Part 1 (with a link to Judge Walker’s decision) here.
My chief objection is that, Walker’s writings to the contrary, viewing marriage as an institution that is fundamentally non-gendered is…well, laughable. As one conservative bloger writes, “‘I now pronounce you party and party’ – that sure captures what marriage has traditionally been.” The notion of marriage as something between a man and a woman has been part of its fundamental identity.
The way Walker defines it (see his comments under the Due Process section, p. 111) sounds like little more than a business arrangement (a day care center, maybe?) The fact is, same-sex marriage is something fundamentally different from the traditional conception of marriage recognized as an unenumerated right. As such, refusing to acknowledge it does not violate Due Process.*
The Equal Protection clause at first seems to have a bit more weight behind it. However, this is wrong, too. Opposite-sex marriage is being offered equally to those of any sexual orientation. That most homosexuals/bisexuals/whatever don’t want to use this option offered to everyone, and that they (and, for the most part, only they) want another option that isn’t offered at all, is irrelevant. The definition of marriage wasn’t formed over the centuries specifically to exclude homosexuals; it just naturally grew out of the purposes of marriage (namely, formation and continuation of families, and consolidation of property among them.) Neither group (heterosexuals or homosexuals) is being given unequal protection under the law due to Prop 8.
With both the Due Process and the Equal Protection claims invalid, I – and many others – find Walker’s decision to be out of line with the Constitution. Is it judical activism? Possibly. Judges always make some attempt at Constitutional justification for their rulings, even when it’s clearly done for a desired social/political policy outcome (Stevens in Citizen’s United, e.g.)
In this particular case, I do suspect judicial activism (though I’m much less sure than in Stevens’s case, for example.) I do like the policy that Walker is shooting for; I just dislike the way he goes about it. The classic republican ideal, that the nation be ruled by “a government of laws and not of men,” should be respected; judicial activism gives government officials a level of arbitrary power undesirable in a rights-respecting republic. In this particular case, it’s function may be to respect rights; however, I don’t think it’s possible to keep its use contained to only such good ends (indeed, I’d say the furthest-reaching instances of such activism have been the justification of every single piece of social-democratic legislation under the Commerce Clause – clearly both incorrect and antithetical to freedom.)
There is actually one part of the Constitution that I do suspect could require states to recognize – at least some – same-sex marriages – namely, the Full Faith and Credit clause (Article IV, Section 1.) This section requires that states recognize other states’ public records and proceedings. On the face of it, this would definitely seem to require Texas (for example)to recognize a marriage between two men made in Massachusetts. It’s possible that there are some reasons why this clause might not apply to gay marriage, but I don’t see them.
*Due Process isn’t even the right way to go about ensuring that rights are respected. The Privileges or Immunities clause (also in the 14th) is. Judges have been using this one too long, both for rights that are covered by the P or I, and those that aren’t. Some exceptions do exist – see Thomas’s concurrence in McDonald v. Chicago.
Filed under: Jake Anderson, judicial activism, Proposition 8, rights
The way Walker defines it… sounds like little more than a business arrangement
Serious question: from a legal standpoint, how does this differ substantially from how marriage has been viewed in many, many societies for the last several centuries?
The fact is, same-sex marriage is something fundamentally different from the traditional conception of marriage recognized as an unenumerated right.
How?
The definition of marriage wasn’t formed over the centuries specifically to exclude homosexuals; it just naturally grew out of the purposes of marriage (namely, formation and continuation of families, and consolidation of property among them.)
How do those purposes require the couple in question to be heterosexual? I mean, especially now that we have in-vitro fertilization*, same-sex couples can have families and share property, too.
I honestly don’t see a secular legal basis for restricting marriage to opposite-sex couples. It’s like saying, “You can marry whoever you want, just as long as they were born on a different day of the week. But everyone has an equal right to marry people born on a different day of the week, so it’s fine!” How is that equal protection?
