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open discussion on fma

Ok, I'm back on the controversy wagon. I stole this whole thing verbatim from Andrew Sullivan and I'd like your comments. Note: This was not Sullivan's writing, but an email he received from a Republican lawyer. The FMA as a Trojan Horse
Now that opponents and proponents of gay marriage are all riled about the FMA its time to talk about the true impact of including a definition of marriage in the Constitution. The potential impact of inclusion of the FMA will effect every American straight or gay because the FMA is not about gay marriage, it is a dangerous Trojan Horse that could completely redefine the powers of the federal government. As an attorney who is researching this issue, let me explain to the best of my ability, why I havenít been sleeping well since Tuesday. Under the Constitution of the United States there is no express right to privacy, rather this right to be free from excessive government interference in our personal lives has arisen from Supreme Court precedent that cites the lack of regulation of intimate relationships and the protections of the bill of rights as the basis for an inference of the right to privacy. The right to privacy, according the Supreme Court is found in the penumbras and emanations of these two factors. A shadow of a right, very delicate and now threatened. By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed. As a result, decisions like Roe v. Wade, (Abortion), Griswold v. Connecticut (Birth Control), Lawrence v. Texas (Private Sexual Acts), will all be fair game for re-analysis under this new jurisprudential regime as the Constitutional foundation for those decisions will have been altered. A brilliant strategy really, with one amendment the religious right could wipe out access to birth control, abortion, and even non-procreative sex (as Senator Santorum so eagerly wants to do). This debate isnít only about federalism, itís about the reversal of two hundred years of liberal democracy that respects individuals. So why isnít anyone talking about this aspect of it?
The floor is open.

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Comments

BS. More Sullivan hyperventilating.

I think a lot of people have such strong, immediate emotional reactions to the issue that they are blinded to the more subtle points that Andrew Sullivan is making.

To inform the discussion, here is the text of the proposed amendment - lots of people seem not to have read it (web sourced, so if I am wrong on it please provide a correct cite...)

"Marriage in the United States shall consist only of the union of a man and a woman.

Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

Parker, see the note I added to the post. Sullivan didn't write this.

Oops... sorry I didn't backwalk the link - when you said you copied the whole thing, I thought I didn't need to. Shows what I get for thinking...

What are the chances of this ammendment actually being ratified?

Sorry about the OT post, but I didn't see another way to contact you.

Your sidebar links do not show up in Firefox/Win.

Adding:
.sidebody a {color:#fff;}
to your stylesheet will fix this.

Sounds to me like a lawyer who's scared out of his wits that some may not consider SCOTUS to be the final arbiter of all that should be true, good, and beautiful in the USA.

As was demonstrated on Wednesday with the execrable, anti-Papist ruling upholding the Blaine Amendments in Davey v Locke, the Federal Judiciary is shutting the door to the concerns of Evangelical Christians. Fortunately, there are options to deal with such a biased Judiciary, and the Evangelicals cannot be faulted for seeking to exercise those options. Congress has myriad ways of dealing with the Judiciary, from cutting their budget to limiting their jurisdiction.

The only reason why we even consider the Supreme Court to be such a Lord High Tribunal is because Congress figured that the Supreme Court makes it easier for them to skate. Since Congress appears to not want to take the responsibility necessary to rein in a rogue Supreme Court (and its lower courts), the people, thru the Amendment process, will have to step in.

This is almost as good as the piece that made the rounds about how Bill Clinton was going to declare martial law and never let Bush become President. It's nice to know that every side's kooky conspiracy theories are equally funny though.

Parker, something that you and Sullivan seem to be missing - the President did not endorse the "FMA" that you quoted above.

Here is what the President said (and that Rosie O'Donnell called "vile and vicious"):

Today I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

As a future attorney I can definitely see where this arguement is coming from. Personally I feel the same threat is more overt in the Patriot Act but again, people are more likely to fight obvious abuses.

Most of the repsonses have been in regards to the Musgrave (H.R. 57 I think)amendment which has the most widespread support. Interesting to note that if that particular amendment passes even domestic partnerships between heterosexuals whether they be a couple, or just roomates would also be outlawed because they contain benefits similar to marriage.

If the text quoted above is the amendment though... then that's a whole lot of nothing. States can say "Civil Unions" will be between 2 people of the same sex and "Marriage" will between 2 people of the opposite sex. So it's protecting marriage in name only it seems.

According to Oxblog, 42 sensators (36 Dems 5 Reps 1 Ind) have officially replied to their constituents that they are against any amendment to the constituion.

"A brilliant strategy really, with one amendment the religious right could wipe out access to birth control, abortion, and even non-procreative sex (as Senator Santorum so eagerly wants to do).

I have to admit, he had me seriously contemplating his argument, until I got to this sentence. Yep, it's all an insidious plot by the Religious Right to undermine the Constitution. Nobody could ever have a principled objection to gay marriage, could they? There always has to be some base motive involved. It's all part of our Master Plan to Take Over America.

So the extreme religious right want to ban any 'sexual' activity that doesn't fit their beliefs of what is natural / moral behaviour?

Nothing new in that. What is news is that now with the current executive administation, they now have lots of sympathetic ears, who are more inclined to acceed to their demands.

