its criteria for rebuttal), based on custom and tradition as reflective of the two-sexed nature of humankind, is irrelevant to the same-sex arrangement regardless of the sexual orientation and attractions -- and "sexual intimacy" -- of the participants.
No presumption of paternity applies to the all-female arrangement; no such presumption applies based on whatever an all-male arrangement might do sexually; dittoe for the all-female arrangement. Some other presumption based on state licesning might be concocted, but it would not be based on "sexual intimacy" that might be defined by gayness.
The marital presumption of paternity is highly relevant in terms of the two-person limitation (i.e. one man and one woman, two sexes), and the lines drawn based on relatedness (re incestuous sexual relations), and the criteria that determine capacity to consent to the conjugal relationship's most public aspects -- the contingency for responsible procreation and the integration of the sexes.
So, is the marital presumption of paternity no longer marital since it does not fit the one-sexed arrangement in Iowa? Is it unconstitutional because it effectively, by the Court's stated standard, discriminates on the basis of sexual orientation (exclusively to the "straight" and not at all to the "gay" orientation)? If this is skipped by the Court opinion, how then to deal with the equal protection claim in the context of the marriage definition which Court strongly implied was based on sexual intimacy?
The Court's opinion is like a lost gymn sock left hanging on the rail of the lockerroom shower stall.
RIP Harvey Milk
Mr. Milk
I can only hope that Saint Peter provides you with internet access.
You must be smiling right now
Signed your friends on the Left,
and a few on the "RIGHT"
Justin,
I'm honored that my remarks were raised from the relative obscurity of RIF's comments section to appear on your front page. I must confess that, had I foreseen this, I would have spent more time editing and trying to say things more artfully. Still, I'm satisfied that I was able to capture the essence of the Iowa Supreme Court's meaning in the two sentences that Brassband quoted, and that meaning is an eminently reasonable view of the relation between "public sentiment" and judicial duty.
Though I am sure you would not intentionally misrepresent my views, I do think your presentation of them is somewhat misleading, I find it necessary to offer two clarifications.
1. You have misrepresented my views on the role of "original intent".
Consider for a moment who has been excluded from the interpretation of equal protection's "'true' principle": the judges' personal views don't apply,
Right. They should not. I think you agree.
the relevant legislators' personal views don't apply
Right, they should not, and I think you'll agree here too. There's no point in having a constitution if the constitutionality of laws is to be judged by the views of those enacting the law.
….,the people's personal views (as expressed democratically) don't apply,
Right, they should not. See above.
and certainly the personal views of those who penned the Fourteenth Amendment back in 1868 don't apply.
Stop. Right. There. I never said this. At all. I purposely used 'scare quotes' in referring to the "true meaning" of a constitutional provision to reflect the fact that this "true meaning" is likely to be a contested subject. Your inclusion of this distorts what I said and attributes to me a position that I did not take, and would not take if pressed. [For more, if you care, see my upcoming response to Brassband on RIF]
2. You've somehow mistaken my comments on the "judicial hunch" (which, by the way, appeared in a different thread than the above) as a justification for judicial decisions, when it is actually a description of how decisions are arrived at. This distinction is important. The original notion of the "judicial hunch" is attributed to Judge Jerome Frank, but here is (Reagan appointee) Anthony Kennedy's account of approximately the same process.
You know…all of us have an instinctive judgment that we make [about people, etc]…That's the way you get through life. And judges do the same thing. And I suppose there's nothing wrong with that if it's just a beginning point. But after you make a judgment, then you must formulate the reason for your judgment…into a verbal formula. And then you have to see if that makes sense, if it's logical, if it's fair, if it accords with the law, if it accords with the Constitution…. And if at any point only this process you think you're wrong, you have to go back and do it all over again.
The point is, the "hunch" is a starting point. The justification for the hunch comes later. If the hunch turns out to be unjustifiable, you reject it. It's not, as your remarks seem to suggest, judges simply imposing their gut reactions on the rest of us. There is nothing sinister or sacerdotal about it.
FWIW, that very last paragraph should not be indented. That's me, not Kennedy
Old prejudices die hard.
A court decision is nice.
A legislative victory is better.
A victory at the ballot box (as may happen in California next time) would be the ultimate.
Remember, Justin, judicial activism is in the eye of the beholder. And if you're expecting every church in Iowa to join your jihad, you just might be disappointed.
The old tropes about areas that support SSM being hotbeds of Hollywood liberalism don't apply in Iowa.
Hold on Justin -- did you just say that "different standards apply to different topics, times, and governmental mechanisms"?
That is just too rich. Really. Did you read that before you posted? I know blogging is an exercise in speed writing, but how did you let that one slip?
Given that statement, I await your switch to this side of the SSM debate.
Thomas,
I may have inaccurately described your views, but I don't see that I've misrepresented what you've written. I'd point out that I've presented your stated point of view pretty much in full.
1. Are you now saying that you believe the politicos fresh from the experience of the Civil War intended their notion of equal protection to apply in such a way as to invalidate the ages-old definition of marriage and to erase the presumption of mutual childbearing and rearing from the institution?
Are you now denying that you hold there to be an application of equal protection that adheres to some ideal, the interpretation of which you place wholly in the hands of the courts? How is that not sacerdotal?
The bottom line is that equal protection claims can be made in every instance in which classifications may be erased, and the Iowa court (and, it still appears, you) believe that a handful of unelected judges should have the power of erasure.
2. No, actually, the "judicial hunch" appeared in the same thread. I think you're being a bit defensive in your description of my handling of it. If judicial decisions are indeed made in that way, as I've little doubt that they are, then the finding has implications for how we structure our government. If, that is, judges truly rely on their own prejudices and their rarified comprehension of rulings and laws to interpret vague concepts with broad implications — rather than more or less mechanically applying explicit laws — then we need to limit the scope of decisions that the judiciary can appropriately make.
Again, Pragmatist, you evince your everywhere-or-nowhere limitations. Different standards do apply in different circumstances. There are mechanisms for choosing and for enacting, and moreover, there are cases in which difference is not advisable.
The fact that society can change terms over time and across boundaries does not instantly mean that all changes should be pursued, much less pursued by any means possible.
Dishonesty of an Undemocratic Movement?
Every three full moons,or so, Justin
post one of his anti-gay rants.
The vote in Vermont 22-4 and 95-54
is undemocratic ??????
Almost veto-proof
Read between the lines of these anti-gay
rants, they are not about SSM, they are
just anti-gay rubish.
You're wrong. So is Rhody with his allusions to my "jihad."