*I should note that I don’t think having children is or has ever been a “fundamental” part of marriage — otherwise, why let old or otherwise infertile couples get married? — but given that same-sex couples clearly can have families using a variety of methods, it’s kind of a moot point.
How’s it different from many historical definitions? Those definitions were (largely) centered around heterosexual reproduction – specifically, and importantly, between the husband and wife. Even if some couples never had kids, due to infertility, unwillingness, or both, that doesn’t really negate that central purpose. As such, marriage was never recognized between people who were so obviously anatomically incapable of producing a child – that is, same-sex couples. It wasn’t that they were excluded from marriage based on discrimination – it’s that the conception of marriage was one which had nothing to do with them.*
That this basis was foundational to the history of marriage means that, even though we now have in-vitro fertilization (for example,) and we can imagine two men or two women getting married, that the conception of marriage (as was understood at the time of the 9th Amendment’s ratification; or even the 14th’s) does not allow for it to be applied to same-sex couples. The modern, same-sex (or gender-neutral, as Walker would have it)version of marriage thus isn’t a right promised to U.S. citizens.
“I honestly don’t see a secular legal basis…”
I don’t see a good one either. Which is why I support states’ recognition of gay marriages. But refusing to do so isn’t unconstitutional.
As for your day-of-the-week example, that’s actually a worse example than same-sex marriage was originally for the point you’re trying to prove (that is, the “equal protection” point; if you’re trying to convince me of Prop 8′s pointlessness, you’re preaching to the choir.)
As for children being a fundamental part of marriage, that purpose/foundation isn’t invalidated just because some marriages don’t involve children. A better way of looking at it would be to ask why anyone was (or even is) married at all. Why did every society (I think) develop some sort of legal or semi-legal bond between a man and woman? If you look at what they got together to do, and how the formal and informal rules of marriage worked, the absence of children in all marriages would have made them pretty pointless.
As for same-sex couples being able to have children – not with each other. Which is/was the point with marriage. Furthermore, and back to the main point, such instances (partial and adoptive paternity) did not form part of the conception of marriage that the authors of the Constitution, and of its relevant amendments. So it can’t be one of the unenumerated rights secured by the 9th and 14th.
*Don’t know if you were aware, but the very notion of homosexuality/bisexuality (and therefore, of heterosexuality)wasn’t conceived until the late 19th century. So it seems unlikely – impossible, actually – for the ages-old exclusion of gays from marriage to be merely a result of discriminatory viewpoints towards them.
the conception of marriage (as was understood at the time of the 9th Amendment’s ratification; or even the 14th’s) does not allow for it to be applied to same-sex couples. The modern, same-sex (or gender-neutral, as Walker would have it)version of marriage thus isn’t a right promised to U.S. citizens.
And we’re constitutionally required to stick with this outdated conception of marriage… why, exactly? I mean, it seems like the whole point of the 9th Amendment is that there isn’t some finite list of “promised” rights that we can never augment ever.
As it is, you’re prohibiting pairs of consenting adults from entering into a legal contract based on their genders, whereas opposite-sex pairs of adults can enter into the exact same legal contract without difficulty. That’s an… interesting definition of equal protection you’ve got there.
Constitutionally required: because textualism is the only correct method for interpreting and applying the Constitution. And that method, applied to the 9th amendment, means that its language, at the time of its ratification, doesn’t allow for an infinitely expanding collection of unenumerated rights.
The whole point of the 9th (not that authorial intent should dictate reading and application)is so that the Bill of Rights’s authors and ratifiers could specify important rights, clearly prohibiting them from being violated, without at the same time suggesting that other rights that they chose not to specify were fair game.
Interesting and valid. My definition, that is.
It’s not the “exact same legal contract.” I thought I had made this clear. It’s something different (and newer), which is allowed to nobody, gay or straight (in California, at least.) The fundamental right (opposite-sex marriage) is offered to everyone; some people just don’t want to exercise it. That they choose not to doesn’t grant them a constitutional right to something that they view as identical or equivalent.