Though this article is a little far fetched IMHO, I agree that it is a scary proposal to have this amendment even proposed. This is another example of the Federal government taking the power away from the states.

I am confident that such an amendment will not pass, however to suggest it is a slap in the face to every state.

So again, the government grows larger, and gets its fingers in everyoneís pies.

And as an addendum to my previous comment, I'll add that I am freakin' sick and tired of activist courts and activist judges who ride roughshod over the will of the people, and I see this gay marriage debacle as the latest in a long line of such abuses. THAT is the main reason I am opposed to gay marriage. If that makes me a homophobe, then I accept the moniker.

Nothing in the proposed admendment outlaws gay marriage. It simpily states that the only marriage that every state is required to recognize is man-women. Any other marriages will be state specific. What happens when a married gay couple in Massachusetts gets a job transfer to say, Utah, is an open question that might need to be addressed.

That doesn't make the admendment a good idea. However, I think the attorney in question here might want to readjust his tin foil hat.

I doubt that this is the actual intent of any FMA -- but, given the law of unintended consequences (which seems to be the usual for constitutional matters), it's certainly food for thought.

Wait a second...

You mean there is no expressed right to privacy in the Constitution? And the only reason that a "right to privacy" exists as precedent is because SCOTUS read between the lines? I'm shocked, shocked!!

Okay enough sarcasm. First, the author is historically dishonest. It's not "two hundred years ... that respects individuals"; if that was true, the 13th, 14th, 15th and 19th Amendments wouldn't have been needed. It's only in the last 50 or so years that, as Brad S put it,"SCOTUS [is] to be the final arbiter of all that should be true, good, and beautiful in the USA".

If we have to review those decisions that this "Republican lawyer" (yeah, right!) fears may be overturned GOOD. We need to review these and correct these goofy laws (e.g. the law that Lawrence v. Texas overturned) the right way; through the legislative process.

The extreme right and the extreme left want to dismantle liberal democracy. Theyíve been making attempts for years, itís nothing new.

The letter sounds like it was written by someone who thinks that every sniffle and mole indicates cancer, and the fact that loony extremists are totally outnumbered by moderates means that this stupid amendment shouldnít pass.

I guess thatís why Iím so disappointed in what Bush is doing. Iíd always criticized Dean and Kerry for catering to the extremists on the left. Now Bush is catering to the extremists on the right. Itís too bad..

Boom Boom. Fight fight.

QUOTE:
the author is historically dishonest. It's not "two hundred years ... that respects individuals"; if that was true, the 13th, 14th, 15th and 19th Amendments wouldn't have been needed. It's only in the last 50 or so years that, as Brad S put it,"SCOTUS [is] to be the final arbiter of all that should be true, good, and beautiful in the USA".

Historically dishonest? What does that even mean?No it respected individuals from the get go, it just didn't respect them all which was the amendments you listed were needed. Didn't respect black people more that 3/5s? Changed. Didn't respect women enough to let them vote? Changed.

In actuality it was John Marshall around 1800 that decided the court would decide matters. It has to do with a case where there was an appointment, sadly I have forgotten the specifics.

QUOTE:
If we have to review those decisions that this "Republican lawyer" (yeah, right!) fears may be overturned GOOD. We need to review these and correct these goofy laws (e.g. the law that Lawrence v. Texas overturned) the right way; through the legislative process.

Just because he has a different view than you, you automatically assume he's a hidden democract, or liberal or what not? That seems like a tinfoil hat of your own.

I'm not sure what you mean by a right way or a wrong way to review laws. The very concept of the Supreme Court since Marshall's time has been judicial review. All other federal courts were established by congressional act.

interesting, but a little conspiracy theorish, don't you think? considering the odds are overwhelming AGAINST the amendment passing?

you don't spend years coming up with a plan that's contingent on something happening that only has a 2% chance of happening.

then again, these people ARE idiots, aren't they?

I don't buy the conspiracy theory angle, but should the FMA pass, and it's very likely to, imho, the Christian right will certain come after those other decisions, and they'll probably fail, also imho. After they acheive victory A, politically-minded people tend to go after victory B, planned in advance or not.

I'm not a lawyer, but it seems to me that by writing the FMA into the constitution, from a legal point of view, you'd get an explicit, specific exception to the penumbral right to privacy, rather than a full-scale repudiation of the entire concept.

SSJPABS,

You miss my point. Yes Marshall in Marbury v. Madison (1803 btw) established judicial review of laws that might be deemed unconstitutional. However, it was only in the last 50 years that we have had a huge influx of activist judges that have used the theory of a "flexible" constitution to read in rights that are not expressly written in the Constitution; the right to privacy and tsome of its extensions is a classic example.

You may be right about this guy really being a Republican lawyer, but Sullivan, himself, has admitted that he's been "Mobyed" before.

Any time I hear someone mention the "shadow doctrine" with regards to the Constitution, my bullshit detector pings pretty hard, especially when the same person brings up Griswold or Roe. This argument is usually posited by someone that thinks 5 members of SCOTUS should be able to decide public policy at their whim, regardless of what the people and/or the legislatures think. While it's true that some Republicans believe in goverment by the courts, I'm having difficulty swallowing the idea that the sender of the email is actually a Republican. It sounds suspiciously like the people that call/write talk shows and start off with a sentence such as "I've been a Republican all my life but..." and then proceed to disagree completely with a current Republican position. Even though party members could and should make up their own minds concerning issues, I would hazard a guess that most of the aforementioned people are merely pretending to be Republicans. If my bumbling verbiage hasn't yet made it clear, I think that's the case here.