And I wasn't implicating Vermont, was I? I'm arguing against the principle of "by any means possible," which wipes out many more social structures than the one that is ostensibly its central target.
Justin,
I may have inaccurately described your views, but I don't see that I've misrepresented what you've written.
"Inaccurately describing" and "misrepresenting" are the same thing. "willfully misrepresenting" is quite another thing, and I explicitly refrained from alleging that. I hope I was right.
1. Are you now saying that you believe the politicos fresh from the experience of the Civil War intended their notion of equal protection to apply in such a way as to invalidate the ages-old definition of marriage and to erase the presumption of mutual childbearing and rearing from the institution?
I have no idea at all what would prompt you to write the above. Please find one point where I said this, or anything like it, and quote it accurately, please. In fact, find one place in any of my comments on RIF where I justify the Iowa SC decision in any way, other than saying that I did not find, on a quick reading, anything that was "unprincipled". You're making stuff up here, Justin. it's rather insulting, and certainly tiresome. Please stop attributing to me things I have not said.
Are you now denying that you hold there to be an application of equal protection that adheres to some ideal, the interpretation of which you place wholly in the hands of the courts? How is that not sacerdotal?
The framers of the Constitution accepted the notion of judicial review. If you don't like it, take it up with them. And no, I don't think it lies WHOLLY in the hands of the judiciary but, then, again, I never said this either. In order to have an intelligent discussion on this matter, you would need to do a lot of reading. I'm happy to make suggestions.
You used the term "sacredotal" with reference to the "judicial hunch", not with reference to judicial review in general.
The bottom line is that equal protection claims can be made in every instance in which classifications may be erased, and the Iowa court (and, it still appears, you) believe that a handful of unelected judges should have the power of erasure.
Yes. It's called judicial reiview, James Madison, Alexander Hamilton, George Washington, and all of the other signers, framers and ratifiers of the Constitution of the United States, supported it. If you don't like it, change it, but don't try to argue that it doesn't exist. If you're going to argue that we should abandon it, you're going to need a rather more sophisticated theoretical apparatus than you currently have. Start with Larry Kramer, "The People Themselves".
rather than more or less mechanically applying explicit laws
If you think judges do, or ever could "mechanically apply explicit laws", then your understanding of the judicial process is very shallow indeed. There are possibly some cases like this, but they get settled out of court and, if tried, rarely get appealed. Good lawyers advise their clients to stop while they're ahead. The interesting questions take a great deal more thought. That's why they call it "judgment".
then we need to limit the scope of decisions that the judiciary can appropriately make.
Good. Go for it. Until then, please stop trying to claim that the courts don't have the powers that everyone else knows they have, and either please stop posting my comments on your blog or at least PLEASE stop putting words in my mouth. I'm sorry if I sound annoyed, but it's difficult to talk with someone who seems willfully trying to misunderstand what I say.
As much as I don't like judicial activism,the SSM issue will have to be decided by SCOTUS because of the applicability of the full faith and credit clause of the Constitution.
SSM is not the only issue here-a legal marriage in one state between a male and female might be deemed statutory rape in another state.
Any lawyers here with an opinion on that one?
I didn't throw that out as a stunt- I have wondered about it since RI has a much lower age of consent than many other states.
Thomas quoted: "But after you make a judgment, then you must formulate the reason for your judgment…into a verbal formula."
What is the verbal formula by which "intimacy" is the decisive feature in the marriage statutes?
And the verbal formula by which "intimacy" is the basis for equating the same-sex category with a sexual classification category?
You stated this standard and whether it is a hunch or not the standard is not connected to the marriage statute nor to the state constitution of Iowa.
You would depend utterly on an axiomatic belief and the nonauthority of the judiciary to make policy; and not the interpretation of the law by an independent judicary restrained by the rule of law.
The Court acknowledged there was no sex classification in the marriage statute nor in the state Constitution. This is not reasonably disputed on a factual basis. You might wish there was another factual basis, as did the Court, and replace the law with will of the judges who openly seperated themselves from the objective meaning of the law that they themselves had acknowledged.
This is an abuse of judicial review. Maybe you favor such abuse in all cases?
Chairm,
"And the verbal formula by which "intimacy" is the basis for equating the same-sex category with a sexual classification category?"
I have no idea what you are saying. I have no idea with whom you are arguing, but it's not me.
There's an Alice in Wonderland feeling to this discussion, except that, unlike Alice, it's neither clever nor humorous.
Thomas,
I'm sorry that you believe me to be misrepresenting what you write. We're apparently having difficulty communicating.
One small indication: I realize that "'inaccurately describing' and 'misrepresenting' are the same thing"; indeed, I used them grammatically as virtual synonyms. The distinction in that sentence was between the objects: your views and your writing.
Here's the sequence as I see it, on point 1; perhaps you can identify where we began speaking past each other:
A. On the topic of whether equal protection requires that same-sex couples be defined into marriage, the Iowa court stated its view of how classifications for allowable discrimination (neutrally meant, as distinct from "invidious discrimination") can change.
B. In your exploration of the court's "sensible point," you described whose "judgement/prejudices" cannot be determinative for "a principled interpretation" — namely, the people, the legislature, and the judges themselves.
C. I changed "judgement/prejudices" to "personal views" in order to draw the necessary distinction between the two words that you elide and to exclude the negative connotation of "prejudices." I also added in the authors of the XIVth Amendment, because their views on same-sex marriage would have been unwaveringly traditional by today's standards.
D. You agreed to all but the last, which you stated you'd never said, and which I never claimed that you had, the authors' being a category that I added on the grounds of obviousness. You were very emphatic in your opposition to this group's inclusion.
E. To clarify your objection, I posed my "are you now saying" question.
Where did we begin missing each other?
On the second point: The entire discussion, on this matter, is what the boundaries of judicial review are. As I and others have pointed out in this discourse, the Iowa court is not presuming to review a new notion introduced by the Iowa legislature, but the time-immemorial definition of marriage as an opposite-sex affair. I may have been too extreme in my language, but I didn't intend to imply simplicity in a "more or less mechanical" application of "explicit laws." Explicit laws can contradict, circumstances can change, and so on. If "judicial review" is elevated to the point of a judiciary's reworking of baseline vocabulary not on the grounds that the vocabulary has actually changed in the society, and not on the grounds that legislators have changed it, then it's hardly "review" at all.
(And wasn't, by the way, judicial review of laws with reference to the Constitution a function of Marbury v. Madison in 1803?)
Lastly, I must flatly refuse to agree not to refer to your commentary here and elsewhere when I think there's an interesting point to be made.