Okay, here’s the text of the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
its language, at the time of its ratification, doesn’t allow for an infinitely expanding collection of unenumerated rights.
If this collection is in fact finite, where exactly are you getting the list? You referred earlier to “promised” rights. Who made this promise, what makes this source authoritative, and why are these finite rights the only rights we’re allowed to have for all time?
It’s not the “exact same legal contract.”
Two adults consent to share property, responsibility for dependents, etc. Any two adults can agree to do all these things.
Since marriage is a positive right, I’m curious–where do you, as a libertarian, draw the line as to which positive rights are “allowed”? Why is the state allowed to forbid two consenting adults from entering into a contract with each other? Plenty of people think that marriage is a fundamental right regardless of gender, whether that right has been recognized (or even necessary) in the past or not… what makes you right, and them wrong?
It’s not a complete list; that would make them enumerated.
Determined through historical analysis, particularly – though not only – of the writings of the amendment’s authors and commentators at the time.
I already explained most of the rest of these questions. Please reread. If you’re looking for why textualism is correct, we can have that argument wholly separate from any sort of gay marriage debate. You can start that with your own blog post if you want.
Marriage is not a positive right. Legally, it’s the governmental recognition of a negative one, in the same way that recognition of any contract (incorporation, wills, labor contracts, etc.) is the enforcement of real (negative) liberty.
And I’ve already explained why the states are allowed to do it, even though I think it’s a violation of rights. The same goes for a whole bunch of things I dislike, both socially conservative and economically socialist.
You’re repeating the same questions, to which I’ve already given answers, and you’re not actually making any arguments (seriously; “What makes you right?”)I think it would be best if you just thought about it instead of trying to respond.
Determined through historical analysis, particularly – though not only – of the writings of the amendment’s authors and commentators at the time.
You said that Proposition 8 is a violation of rights. Why is the government only obligated to recognize rights that were generally accepted in the 1700s? Why not rights that, I don’t know, actually matter to people today?
“Not an issue three centuries ago” != “not fundamental in today’s society.”
(seriously; “What makes you right?”)
It’s a valid question, given that a lot of this is just you asserting stuff as if it’s automatically correct. But if you don’t want to continue the conversation, that’s fine.
I’m not saying that government isn’t required (morally) to recognize gay marriage. It is. But it’s not required to do so by the Constitution. In other words: try to change the law, but don’t do so by lying and calling it unconstitutional.
To use an analogy to a violation of rights that you do support, I don’t want the courts saying that the income tax is unconstitutional, even though it’s a violation of rights. See the distinction? Bad/immoral, but constitutional.
If you’re still asking why the viewpoints’ of the amendment’s authors matter in a way that random people today’s don’t,I already answered that. See the stuff I said about textualism.
No, it is not a valid question. “Why is [statement] right? On what grounds?” is a valid question. “What makes you right?” is the interrogative form of “That’s just what you think!” As though citing others’ disagreement makes my claims only true relative to me (or whatever.) So, if you’re actually asking for reasons behind what I’ve said…I’ve already written them.
As far as the gay marriage discussion goes – yeah, there’s not much more to say. If you want to write about why textualism is wrong, and why the Constitution’s meaning changes from age to age or person to person (or whatever), then be my guest. You should probably start a new post, though.
Oh, I didn’t even notice this post until this morning. A couple comments:
1) Actually, if you’re going to be “contextualist” about this, Jake, then you should read some stuff on the notion of authority for the founders. Their notion of authority was copied from the Roman canonical meaning of authority, which meant both legitimate promulgation of laws *and* the augmentation of laws. In Roman canonical law, the power of roman law came pre-installed with the notion that it only held its power because it could slowly encompass more and more things. In other words, their notion of legal authority took the logic of empire: Roman law was *meant* to augment itself, to slowly subsume more and more societies and traditions into its penumbra.