The "right to privacy" ISN'T in the Constitution. But don't you believe that you HAVE a "right to privacy" in the United States? Where did you get that belief (if you hold it) from? Don't you want to preserve it, if you do?

Before "Lawrence," you could have been arrested for having oral sex with your own wife in your own home - yes, these laws applied in many places even to hetersexuals. Is that really the Government's business? Is that the country you prefer to live in?

BTW, how did "Conservatism" morph into "the concerns of Evangelical Christians" in this country? The "concerns of Evangelical Christians" are their own business - nobody else's. Believe it or not, many of us like to decide for ourselves how we worship God (or don't). "The sanctity of marriage" doesn't exist in the public arena - we are not a theocracy. (When was the last time you heard an American President expound on the "holiness" of the citizenry?) That phrase should be a signal as to what's going on here.

Marriage is a civil contract. And it's essentially a personal matter - one of the MOST personal, in fact. So much so that citizens of Texas should have absolutely NOTHING to say about what Massachusetts wants to do about regulating it.

I like what Jon Stewart said on the Daily Show last night. An judge is only seen as an Activist Judge to the loser.

So tell me, all you "anti-judicial-activism" folks: how do we avoid the "tyranny of the majority" in the United States? How do minority rights get a hearing at all, if not in the courts?

We don't have a Parliamentary system as other countries do - it's "winner-take-all" here, for the most part. Who defends minority rights and views?

(And ask yourselves why the founders even INCLUDED the judiciary as part of the "separation of powers"? Why are there three branches of government, instead of two?)

Michael Totten had a thread on this same subject last night so I'm just going to re-post here what I posted there (with very minor editing).

***
I'm not an expert on constitutional law but I have taken a few classes on the subject and I think Sullivan's analysis is off the mark.

If the Supreme Court were looking to interpret the right of privacy out of existence, it would hardly need an amendment to do so. As Andrew's anonymous "Republican" lawyer points out, privacy is nowhere expressly acknowledged as a discrete right in the Constitution. Rather, the Court has said, it exists by implication in various provisions of the first ten amendments. That being so, if a conservative majority wanted to get rid of it so that jack-booted thugs wearing Ken Starr masks could break into your bedroom and bludgeon your penis with batons (or whatever other cartoonish nightmare scenario Sully's imagining), all they'd have to do is say "If it ain't in the document, it don't exist" and that'd be that.

But the Court hasn't done that. On the contrary, as the number of Republican appointees has increased over the past 20 years, so, paradoxically, has the Court's support for gay rights. The state of the law until 1996 was that the right of privacy didn't extend so far as to protect the right of homosexuals to engage in sodomy. (This was decided in the infamous Bowers v. Hardwick case.) Then, in 1996, in Romer v. Evans, the Court decided that a Colorado referendum permitting discrimination against gays in matters such as housing, etc., violated the Equal Protection Clause. That was significant for two reasons. First, it established (or at least strongly implied) that laws which single out gays for special burdens merit the same kind of scrutiny under the Fourteenth Amendment as laws which do the same for racial minorities. And second, the case was decided by a clear majority of 6 to 3, not 5 to 4. Not only that, but three of those six votes came from Republican appointees (Kennedy, Souter and O'Connor), with Kennedy authoring the majority opinion. Hardly a coup by the Court's liberal wing. This set the stage for last year's decision in Lawrence v. Texas, which finally overruled Bowers v. Hardwick and established that the right of privacy does extend to gay sexual conduct and that state sodomy laws are, accordingly, unconstitutional. Again the vote was 6 to 3.

The point, then, is that not only hasn't the Court's conservative majority used its numerical advantage to attack the unwritten right of privacy, it's actually gone quite a ways toward expanding that right as it applies to gays. Nor has the Court wanted for cases through which to make its feelings on privacy known. It had a golden opportunity to overrule Roe v. Wade in 1992 in Planned Parenthood v. Casey, but it declined to do so. Everything was in the right-wing's favor: Republicans David Souter and Clarence Thomas had just been appointed to replace liberals William Brennan and Thurgood Marshall, respectively, so social conservatives thought they finally had the votes to get rid of Roe--perhaps by a margin as great as 6 to 3. They lost, 5 to 4. Souter co-wrote the plurality opinion with fellow Republicans Kennedy and O'Connor affirming Roe on the grounds that the Court shouldn't upset settled law except in the most dire circumstances. (Curiously, this reasoning didn't seem to matter so much in Lawrence vis-a-vis overruling Bowers.)