Joe,
The age of consent question is still a gray area. Most states are pretty close in age, so it doesn't become much of an issue. I know there have been cases in which a post-facto marriage has mitigated prosecution for statutory rape. In any case, the marriage itself is not invalidated (although some states require parental consent for the marriage) by a charge of statutory rape.
That raises the key difference: Such marriages still fall under the definition of the term as a relationship between a man and a woman.
Thomas, I referred to your comment at April 4, 2009 6:12 PM.
In your remarks you cited a standard: "after you make a judgment, then you must formulate the reason for your judgment…into a verbal formula."
I also referred to the Iowa Court's opinion that pointed to "intimacy" when it proposed that the marriage statute classified by sexual orientation.
Now, can you please cite the verbal formula that the Court used that would make a legal requirement of "intimacy" the decisive factor in this case?
If you cannot (and the Court did not), then, as per your quoted standard: "you have to see if that makes sense, if it's logical, if it's fair, if it accords with the law, if it accords with the Constitution…. And if at any point only this process you think you're wrong, you have to go back and do it all over again."
You'd agree, would you not, that an abuse of judicial review is an injustice?
Two points --
Joe --
I think you are right that SCOTUS will ultimately be confronted with this issue in the context of full faith and credit and Bill Clinton's defense of marriage act. It's difficult to predict what SCOTUS will do without knowing the procedural context of the case that it will ultimately confront.
Justin and Prof. Schmeling --
Keep in mind that while the understanding of the phrase "equal protection" in the 1860s might have some bearing on application of the 14th Amendment, the Iowa court here was dealing with Iowa's Equal Protection Clause, not the federal one.
Brassband,
Thank you for the correction. I moved to quickly from the specific to the general.
I imagine the point still stands that the authors of the clause were highly unlikely to believe themselves to be opening a pathway for homosexuals to change the definition of marriage.
The fivethirtyeight.com take on this issue is must reading.
Before questioning his conclusions or methodology, remember that he predicted California voters would pass Prop 8 with 52.4 percent of the vote.
While the Trial Court had decided on the basis of classification by sex, the Supreme Court decided on the basis of classification by sexual orientation.
Indeed the Trial Court noted that the marriage statute had been amended in the wake of the Hawai Supreme Court's view that the man-woman criterion of marrige eligibility was based on sex classification and not sexual orientation classifiction.
So, which is it, in fact? Sex or sexual orientation?
* * *
Note that the Iowa Supreme Court opinion stated:
"The benefit denied by the marriage statute — the status of civil marriage for same-sex couples — is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class."
Does that not run afoul of the refrain often heard from SSMers that correlation is not causation?
So if the supposed correlation here is not the cause of discrimination, how is it that the Court decided it was the cause of discrimination?
If, instead, the correlation points to effect and only effect, please reconcile that with the rest of the Court opinion which refers to the marriage statute as a ban.
The test here is for SSMers to apply a principled basis that is consistent rather than an exercise in moving of goalposts.
Justin,
Sorry for the delay. Life got busy.
We may be missing each other at several points, but two stand out.
1. You say, " I also added in the authors of the XIVth Amendment, because their views on same-sex marriage would have been unwaveringly traditional by today's standards......" "D. You agreed to all but the last, which you stated you'd never said, and which I never claimed that you had, the authors' being a category that I added on the grounds of obviousness. You were very emphatic in your opposition to this group's inclusion."
Again, I disagree that I "opposed this group's inclusion". In making the general point about the relationship of equal protection to "societal values", I was very careful not to specify the means of discovering the amendment's "true meaning", whether that be original intent (or "original understanding" ...Brassband will appreciate the distinction) or something else. I definitely did not exclude original understanding. Nor would I.
I did note that folks who rely EXCLUSIVELY on original understanding run into a serious problem: certain important cases (Brown v. Board in particular) can't be justified in this way. Originalists will have to choose to a) abandon originalism as the sole source of meaning of the 14th Amend., b) make originalism so flexible in meaning that it becomes subject to the same accusations of subjectivity that originalists level at others or c) jettison Brown. The latter option is so unpalatable that almost nobody is willing to do it.
2. You say, "A. On the topic of whether equal protection requires that same-sex couples be defined into marriage,"
If you read what I wrote on RIF, you'll see that I never talk about the substance of the Iowa decision. I was making a general point about equal protection which had nothing to do with same-sex marriage in particular. That was quite deliberate.
As a side note: you say, "(And wasn't, by the way, judicial review of laws with reference to the Constitution a function of Marbury v. Madison in 1803?)"
Not really, though that's often said. Judicial review was well-understood and accepted before Marbury. Federalist 78 is just one of the sources that indicates this. MvM was the just the first actual exercise of Judicial Review. (Even that's debatable, but that's a story for another time).
Thomas, a decision against race-based segregation can indeed be achieved through robust orignalism and without the judicial activism that you appear to support when it comes to SSM.
If you rely on the example of Brown v Brown, you rely on an abuse of judicial review.
I would gladly jettision the poor reasoning of Brown because that opinion was an exercise in endgaming, not judicial interpretation of the constitution. It is lousy precedent and encourages the sort of nonsense that you seem to think is the model for the modern judicial role.
Judicial activism is not one and the same as judicial review. Not by a very long shot. Unfortunately, opinons like Brown have been used to undermine good governance via an independent and self-restrained judiciary.
If the judiciary will not show self-restraint, then, it will have to be shown restraint. The mechanism for this?
I dunno. But it would be terrific if something like a Grand Jury of common citizens could be empowered to subpeona Justices to query them on written opinions. Not as an exercise in overturning such opinions, but more like a sort of Question Period like in the parliamentary tradition. There are some questions that the Iowa Justices ought to be asked. And that would help set the stage for any consideration of constitutional amendments -- pro and con.
Chairm,
So a "sufficiently robust originalism" can can reach a result, like Brown, that was pretty clearly not intended by the framers or ratifers of the amendment? That's a good trick. Maybe "robust" is not the best word here….I'd say "slippery" or "squishy".
I can understand why originalists want to hang onto Brown, Loving and a score of other decisions, but I'm not convinced that they can do so consistently. Once you let origininalism get flexible enough to accommodate these results, you're open to the charge that you're picking and choosing results that you like. That kind of subjectivity is exactly what originalism is supposed to avoid.
You've made the following statements in response to what I've written here:
" encourages the sort of nonsense that you seem to think is the model for the modern judicial role."
"You would depend utterly on an axiomatic belief and the nonauthority of the judiciary to make policy; and not the interpretation of the law by an independent judicary restrained by the rule of law."
" the judicial activism that you appear to support when it comes to SSM."
You'll note that I haven't responded to these, because nothing that I've written here or on RIF supports your making them.