Given this recent history, I'm baffled as to why Sullivan's anonymous "Republican" attorney (who, needless to say, I doubt is really a Republican) thinks the Court will seize upon a constitutional marriage amendment and wield it as some kind of interpretive sword to destroy the very rights it's been working so hard over the past ten years to create. If anything, I'd expect the Court in its current incarnation to construe the amendment as narrowly as possible to preserve those rights. I'm equally baffled as to why Sullivan continues to portray the gay marriage debate as a battle with the religious right. Can he really not conceive of the fact that many people have an objection to gay marriage on moral, not religious, grounds? John Hawkins, for example, has expressed his contempt for the Pat Robertsons of the world many times, yet he supports the amendment. And before anyone tells me that we shouldn't be in the business of legislating morality, I'll simply pass along to you what my con law professor said to me when I raised that objection with him a few years ago: What about anti-discrimination laws?

The truth is, I'm not so baffled about Sully's or his attorney/reader's motives here. I understand that he feels passionately about this issue. If I were in his position, I'd feel passionately too. But it's precisely because of his passion that I'd recommend taking his doomsday rhetoric with a grain of salt. He's in a political fight here, and one of the best ways to win a political fight is to demonize your opponent and drum up hysteria about what'll happen if your side loses. Jerry Falwell and his ilk use the same tactics, screeching constantly about how "the queers is comin' to gitcha!" So too with Sully's use of Robert Bork and Rick Santorum as boogeymen. So too with his night sweats about constitutional armageddon, replete with absurdly ominous comments about how we straights "are next." (How long before he busts out the Niemoller quote?) I think both sides need to relax and dial it down a bit.

I agree with Allah for the most part. That whole analysis is bunk, pure conjecture and unworthy of serious attention.

He's in a political fight here, and one of the best ways to win a political fight is to demonize your opponent and drum up hysteria about what'll happen if your side loses.

It's not only political fight, actually. It's also a hugely personal one.

The effect of this amendment is the stigmatization of gay people - whether that's its intent or not (and I believe that IS its purpose, given its originators - the re-stigmatization of homosexuality and all other "un-Biblical" behaviors and actions, in fact). Personally, I have absolutely no problem with "civil union" - as long as the same rights are enumerated. Why shouldn't they be, after all? Gay people are people like all others, and many have families. Why shouldn't the same rights apply?

But if the same rights are enumerated, then what's the different between them? Only one thing: to create two separate classes of people: married (good) and civil-unioned (bad and gay). Is that the "moral" argument you were speaking of?

In fact, there's only one really good reason to reserve "marriage" to heterosexuals, IMO: to publically and communally celebrate the fact that men and women create new life together. But how would allowing gay people to be part of a civil contract affect that idea in any way? We all know it to be a fact, don't we? And do we really want the Constitution to be amended in order to do this?

I will say that the "religious" right DOES want to enforce its beliefs on the rest of us, without question. That's the "morality" you're speaking of, I suspect: that homosexuality is and has been deemed as "sinful" by religious people, for no very obviously good reason. Gay people exist; it's an obvious fact, and denying it, or trying to stigmatize us for reasons of past prejudice simply makes no sense.

That whole analysis is bunk, pure conjecture and unworthy of serious attention.

Oh. Wow.

Gosh, now I'm convinced!

So, anyway: a pop quiz:

From where does the "right to privacy" come? Do we all have it? Do we all want it?

(From the post above, it seems that it DOES, in fact, come from the Supreme Court - only it's being argued that it comes from conservatives on the Supreme Court. That's fine by me - but isn't that "judicial activism"? Why, or why not?)

"[...]John Marshall around 1800 that decided the court would decide matters."

"Yes Marshall in Marbury v. Madison (1803 btw) established judicial review of laws that might be deemed unconstitutional."

"[...]how do we avoid the "tyranny of the majority" in the United States? How do minority rights get a hearing at all, if not in the courts?"

Well, I'm not really sure what a "minority right" would be, but someone who has a bone to pick with a law challenges it in the courts, that's how.

And therein lies the problem that many have with what happened in Massachusetts.

Marbury stands for the proposition that the judiciary, as one of the three branches that Artemis described, must, in our separation of powers/checks and balances system, must be able to independently review statutes for constitutionality. However, the judiciary can only review statutes.

What the Massachusetts court has done is direct the legislature to legislate. That, for me (a practicing attorney), is the whole "activist judges" ball game, right there. If a given court passes judgement on a law in the course of deciding a controversy on its docket, great. That's what it's supposed to do. But when the court takes the affirmative step, sua sponte (on it's own motion), to dictate to the elected represantatives of the people what laws should be passed, then that court is overstepping its authority.

Parenthetically, this is part and parcel of my problem with what Mayor Newsom is doing in Sna Francisco. The argument is, "we don't need the FMA, we've got the DOMA and every state should decide for itself." Great; Californians decided in 2000 that they didn't want gay marriage. Has that statute been repealed or found to be unconstitutional? No, but an elected official has unilaterally decided that he's not going to abide by the law. That's not the way it works.

If Newsom wants to lead the charge to repeal the law, he's free to do so. What he is not free to do is disregard a law currently in effect.

(I guess Republicans are going to try to co-opt this issue, too, aren't they? They've already tried revisionist spin on the Civil Rights era, and movement, for which they were in no way responsible. It was Democrats - Truman's integration of the armed forces, Kennedy and Johnson in the 60s - who moved Civil Rights into the mainstream. The fact that Southern Democrats opposed it really has no bearing on those facts. Republicans calling themselves the "Party of Lincoln" is something of a travesty, actually.