Thomas, just because you might be endgaming does not mean that I must follow your example.
I favor the process of judicial reasoning that adheres to the written constitution and which maintains the legitimacy text as approved through the will of the governed.
A thoroughgoing originalism does not throw that into the dustbin for the sake of manufacturing a desired result.
The temptation for a judge to do so may be understandable on an emotional level, but it is not justifiable in terms of good governance.
* * *
You listed three points I made earlier. You claim that that nothing you've written here supports those points.
1. You emphasized Brown's outcome rather than its reasoning. It produced lousy precent and as such has been a poor model for the judicial role.
Why you think that I, when making that observation, should depend on your comments is really not very clear.
But now that you mention it, do you think the reasoning in Brown provides a good model for the judicial role? Your comments suggest that you do.
But maybe you favor the result but not the reasoning and the example it set for the judicial role? If so, why?
2. In response to your mention of the need for a judge to provide a sound verbal formula, I asked about the Iowa Court's reliance on "intimacy" when it interpreted the marriage statute and the state constitution.
There is no intimacy requirement. There is no sexual orientation requirement. Neither of these is defined in the law nor in the state constitution. The supposed connection between intimacy and orientation was not made explicit.
Odd, because the Court's opinion was supposedly trying to make explicit what was only implied in the instruments it was examinging -- the statute and the constitution.
The Court's opinion is an example of starting with a desired result, however, it failed your proposed standard -- it did not provide sound judicial reasoning (or even a verbal formula) that can maintain the legitimacy of the written constitution and of the judicial role.
The Court did not show an actual conflict between the man-woman criterion of the marriage statute and the equal protection provision in the state's written constitution.
It showed it perceived a conflcit between the status quo and the Court's desired result.
3. Do you not support judicial activism when it comes to the SSM issue? Based on your comments, especially your view of Brown, it would appear so. Please confirm or clarify. Thanks.
I'm still waiting for any judge, politician, or clergyman to convince me gay marriage is a threat to my hetero marriage.
That's what it all comes down to for me. Not the bloviation from either side. It's that simple.
Rhody, do you believe that your marriage is outside the social institution of marriage?
Or is it just a private arrangement that each person defines for private purposes?
* * *
Also, when a man becomes a husband, he is presumed the father of children born to his wife during their marriage. Indeed, when they say "I do", the bride and groom consent to this central aspect of the conjugal relationship.
It is based on the two-sexed nature of human procreation. It is no a rule that forces people to procreate, but it provides solid contingency (and encourages) responsible procreation. It unites fatherhood and motherhood -- on many levels but all arising from the same public significance of the prototypical sexual relationship of husband and wife.
This cannot apply to the one-sexed arrangement -- call it whatever you might.
Yet, based on SSM argumentation's equality claim, if this does not fit SSM it must not be central to marriage and must not be permited as a form of sexual orientation discrimination within the "gender neutral" marriage law. Or somelthing like that.
Since most married people do have children, most husbands would no longer be presumed the fathers.
Even if only a minority of married people have children, this would adversely effect their marriages.
And the special status of marriage as per this important presumption of paternity would be diminished such that third parties would be empowered to challenge paternity regardless of the parental status of the husband.
Government intrusions would be inevitable and far-reaching. No line could hold for long since SSM makes os much of making marriage a private arrangement that happens to get the approbation of society based on "love" even in contradiction of the core public meaning of the social institution.
We'd very probably end-up rewriting the presumption to be a nonsexual presumption. That is, since nothing that an all-male or an all-female arrangement might do sexually can be the basis for parental status, some other rule must be cobbled together to fit those arrangements as well as the male-female relationship.
Maybe the courts would do the rewrite for us. Maybe the courts would order the legislatures to work out the details. Maybe none of this would be pushed by the same people who support SSM, but I think the trends are clear enough.
* * *
If you are a married father, then, you'd lose this and a lot more.
If you are a married mother, then, you lose this and a lot more.
If you plan to marry and to have children, as most people do, then, you lose this -- pre-emptively -- and are thus softened up to lose even more.
Of course, if you don't care about this fundamental presumption -- one of the strongest legal aspects of marriage in our legal system -- that would probably appeqr to be a neutral effect of the SSM project. Maybe even a positive effect of some sort. I dunno.
It might not direclty effect your private marriage, but it would effect the public meaning of marriage for millions of husbands, wives, and their children.
* * *
Plus, since the SSM argumentation is, at is very core, about placing identity politics above marriage and above the principles of self-governance, we'd be inviting all kinds of mischief -- especially more judicial abuse of judicial review.
It is strange that SSMers try to attach their claims to the racist analogy. Racist identity politics proved to be one of the most reliable sources of injustice, violence, and political corruption. Even if one truly believed that gay identity politics is much more benign, one must take into account the SSM argumentation's emotivism and general "all means justify the end" approach to public discourse and constitutional jurisprudence.
What is turned now on marriage defenders will inevitably be turned later on those who imagine themselves on the side of civil rights and more, not less, liberty and more, not less, secured freedom of conscience.
So even if you are not married, or have no interest, at least now, in the special status of marriage in our civil society, you'd stand to lose a lot when identity politics moves the Government's hand to declare ownership of the foundational social institution of civil society.
What God put together, no argument over SSM will tear asunder.
As for kids...many kids successfully overcame their parents' racism. They'll overcome their parents' hysterics over SSM, too.
So Rhody, your question has been answered in a nonreligous way and you respond by pointing to your belief about what God will or will not do?
Pressing into marriage law your sectarian view would be unjust even by your own stated standard. Another harm.
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It's not just those liberal coastal states anymore! Flyover America's caught The Gay. Maybe not ALL churches in Iowa oppose it.
Posted by: rhody at April 4, 2009 11:38 AMGuess the anti-SSM folks will have to start reading up on housing options in the fundamentalist Muslim world. After all, there's not much difference between that and righty evangelicalism.
Utah remains an option, of course - all those beautiful SLC suburbs.
Ah, Rhody, so good of you to preemptively scuttle a higher-level conversation. I'll resist making the rejoinder that progressive judicial activism is not without its similarities to Islamic dictatorships.
Posted by: Justin Katz at April 4, 2009 11:49 AMI'd add that the dishonesty that I mention in the post is also to be found in your insinuation that a judicial ruling somehow expresses the views of the people of Iowa, whose views the judges summarily dismissed.
Posted by: Justin Katz at April 4, 2009 11:52 AMit is anti-democratic to keep you from discriminating? Now that is just sad.
Posted by: Pat Crowley at April 4, 2009 12:49 PMJustin,
Thanks for the rehash of your arguments here. But what I find more interesting in your post is the curious use of language for a "conservative" blog.
I have a hard time figuring out if you are an anarchist or an old school socialist. Your free form use of tropes like the "elite" class subjugating the common man mixed with your half-concealed calls for revolution could be many things -- but it is certainly not the writing of a conservative.
Your visceral hatred of an independent judiciary fits nicely with the critiques of the early 20th century socialists, and even better with the programs of the totalitarians of that era. You must read the speeches of Franco quite often.
As for the substance of your post here, it's all been said before. You refuse to acknowledge that this court has any legitimate argument at all (unanimous decision by a court hardly considered lefty), so you rail against the elites.
As for the democratic process, you always fail to note that the California legislature authorized SSM twice, only to be vetoed by the Governor. The Vermont legislature is now going through a similar debate. Popular decision making in Europe figures even less in your analysis (of course, as a modern "conservative" you couldn't cite to those foreigners without losing some cred with your fellow travelers).
Oh, and I shouldn't forget to complement you on the nice apocalyptic close. Adds some real spice of anarchist zeal to your screed.
Posted by: Pragmatist at April 4, 2009 3:03 PMCrowley and Pragmatist: sides of a coin.
Crowley won't (or can't) address arguments that pull him beyond the reach of his comfortable talking points, and Pragmatist is so thoroughly concerned with binding others in the incidentals of language and emphasis — in combining pre-written Rhetoric Cards #283 and #176 — that he utterly fails to acknowledge that different standards apply to different topics, times, and governmental mechanisms.
Posted by: Justin Katz at April 4, 2009 3:42 PMPragmatist and other SSMers,
Do you favor the abuse of judicial review (i.e. the process)? I'd hope not. Maybe you might even "hate" such abuse.
This Iowa court acknowledged that the marriage statute did NOT expressly create a classification based on sexual orientation.
Instead, the court opinion proposed that the "same-sex" category was proxy for a classification based on "intimacy" that featured gayness.
But it did not cite a state imposed legal requirement for "intimacy" nor did it specify the kind (and quantity) of "intimacy".
Pehaps we could suppose "sexual intimacy" was the key feature that for some reason the Court decided it would leave implied only.
But that would be society lending a hand to the judiciary, right? Filling-in the blank even when the Court was supposedly doing the heavy lifting in making explicit what was supposedly only implicit in the effect of the statute.
There is no legal requirement that would make "sexual intimacy" mandatory in the relationship of persons of the same sex. So this key feature is less implied than conjured.
And THAT work of conjuring was done entirely by the Court and not by lawmakers nor by the People nor by the social institution of marriage. Interestingly, the Court did not even work up a sweat in this act of high-priestly-intervention.
On the other hand, the legal presumption of paternity is what makes of the conjugal relationship a sexual type of relationship between a man and a woman. This makes of marriage a public relationship with societial significance meriting a special status for the coherent whole -- for the social institution that the law affirms rather than creates.
But this legal presumption (and its criteria for rebuttal), based on custom and tradition as reflective of the two-sexed nature of humankind, is irrelevant to the same-sex arrangement regardless of the sexual orientation and attractions -- and "sexual intimacy" -- of the participants.
No presumption of paternity applies to the all-female arrangement; no such presumption applies based on whatever an all-male arrangement might do sexually; dittoe for the all-female arrangement. Some other presumption based on state licesning might be concocted, but it would not be based on "sexual intimacy" that might be defined by gayness.
The marital presumption of paternity is highly relevant in terms of the two-person limitation (i.e. one man and one woman, two sexes), and the lines drawn based on relatedness (re incestuous sexual relations), and the criteria that determine capacity to consent to the conjugal relationship's most public aspects -- the contingency for responsible procreation and the integration of the sexes.
So, is the marital presumption of paternity no longer marital since it does not fit the one-sexed arrangement in Iowa? Is it unconstitutional because it effectively, by the Court's stated standard, discriminates on the basis of sexual orientation (exclusively to the "straight" and not at all to the "gay" orientation)? If this is skipped by the Court opinion, how then to deal with the equal protection claim in the context of the marriage definition which Court strongly implied was based on sexual intimacy?
The Court's opinion is like a lost gymn sock left hanging on the rail of the lockerroom shower stall.
Posted by: Chairm at April 4, 2009 4:01 PMRIP Harvey Milk
Mr. Milk
I can only hope that Saint Peter provides you with internet access.
You must be smiling right now
Signed your friends on the Left,
Posted by: RIP Harvey Milk at April 4, 2009 5:09 PMand a few on the "RIGHT"
Justin,
I'm honored that my remarks were raised from the relative obscurity of RIF's comments section to appear on your front page. I must confess that, had I foreseen this, I would have spent more time editing and trying to say things more artfully. Still, I'm satisfied that I was able to capture the essence of the Iowa Supreme Court's meaning in the two sentences that Brassband quoted, and that meaning is an eminently reasonable view of the relation between "public sentiment" and judicial duty.
Though I am sure you would not intentionally misrepresent my views, I do think your presentation of them is somewhat misleading, I find it necessary to offer two clarifications.
1. You have misrepresented my views on the role of "original intent".
Right. They should not. I think you agree.
Right, they should not, and I think you'll agree here too. There's no point in having a constitution if the constitutionality of laws is to be judged by the views of those enacting the law.
Right, they should not. See above.
Stop. Right. There. I never said this. At all. I purposely used 'scare quotes' in referring to the "true meaning" of a constitutional provision to reflect the fact that this "true meaning" is likely to be a contested subject. Your inclusion of this distorts what I said and attributes to me a position that I did not take, and would not take if pressed. [For more, if you care, see my upcoming response to Brassband on RIF]
2. You've somehow mistaken my comments on the "judicial hunch" (which, by the way, appeared in a different thread than the above) as a justification for judicial decisions, when it is actually a description of how decisions are arrived at. This distinction is important. The original notion of the "judicial hunch" is attributed to Judge Jerome Frank, but here is (Reagan appointee) Anthony Kennedy's account of approximately the same process.
FWIW, that very last paragraph should not be indented. That's me, not Kennedy
Posted by: Thomas Schmeling at April 4, 2009 6:17 PMOld prejudices die hard.
Posted by: rhody at April 4, 2009 7:01 PMA court decision is nice.
A legislative victory is better.
A victory at the ballot box (as may happen in California next time) would be the ultimate.
Remember, Justin, judicial activism is in the eye of the beholder. And if you're expecting every church in Iowa to join your jihad, you just might be disappointed.
The old tropes about areas that support SSM being hotbeds of Hollywood liberalism don't apply in Iowa.