And believe me, they have fought gay rights, and gay people, tooth and nail for 30 years.

Not that I like the current crop of Democrats, either. No Democrats until now have supported gay people much at all. But neither, certainly - my God! - have Republicans.)

If Newsom wants to lead the charge to repeal the law, he's free to do so. What he is not free to do is disregard a law currently in effect.

I think he certainly is. Think "Jim Crow" and lunchcounters and the-back-of-the-bus. Do you think any public officials, in the 1960s South, who refused to prosecute in those cases were in the wrong? Should they have disregarded unjust laws, or not?

He should be willing to go to jail, of course. And maybe he is.

Anyway, the marriage licenses are not valid. They are symbolic only, and I don't think there's a law against issuing them, is there? Only against recognizing them.

And guess what? Newsom's an elected official! Not an activist judge!

...(How long before he busts out the Niemoller quote?) I think both sides need to relax and dial it down a bit....

Probably around the same time I start busting it out when it comes to obvious Anti-Catholic, BIGOTED decisions like Davey v Locke. After all, what/who will be next now that the Supreme Court engages in Anti-Papism?

Dial it down, Allah? No way. If I've learned anything from gay rights activists (and about every other activist groups out there), it's that I cannot wait for National Review Online to make a "foolproof case" for me. I have to fight like a rabid dog, regardless of what polite society types like NR feel about it.

I'm not really sure what a "minority right" would be....

Even in the middle of this discussion?

Remember the 1960s? The attempt to disenfranchise black voters in the South by means of literacy tests and other requirements? The law in those states allowed this - because the majority preferred it, and the minority could not vote them down - or vote at all, in this case.

Same here. The Massachusetts Supreme Court looked at its own Constitution and found that its "equal rights" provisions required equal treatment. (The New Jersey Supreme Court did not find this, BTW - it found no "right to marriage" in its Constitution - but directed the Legislature to address the issue via "Domestic Partnerships.")

Via Drudge: Reuters Summit-FCC's Martin ponders indecency on pay TV, radio.

http://biz.yahoo.com/rc/040225/tech_summit_indecency_1.html

Culture wars indeed.

Death by a thousand papercuts, I suppose.

Occam's Razor:

one should not increase, beyond what is necessary, the number of entities required to explain anything

In English this means "the simplest explanation is most often the correct one." Which is more likely here? Some grand conspiracy, of which the FMA is the first step, intended to roll back all of our liberties? Or that the people behind the FMA are simply revolted at what gays and lesbians do behind closed doors and don't want to acknowledge, let alone endorse, those actions by allowing for same sex marriages?

I'm not denying that the law of unintended consequences doesn't have a role to play here, but come on...no one's that smart. Particularly not an elected official.

Would someone please cue the "X-Files" music?

In English this means "the simplest explanation is most often the correct one." Which is more likely here? Some grand conspiracy, of which the FMA is the first step, intended to roll back all of our liberties? Or that the people behind the FMA are simply revolted at what gays and lesbians do behind closed doors and don't want to acknowledge, let alone endorse, those actions by allowing for same sex marriages?

Nobody's saying that this is the goal for most people. But I don't think you've been listening, if you don't think that the "religious" right wants you - and all Americans - to behave in a certain way.

Some people saw "Lawrence" as another step forwad in the fight for liberty. For getting the government out of our bedrooms and our lives as much as possible. The "religious" right is the mirror image of the "loony left," and both sides are equally fervent in wanting everybody to live as they prefer.

Why do so many conservatives, then - like Limbaugh, for instance - see what this "loony left" does as a serious threat, yet scoff at the idea that the "religious" right could be doing the same thing?

"Remember the 1960s? The attempt to disenfranchise black voters in the South by means of literacy tests and other requirements? The law in those states allowed this - because the majority preferred it, and the minority could not vote them down - or vote at all, in this case."

There's really no need to be condescending, a la "®emember the 1960s?"

And those laws were challenged and found, by the Supreme Court, to be unconstitutional under the Equal Protection clause of the 14th Amendment. And the 1964 Civil Rights Act, a legislative act, was upheld by the Court.

My point was that there aren't "minority rights". A right applies to everyone; either you can vote, or you can't.

"Think 'Jim Crow' and lunchcounters and the-back-of-the-bus. Do you think any public officials, in the 1960s South, who refused to prosecute in those cases were in the wrong? Should they have disregarded unjust laws, or not?"

This is a red herring. Blacks in the South couldn't, among other things, vote; whites could. There are no rights that I have, vis-a-vis marriage, that anyone else doesn't have. I can't marry my sister or all three of the hot chicks in the apartment down the hall or a cute puppy, and neither can anyone else.

We can also have a discussion about whether civil marriage is a right, as opposed to a privilege, if you like.

"And guess what? Newsom's an elected official! Not an activist judge!"

Well, I'm pretty sure that I noted that distinction above, but that's rather irrelevant. I don't know what the oath of office the Mayor of San Francisco takes upon assuming office, but I'd wager that something about upholding or enforcing the laws of the State of California has something to do with it.

(Personally, I'm for a new political alliance in order to fight both of these groups: an alliance of "South Park Republicans," and hawkish, moderate Democrats (of which I am one - I support the war against Hussein, for instance).

It would be a moderate, future-oriented, libertarian-ish alliance, one that would scorn both extremes of left and right - but would still be interested in the welfare of ordinary people, and would strongly emphasize civil liberties.

In other words, it would be "Liberal" in the classic sense.)

There's really no need to be condescending, a la "®emember the 1960s?"

And those laws were challenged and found, by the Supreme Court, to be unconstitutional under the Equal Protection clause of the 14th Amendment. And the 1964 Civil Rights Act, a legislative act, was upheld by the Court.

I wasn't being condescending. I was asking.

And that's exactly my point - that minorities need the courts.

My point was that there aren't "minority rights". A right applies to everyone; either you can vote, or you can't.

That's semantics. The phrase "the tyranny of the majority" exists for a reason. It happens quite often.

This is a red herring. Blacks in the South couldn't, among other things, vote; whites could. There are no rights that I have, vis-a-vis marriage, that anyone else doesn't have. I can't marry my sister or all three of the hot chicks in the apartment down the hall or a cute puppy, and neither can anyone else.

This is a tiresome argument. You don't want to marry somebody of your own gender. If you're heterosexual, you can marry somebody you love and want to live with and support for life.

If you're gay, you can't.

BTW, I'm sure I can fix you up with some nice closted gay man, and you can marry him. Have fun!

We can also have a discussion about whether civil marriage is a right, as opposed to a privilege, if you like.

OK. They let one Eric Menendez - you remember, the guy who murdered his own parents a few years back? - get married not long ago. No conjugal rights, but he could get the license. Do you think they considered it a priviledge that he ought to have?

I don't know what the oath of office the Mayor of San Francisco takes upon assuming office, but I'd wager that something about upholding or enforcing the laws of the State of California has something to do with it.

Again: does the law say the licenses can't be issued? Or just that they won't be recognized? Let's split some legal hairs here.

Nobody's saying that this is the goal for most people. But I don't think you've been listening, if you don't think that the "religious" right wants you - and all Americans - to behave in a certain way.

Oh, I know the religious right wants to tell me what is right and wrong. But there is a difference between a simple "want" and the means to make it happen. I don't believe they, or the people on the far left, have the power to make their worldview happen, simply because they are both fringe elements.

Have you ever read any Hegel? If the answer is no, I suggest you go and hit the library. He's got the answers. To sum up quickly, according to Hegel, on one side you have a thesis, on the other you have the antithesis. They battle it out to create something new---a synthesis. This synthesis then becomes the new thesis, and the process begins all over again. This is what we, in a democracy, in essence, do---we slug it out to merge opposing viewpoints to come up with something new. Whether that "something new" lasts is another story. Chances are it won't and will be refined even further. This process demands that there be two sides---that's how it works, and that's what we have going on here. And this is why the fringe elements won't triumph in any idea that is to gain wide acceptance.

This is why I think Sully's Republican lawyer needs to remove his tin-foil hat. This is why I think the left needs to remove theirs, too. The middle's views don't make for eye popping headlines, but ultimately, they do have the most say in what happens.

Have you ever read any Hegel? If the answer is no, I suggest you go and hit the library. He's got the answers. To sum up quickly, according to Hegel, on one side you have a thesis, on the other you have the antithesis. They battle it out to create something new---a synthesis. This synthesis then becomes the new thesis, and the process begins all over again. This is what we, in a democracy, in essence, do---we slug it out to merge opposing viewpoints to come up with something new. Whether that "something new" lasts is another story. Chances are it won't and will be refined even further. This process demands that there be two sides---that's how it works, and that's what we have going on here. And this is why the fringe elements won't triumph in any idea that is to gain wide acceptance.

Sorry to say, but these "fringe elements" have triumphed many times in history. See the 20th Century for some frightening examples. And work backwards from there, if you like.

Granted, these things don't usually happen in the United States - but how do you expect there to be a "synthesis" if there's only one "side"? That's why we're fighting this particular "fringe." We're trying to increase, rather than decrease, liberty as time goes on. This has been the trend over time, and it should continue. And the Constitution, and the Declaration ("life, liberty, and the pursuit of happiness") should be the driving forces - they are not supposed to be dead, but living. And "construed," when they're not explicit.

So anyway: can you remember the last time an American President spoke of the "sanctity" of an American institution? (Other than the Constitution, that is.) Is that really his job? BTW, I would have voted for Bush - I'm quite in favor of his foreign policy, for instance - if he hadn't gone this route. I don't want to hear about "sanctity" (i.e., "holiness") from my President, although I don't mind hearing about it from my minister.

BTW, no takers on my pop quiz above? "Right to privacy" and where it comes from and all?

From Federalist 51:

Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights.

More from the above:

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

What the Massachusetts court has done is direct the legislature to legislate. That, for me (a practicing attorney), is the whole "activist judges" ball game, right there.

So what you're saying is that the court, upon having found a lack of equal protection, should have struck down the law or laws in question as being in violation of the constitution. If that had been the case, then the legal institution of marriage in the Commonwealth of Massachusetts would have to have been put on hold until all of the licensing laws were rewritten. Nobody's allowed to get married until all of the state and municipal regulations are reworked where necessary.