Hold on Justin -- did you just say that "different standards apply to different topics, times, and governmental mechanisms"?
That is just too rich. Really. Did you read that before you posted? I know blogging is an exercise in speed writing, but how did you let that one slip?
Given that statement, I await your switch to this side of the SSM debate.
Posted by: Pragmatist at April 4, 2009 7:22 PMThomas,
I may have inaccurately described your views, but I don't see that I've misrepresented what you've written. I'd point out that I've presented your stated point of view pretty much in full.
1. Are you now saying that you believe the politicos fresh from the experience of the Civil War intended their notion of equal protection to apply in such a way as to invalidate the ages-old definition of marriage and to erase the presumption of mutual childbearing and rearing from the institution?
Are you now denying that you hold there to be an application of equal protection that adheres to some ideal, the interpretation of which you place wholly in the hands of the courts? How is that not sacerdotal?
The bottom line is that equal protection claims can be made in every instance in which classifications may be erased, and the Iowa court (and, it still appears, you) believe that a handful of unelected judges should have the power of erasure.
2. No, actually, the "judicial hunch" appeared in the same thread. I think you're being a bit defensive in your description of my handling of it. If judicial decisions are indeed made in that way, as I've little doubt that they are, then the finding has implications for how we structure our government. If, that is, judges truly rely on their own prejudices and their rarified comprehension of rulings and laws to interpret vague concepts with broad implications — rather than more or less mechanically applying explicit laws — then we need to limit the scope of decisions that the judiciary can appropriately make.
Posted by: Justin Katz at April 4, 2009 7:29 PMAgain, Pragmatist, you evince your everywhere-or-nowhere limitations. Different standards do apply in different circumstances. There are mechanisms for choosing and for enacting, and moreover, there are cases in which difference is not advisable.
The fact that society can change terms over time and across boundaries does not instantly mean that all changes should be pursued, much less pursued by any means possible.
Posted by: Justin Katz at April 4, 2009 7:34 PMDishonesty of an Undemocratic Movement?
Every three full moons,or so, Justin
post one of his anti-gay rants.
The vote in Vermont 22-4 and 95-54
is undemocratic ??????
Almost veto-proof
Read between the lines of these anti-gay
Posted by: Vermonty at April 4, 2009 7:54 PMrants, they are not about SSM, they are
just anti-gay rubish.
You're wrong. So is Rhody with his allusions to my "jihad."
And I wasn't implicating Vermont, was I? I'm arguing against the principle of "by any means possible," which wipes out many more social structures than the one that is ostensibly its central target.
Posted by: Justin Katz at April 4, 2009 8:03 PMJustin,
As much as I don't like judicial activism,the SSM issue will have to be decided by SCOTUS because of the applicability of the full faith and credit clause of the Constitution.
Posted by: joe bernstein at April 4, 2009 8:33 PMSSM is not the only issue here-a legal marriage in one state between a male and female might be deemed statutory rape in another state.
Any lawyers here with an opinion on that one?
I didn't throw that out as a stunt- I have wondered about it since RI has a much lower age of consent than many other states.
Thomas quoted: "But after you make a judgment, then you must formulate the reason for your judgment…into a verbal formula."
What is the verbal formula by which "intimacy" is the decisive feature in the marriage statutes?
And the verbal formula by which "intimacy" is the basis for equating the same-sex category with a sexual classification category?
You stated this standard and whether it is a hunch or not the standard is not connected to the marriage statute nor to the state constitution of Iowa.
You would depend utterly on an axiomatic belief and the nonauthority of the judiciary to make policy; and not the interpretation of the law by an independent judicary restrained by the rule of law.
The Court acknowledged there was no sex classification in the marriage statute nor in the state Constitution. This is not reasonably disputed on a factual basis. You might wish there was another factual basis, as did the Court, and replace the law with will of the judges who openly seperated themselves from the objective meaning of the law that they themselves had acknowledged.
This is an abuse of judicial review. Maybe you favor such abuse in all cases?
Posted by: Chairm at April 4, 2009 8:39 PMChairm,
"And the verbal formula by which "intimacy" is the basis for equating the same-sex category with a sexual classification category?"
I have no idea what you are saying. I have no idea with whom you are arguing, but it's not me.
There's an Alice in Wonderland feeling to this discussion, except that, unlike Alice, it's neither clever nor humorous.
Posted by: Thomas Schmeling at April 4, 2009 8:50 PMThomas,
I'm sorry that you believe me to be misrepresenting what you write. We're apparently having difficulty communicating.
One small indication: I realize that "'inaccurately describing' and 'misrepresenting' are the same thing"; indeed, I used them grammatically as virtual synonyms. The distinction in that sentence was between the objects: your views and your writing.
Here's the sequence as I see it, on point 1; perhaps you can identify where we began speaking past each other:
A. On the topic of whether equal protection requires that same-sex couples be defined into marriage, the Iowa court stated its view of how classifications for allowable discrimination (neutrally meant, as distinct from "invidious discrimination") can change.
B. In your exploration of the court's "sensible point," you described whose "judgement/prejudices" cannot be determinative for "a principled interpretation" — namely, the people, the legislature, and the judges themselves.
C. I changed "judgement/prejudices" to "personal views" in order to draw the necessary distinction between the two words that you elide and to exclude the negative connotation of "prejudices." I also added in the authors of the XIVth Amendment, because their views on same-sex marriage would have been unwaveringly traditional by today's standards.
D. You agreed to all but the last, which you stated you'd never said, and which I never claimed that you had, the authors' being a category that I added on the grounds of obviousness. You were very emphatic in your opposition to this group's inclusion.
E. To clarify your objection, I posed my "are you now saying" question.
Where did we begin missing each other?
On the second point: The entire discussion, on this matter, is what the boundaries of judicial review are. As I and others have pointed out in this discourse, the Iowa court is not presuming to review a new notion introduced by the Iowa legislature, but the time-immemorial definition of marriage as an opposite-sex affair. I may have been too extreme in my language, but I didn't intend to imply simplicity in a "more or less mechanical" application of "explicit laws." Explicit laws can contradict, circumstances can change, and so on. If "judicial review" is elevated to the point of a judiciary's reworking of baseline vocabulary not on the grounds that the vocabulary has actually changed in the society, and not on the grounds that legislators have changed it, then it's hardly "review" at all.
(And wasn't, by the way, judicial review of laws with reference to the Constitution a function of Marbury v. Madison in 1803?)
Lastly, I must flatly refuse to agree not to refer to your commentary here and elsewhere when I think there's an interesting point to be made.