Personally, I think that the court, by saying to the legislature, "You've got to fix this, like now." (I'm paraphrasing, can you tell?) was doing everybody in the state a favor by not holding the heterosexuals' right to marry hostage.

On the whole, I can see how something like that could make somebody in the legal or legislative professions nervous, but I guarantee that the majority of people barking about activist judges don't recognize or care about that aspect. They care about the fact that a court would dare to question the status quo and pander to those dirty homosexuals. (That last sentence, like so many other things, sounds really funny if you say it while doing a Nixon impression... or a Kennedy one, for that matter.)

I believe that we should pass an amendment, but not the one Bush is suggesting. "We held these truths to be self evident, but now we've got to spell them out and codify them as law: all humans are created equal in the eyes of the law, and they are endowed with certain unalienable rights, among which are life, liberty, privacy and the pursuit of happiness."

"where does the "right to privacy" come? Do we all have it? Do we all want it?""

I'm not certain one way or the other, but the argument would at least be that it is a natural right, presumably preexisting positive law. Whether that means it's a right that the federal courts are authorized to enforce is, however, I think, a seperate question. As much as I have difficulty with the idea, I have to be honest and say that the Ninth Amendment must mean SOMETHING, yet if it does it seems to be a Pandora's box that potentially means anything and everything.

Regardless of the federal question, ten state constitutions do contain an express right to privacy.

"On the whole, I can see how something like that could make somebody in the legal or legislative professions nervous, but I guarantee that the majority of people barking about activist judges don't recognize or care about that aspect."

As someone in both the legal and legislative professions (I'm an attorney who works for a state legislature) who has been "barking" about exactly that, I'm not sure. I must admit that there are plenty of people who only complain about judicial activism when it's their ox being gored, but whether that's a majority I really don't know. Regardless, I wouldn't think that such people overwhelmingly those who have been making similar complaints actually based on principle.

"Republican lawyer"? No, just some conspiracy theorist in masquerade. Andrew Sullivan is so upset and emotional now that he will accept almost any theory. He'll find his center of gravity soon.
He remains one of the best and sanest.

Granted, these things don't usually happen in the United States - but how do you expect there to be a "synthesis" if there's only one "side"?

You missed my point entirely.

There are two sides to every issue---even on the issue of same sex marriage. Somehow, the two sides will hash out their disagreements and they will come to a compromise negotiated by those who are in the middle on either side---a synthesis. Like I said before, this synthesis/new thesis, will then have two sides to it, and the process will begin all over again. This is how democracy works, and it doesn't happen overnight---it can take years. The pendulum swings one way, then it will swing another. I would urge you to take the long view. I know it's not nearly as much fun, but when it all becomes to much, it makes defeats easier to handle. This notion that we must take everything as either right or wrong and that instead of there being middle ground, there is a vast chasm that cannot be breached, is ridiculous. There is always middle ground. Whether people choose to go to that middle ground is another story, but as we know, the people who ignore the middle ground are the ones who become disenfranchised in the process. Democracy is all about negotiation.

This is why I cannot get my knickers in a twist whenever someone talks about the radical ends of the political spectrum, and then cries out about what they stand for in a Chicken Little sort of way. It's shortsighted.

Do you get it yet? Look at the big picture---every issue, whether it be slavery, taxation, social programs---whatever---has gone through this refinement process. We get it right eventually, but it takes time to do so.

Allah's right.

The 'bullshit' quote:

"By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed".

Really? That must be some regulatin they're fixin to spring on us.

I'll add that I am freakin' sick and tired of activist courts and activist judges who ride roughshod over the will of the people . . .

Hey, if I can convince The People -- or at least 50.5% of them -- that gang rape is perfectly OK and should be legal, will you bitch when your daughter gets forced to pull a train for my posse?

Fuck the will of the people. It isn't sacrosanct. If the Massachusetts Constitution calls for equal protection even on sexual orientation grounds -- and what I've read indicates that it does -- and the legislature and The People are failing to provide equal protection, someone has to do it.

The DNC, or somebody, needs to trump Shrub with an explicit Right of Privacy Amendment. No "penumbras" or "emanations" of Griswold v. Connecticut. Privacy. Pure and simple. The real deal.

"If the Massachusetts Constitution calls for equal protection even on sexual orientation grounds -- and what I've read indicates that it does..."

According to 4 of 7 justices on the Mass. SJC, anyway. Must have been something John Adams forgot to mention, seeing as it's the oldest continuously operated written constitution in the world.

"...and the legislature and The People are failing to provide equal protection, someone has to do it."

From where does the authority of the Massachusetts Constitution come, Phil? Sovereignty resides with the people of the Commonwealth: it is their document to alter as they see fit, save insofar as doing so would violate federal law. From the people through their constitution is the only source of legitimate authority for the state's courts as well: they are the people's servants, not philosopher-kings, act like them though they might. If I may once again invoke the Declaration of Independence, governments derive their just powers from the consent of the governed: anything else is tyranny, even in the service of the noblest goals.

And let's not forget Loving v. Virginia of 1967.

Re: loving v. virginia, there's no guarantee that homosexual unions would stand up under the precedent of loving v. virginia. If anyone bothers to read the entire opinion, not just the part about marriage being a civil right but the phrase right next to it, the court's basic argument was that marriage was a basic civil right because it was the way the human race reproduced itself and was thus crucial to the function of society.

The justices were still operating under the assumption that marriage meant a man and a woman. Just because race was not to be a deciding factor in who is able to get married doesn't mean that the sex of the parties involved wouldn't be. To use loving v. virginia to approve of homosexual unions as a civil right would require redefining "marriage," and that's going to be a big leap for the court to make.

At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny,"

racial classifications, based upon their ancestry, not their sexual orientation.

Further:

Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Finally, the laws in question provided a penalty for people of different races who were married. The Lovings were charged with a crime, which is how the case ended up in the courts. Now, try as you might to avoid the fact, defining marriage as between a man and a woman to be recognized by the state (such that homosexual marriage is not recognized or performed by the state) is quite different from punishing people of different races for being married.

The Lovings were convicted of violating 20-58 of the Virginia Code:

"Leaving State to evade law. ü If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."

Section 20-59, which defines the penalty for miscegenation, provides:

"Punishment for marriage. ü If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=388&invol=1

So far as I know, there has not been a punishment affixed to people who try to marry as homosexuals, especially not a felony.

It's a fascinating case. I don't think it necessarily wins points for the homosexual marriage proponents unless you rip the "civil right" quote out of context.

If anyone actually read this far (I didn't), I hope I'm not repeating anything in postings that I skipped.
This is my first visit, so I have no prior knowledge of a political agenda favored here. I have noticed that a lot of people who post here like to memorize precedent-setting court cases.
The ironic thing is, what I read before skipping down to add my 2 cents, most people seem to be missing the real point of Dubya's statement. The truth is, his support of an Ammendment to the Constitution is akin to the guy who starts a bar fight and then stands back rooting for his friend without actually throwing a single punch. Because he can't. The president has absolutely no power in this fight. The ammendment must fist pass by two-thirds in both houses and then be ratified by three-quarters of the states in a process that can take up to 7 years.
The truth of the matter is, his supporters in the religious community have been clamoring for him to take a stand on this issue. Supporting an ammendment at the beginning of a reelection campaign is a no-brainer. Even if he does get reelected, his second term will be over before the ratification process is complete. He's posturing, pure and simple.
As far as my opinion goes... using the Constitution to deny American citizen's of rights goes against the very spirit that created it in the first place. They tried it with prohibition. We all know what happened there. As a married heterosexual, I do happen to feel that marriage is at it's core a heterosexual institution. But I also feel that just because a couple in a long-term, loving relationship happen to be of the same gender is not reason to deny them of the same rights enjoyed by heterosexuals in the same situation. After that I think it comes down to semantics. Why the Gay community refuses the idea of the term "civil union" I don't really know. If they're actually after rights, what difference does it make under what title those rights are granted?
Either way, this ammendment is a waste of time, effort and money. It will not be ratified, and if it is it will be reversed within a matter of years when a more progressive administration is able to choose some new Justices.
I think it's rather ironic that most of the folks who so vehemently reject the idea of Gay marriage do so under the guise of religion. What's the famous saying? "Judge not, lest ye be judged."? Why not leave the judgement to those you worship? Look at your own sins in the mirror for a few minutes. Check out the divorce and adultery rates in this country. If heterosexual marriage is such a patently "sacred" institution, there are an awful lot of us who should be excommunicated. I wonder what the divorce rate is among Gay couples? I bet they've got us beat by a long shot.
Why can't we just let each other live our own lives anymore? Jeez. I'm sure there are plenty of people out there mouthing off about Gay marriage who would be scared stiff if the world at large knew what went on in their bedroom.
Live and let live, people. Life's too short.

Dave J., does the Massachusetts Constitution -- as written, on paper, the plain language -- provide for equal protection for all of Masschusetts' citizens without regard to sexual orientation, or does it not? It's a very simple question. So simple that it requires only a "yes" or "no" answer.

If it does, and if the legislatures are refusing to protect the citizens equally, then it is the job of the courts to force them to do so. That's why there are three branches of government. The citizens who are not being protected equally, or treated equally, by the government that they vote and pay taxes for should not be required to wait until the legislature gets off its lazy collective ass and decides, "Hey, 'equal' actually means 'equal'!"

By the way, real tyranny is the denial of rights to people who are entitled to claim them under the auspices of their state and Federal constitutions, simply because it isn't politically expedient, or because they haven't been able to convince that fifty-first person, or whatever. The other thing -- referring to courts actually interpreting equal protection to mean equal protection as "tyranny" -- is bullshit sophistry.

important

First,let me ask one simple question? What is it really that the conservatives of this country are trying to protect?

The sactity of this union, of one man and one woman, is now so superficial that a guy can date 15 women in 2 weeks on a tv reality show and then marry the winner... Is this sacred!!?? What more precious ritual is there than getting joined in holy matrimony by an Elvis impersonator in Las Vegas? Narrowly defining the definition of marriage is not going to save the institution of this union.

Why do they think that gay people will mess up something that already ends up in divorce court 50% of the time?

I for one am a firm believer that this argument has little to do with the precious state of marriage and everything to do with the financial impact that giving benefits to a significant minority will have on insurance premiums, social security benifits, taxes, and business.

Any better idea?