Posted by: Justin Katz at April 4, 2009 10:48 PMJoe,
The age of consent question is still a gray area. Most states are pretty close in age, so it doesn't become much of an issue. I know there have been cases in which a post-facto marriage has mitigated prosecution for statutory rape. In any case, the marriage itself is not invalidated (although some states require parental consent for the marriage) by a charge of statutory rape.
That raises the key difference: Such marriages still fall under the definition of the term as a relationship between a man and a woman.
Posted by: Justin Katz at April 4, 2009 11:21 PMThomas, I referred to your comment at April 4, 2009 6:12 PM.
In your remarks you cited a standard: "after you make a judgment, then you must formulate the reason for your judgment…into a verbal formula."
I also referred to the Iowa Court's opinion that pointed to "intimacy" when it proposed that the marriage statute classified by sexual orientation.
Now, can you please cite the verbal formula that the Court used that would make a legal requirement of "intimacy" the decisive factor in this case?
If you cannot (and the Court did not), then, as per your quoted standard: "you have to see if that makes sense, if it's logical, if it's fair, if it accords with the law, if it accords with the Constitution…. And if at any point only this process you think you're wrong, you have to go back and do it all over again."
You'd agree, would you not, that an abuse of judicial review is an injustice?
Posted by: Chairm at April 5, 2009 2:03 AMTwo points --
Joe --
I think you are right that SCOTUS will ultimately be confronted with this issue in the context of full faith and credit and Bill Clinton's defense of marriage act. It's difficult to predict what SCOTUS will do without knowing the procedural context of the case that it will ultimately confront.
Justin and Prof. Schmeling --
Keep in mind that while the understanding of the phrase "equal protection" in the 1860s might have some bearing on application of the 14th Amendment, the Iowa court here was dealing with Iowa's Equal Protection Clause, not the federal one.
Posted by: brassband at April 5, 2009 8:27 AMBrassband,
Thank you for the correction. I moved to quickly from the specific to the general.
I imagine the point still stands that the authors of the clause were highly unlikely to believe themselves to be opening a pathway for homosexuals to change the definition of marriage.
Posted by: Justin Katz at April 5, 2009 8:32 AMThe fivethirtyeight.com take on this issue is must reading.
Posted by: rhody at April 5, 2009 9:26 AMBefore questioning his conclusions or methodology, remember that he predicted California voters would pass Prop 8 with 52.4 percent of the vote.
While the Trial Court had decided on the basis of classification by sex, the Supreme Court decided on the basis of classification by sexual orientation.
Indeed the Trial Court noted that the marriage statute had been amended in the wake of the Hawai Supreme Court's view that the man-woman criterion of marrige eligibility was based on sex classification and not sexual orientation classifiction.
So, which is it, in fact? Sex or sexual orientation?
* * *
Note that the Iowa Supreme Court opinion stated:
"The benefit denied by the marriage statute — the status of civil marriage for same-sex couples — is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class."
Does that not run afoul of the refrain often heard from SSMers that correlation is not causation?
So if the supposed correlation here is not the cause of discrimination, how is it that the Court decided it was the cause of discrimination?
If, instead, the correlation points to effect and only effect, please reconcile that with the rest of the Court opinion which refers to the marriage statute as a ban.
The test here is for SSMers to apply a principled basis that is consistent rather than an exercise in moving of goalposts.
Posted by: Chairm at April 5, 2009 11:41 AMJustin,
Sorry for the delay. Life got busy.
We may be missing each other at several points, but two stand out.
1. You say, " I also added in the authors of the XIVth Amendment, because their views on same-sex marriage would have been unwaveringly traditional by today's standards......" "D. You agreed to all but the last, which you stated you'd never said, and which I never claimed that you had, the authors' being a category that I added on the grounds of obviousness. You were very emphatic in your opposition to this group's inclusion."
Again, I disagree that I "opposed this group's inclusion". In making the general point about the relationship of equal protection to "societal values", I was very careful not to specify the means of discovering the amendment's "true meaning", whether that be original intent (or "original understanding" ...Brassband will appreciate the distinction) or something else. I definitely did not exclude original understanding. Nor would I.
I did note that folks who rely EXCLUSIVELY on original understanding run into a serious problem: certain important cases (Brown v. Board in particular) can't be justified in this way. Originalists will have to choose to a) abandon originalism as the sole source of meaning of the 14th Amend., b) make originalism so flexible in meaning that it becomes subject to the same accusations of subjectivity that originalists level at others or c) jettison Brown. The latter option is so unpalatable that almost nobody is willing to do it.
2. You say, "A. On the topic of whether equal protection requires that same-sex couples be defined into marriage,"
If you read what I wrote on RIF, you'll see that I never talk about the substance of the Iowa decision. I was making a general point about equal protection which had nothing to do with same-sex marriage in particular. That was quite deliberate.
As a side note: you say, "(And wasn't, by the way, judicial review of laws with reference to the Constitution a function of Marbury v. Madison in 1803?)"
Not really, though that's often said. Judicial review was well-understood and accepted before Marbury. Federalist 78 is just one of the sources that indicates this. MvM was the just the first actual exercise of Judicial Review. (Even that's debatable, but that's a story for another time).
Posted by: Thomas Schmeling at April 7, 2009 1:20 AMThomas, a decision against race-based segregation can indeed be achieved through robust orignalism and without the judicial activism that you appear to support when it comes to SSM.
If you rely on the example of Brown v Brown, you rely on an abuse of judicial review.
I would gladly jettision the poor reasoning of Brown because that opinion was an exercise in endgaming, not judicial interpretation of the constitution. It is lousy precedent and encourages the sort of nonsense that you seem to think is the model for the modern judicial role.
Judicial activism is not one and the same as judicial review. Not by a very long shot. Unfortunately, opinons like Brown have been used to undermine good governance via an independent and self-restrained judiciary.
If the judiciary will not show self-restraint, then, it will have to be shown restraint. The mechanism for this?
I dunno. But it would be terrific if something like a Grand Jury of common citizens could be empowered to subpeona Justices to query them on written opinions. Not as an exercise in overturning such opinions, but more like a sort of Question Period like in the parliamentary tradition. There are some questions that the Iowa Justices ought to be asked. And that would help set the stage for any consideration of constitutional amendments -- pro and con.
Posted by: Chairm at April 7, 2009 2:25 AMChairm,
So a "sufficiently robust originalism" can can reach a result, like Brown, that was pretty clearly not intended by the framers or ratifers of the amendment? That's a good trick. Maybe "robust" is not the best word here….I'd say "slippery" or "squishy".
I can understand why originalists want to hang onto Brown, Loving and a score of other decisions, but I'm not convinced that they can do so consistently. Once you let origininalism get flexible enough to accommodate these results, you're open to the charge that you're picking and choosing results that you like. That kind of subjectivity is exactly what originalism is supposed to avoid.
You've made the following statements in response to what I've written here:
" encourages the sort of nonsense that you seem to think is the model for the modern judicial role."
"You would depend utterly on an axiomatic belief and the nonauthority of the judiciary to make policy; and not the interpretation of the law by an independent judicary restrained by the rule of law."
" the judicial activism that you appear to support when it comes to SSM."
You'll note that I haven't responded to these, because nothing that I've written here or on RIF supports your making them.
Posted by: Thomas Schmeling at April 7, 2009 10:52 AMThomas, just because you might be endgaming does not mean that I must follow your example.
I favor the process of judicial reasoning that adheres to the written constitution and which maintains the legitimacy text as approved through the will of the governed.
A thoroughgoing originalism does not throw that into the dustbin for the sake of manufacturing a desired result.
The temptation for a judge to do so may be understandable on an emotional level, but it is not justifiable in terms of good governance.
* * *
You listed three points I made earlier. You claim that that nothing you've written here supports those points.
1. You emphasized Brown's outcome rather than its reasoning. It produced lousy precent and as such has been a poor model for the judicial role.
Why you think that I, when making that observation, should depend on your comments is really not very clear.
But now that you mention it, do you think the reasoning in Brown provides a good model for the judicial role? Your comments suggest that you do.
But maybe you favor the result but not the reasoning and the example it set for the judicial role? If so, why?
2. In response to your mention of the need for a judge to provide a sound verbal formula, I asked about the Iowa Court's reliance on "intimacy" when it interpreted the marriage statute and the state constitution.
There is no intimacy requirement. There is no sexual orientation requirement. Neither of these is defined in the law nor in the state constitution. The supposed connection between intimacy and orientation was not made explicit.
Odd, because the Court's opinion was supposedly trying to make explicit what was only implied in the instruments it was examinging -- the statute and the constitution.
The Court's opinion is an example of starting with a desired result, however, it failed your proposed standard -- it did not provide sound judicial reasoning (or even a verbal formula) that can maintain the legitimacy of the written constitution and of the judicial role.
The Court did not show an actual conflict between the man-woman criterion of the marriage statute and the equal protection provision in the state's written constitution.
It showed it perceived a conflcit between the status quo and the Court's desired result.
3. Do you not support judicial activism when it comes to the SSM issue? Based on your comments, especially your view of Brown, it would appear so. Please confirm or clarify. Thanks.
Posted by: Chairm at April 7, 2009 9:19 PMI'm still waiting for any judge, politician, or clergyman to convince me gay marriage is a threat to my hetero marriage.
Posted by: rhody at April 9, 2009 12:44 AMThat's what it all comes down to for me. Not the bloviation from either side. It's that simple.
Rhody, do you believe that your marriage is outside the social institution of marriage?
Or is it just a private arrangement that each person defines for private purposes?
* * *
Also, when a man becomes a husband, he is presumed the father of children born to his wife during their marriage. Indeed, when they say "I do", the bride and groom consent to this central aspect of the conjugal relationship.
It is based on the two-sexed nature of human procreation. It is no a rule that forces people to procreate, but it provides solid contingency (and encourages) responsible procreation. It unites fatherhood and motherhood -- on many levels but all arising from the same public significance of the prototypical sexual relationship of husband and wife.
This cannot apply to the one-sexed arrangement -- call it whatever you might.
Yet, based on SSM argumentation's equality claim, if this does not fit SSM it must not be central to marriage and must not be permited as a form of sexual orientation discrimination within the "gender neutral" marriage law. Or somelthing like that.
Since most married people do have children, most husbands would no longer be presumed the fathers.
Even if only a minority of married people have children, this would adversely effect their marriages.
And the special status of marriage as per this important presumption of paternity would be diminished such that third parties would be empowered to challenge paternity regardless of the parental status of the husband.
Government intrusions would be inevitable and far-reaching. No line could hold for long since SSM makes os much of making marriage a private arrangement that happens to get the approbation of society based on "love" even in contradiction of the core public meaning of the social institution.
We'd very probably end-up rewriting the presumption to be a nonsexual presumption. That is, since nothing that an all-male or an all-female arrangement might do sexually can be the basis for parental status, some other rule must be cobbled together to fit those arrangements as well as the male-female relationship.
Maybe the courts would do the rewrite for us. Maybe the courts would order the legislatures to work out the details. Maybe none of this would be pushed by the same people who support SSM, but I think the trends are clear enough.
* * *
If you are a married father, then, you'd lose this and a lot more.
If you are a married mother, then, you lose this and a lot more.
If you plan to marry and to have children, as most people do, then, you lose this -- pre-emptively -- and are thus softened up to lose even more.
Of course, if you don't care about this fundamental presumption -- one of the strongest legal aspects of marriage in our legal system -- that would probably appeqr to be a neutral effect of the SSM project. Maybe even a positive effect of some sort. I dunno.
It might not direclty effect your private marriage, but it would effect the public meaning of marriage for millions of husbands, wives, and their children.
* * *
Plus, since the SSM argumentation is, at is very core, about placing identity politics above marriage and above the principles of self-governance, we'd be inviting all kinds of mischief -- especially more judicial abuse of judicial review.
It is strange that SSMers try to attach their claims to the racist analogy. Racist identity politics proved to be one of the most reliable sources of injustice, violence, and political corruption. Even if one truly believed that gay identity politics is much more benign, one must take into account the SSM argumentation's emotivism and general "all means justify the end" approach to public discourse and constitutional jurisprudence.
What is turned now on marriage defenders will inevitably be turned later on those who imagine themselves on the side of civil rights and more, not less, liberty and more, not less, secured freedom of conscience.
So even if you are not married, or have no interest, at least now, in the special status of marriage in our civil society, you'd stand to lose a lot when identity politics moves the Government's hand to declare ownership of the foundational social institution of civil society.
Posted by: Chairm at April 10, 2009 1:29 AMWhat God put together, no argument over SSM will tear asunder.
Posted by: rhody at April 10, 2009 2:55 AMAs for kids...many kids successfully overcame their parents' racism. They'll overcome their parents' hysterics over SSM, too.
So Rhody, your question has been answered in a nonreligous way and you respond by pointing to your belief about what God will or will not do?
Pressing into marriage law your sectarian view would be unjust even by your own stated standard. Another harm.
Posted by: Chairm at April 10, 2009 2:31 PM