So, historically–as you ask us to limit ourselves to (though I agree with Sarah that I don’t see any good legal reason why we would do something like this…) “historical” fictions (all historical origin stories are essentially fictional, strictly speaking)–the idea that the Constitution’s authority is intimately tied with a finite set of promised rights is not correct. Its authority retains its vitality because it is meant *essentially* to augment itself. There is some good historical stuff on this by a bunch of legal historians; I’ll try to go track it down and post links here.
2) Your notion of equal protection is… odd. And legally unfounded. You construe equal protection to be purely two dimensional function, where what is being adequated between the competing parties is the strict wording of a law. But that was explicitly what it was *not* meant to be. If you look at the debates surrounding the adoption of the equal protection clause (again, I don’t care about historical foundations, but if you insist…) its proponents made reference to the *spirit* of the law. (You find this in the Federalist Papers too, fyi). The equal protection clause is not supposed to guarantee the tautological and somewhat silly right of the ability to marry into *heterosexual* marriages. Equal protection doesn’t establish a metric of comparison FIRST, and then compare the parties (though this is a more general statement, it does vary a bit, but this is more or less true). Rather, equal protection guarantees the adequation of two different parties on *each other’s* terms. That is, they are treated as particular qua particular, and each has a particular claim that isn’t so abstract as to be weighed in the exact same way as another person’s claim. This becomes really clear when you study women’s rights movements. Equal protection, which essentially stems from womens’ rights movements, was premised almost unilaterally not on the right of women to be equal AS men (i.e. pretend women are actually supposed to comport to the “objective” standard of men). The whole problem was the very fact that the bland notion of “equality” which tried to treat women *exactly* as men was absolutely not equal, because it used men as the “objective” standard to which women had to try to reach. (Look at the Virginia Tech Military Academy cases, or the discrediting and reinvention of the “reasonable man” standard in gender based violence constitutional law.)
Equal protection has never meant the diluted notion of pro forma equality. It’s always been interpreted as a substantive equality, which means not using one universalistic standard for equality (which ends up privileging the status quo, always), but equality in actual living expections. Which means that what is being “equalized” here is not the right to marry the person of the opposite sex–that kind of logic in constitutional law was ditched a decade ago. What is being equalized is (among other things) the right to participate in a social institution deemed (problematically in my estimation) necessary to the flourishing of democratic citizens.
Note: by the federalist papers reference above, I meant that the drafting of the constitution makes it absolutely ambiguous as to whether the constitution was meant to be a closed, literal text, or one that simply *expressed* a self-evident legal *spirit*. (See the references to Montesquieu in the papers.)
I’m going to edit this comment and just say, to almost everything you’ve said: I doubt it. I don’t think there’s a point in having this argument with you.
Alright, I wasn’t going to be any more specific, but now I need to scratch a few itches.
1. There’s no such thing as the “Virginia Tech Military Academy.” You’re thinking of the Virginia Military Institute. Why would you use an actual, full-length, incorrect name for something instead of Googling it?
2. I read the Wikipedia entry for this case. It doesn’t seem to mean anything like what you’re saying; if fact, it seems to imply the opposite. The majority opinion said that an “equivalent” institution was not, in fact, good enough; only the same institution would do.
3. When you cited “Roman canonical law,” the only thing that came up was “Roman canon law,” and that referred to statutes of the Catholic Church, not to the ancient Romans. Did you just mean “Roman law”?
4. It’s not relevant anyway, because what you’re proposing (the state’s unlimited ability to co-opt more and more power) is almost the exact opposite of what Sarah is saying (more and more rights being protected from the government’s power.)As it happens, I believe neither; the latter for reasons I’ve already mentioned. The former seems particularly unlikely considering the Tenth Amendment in particular, and (many of) the Founders’ liberalism in general.
5. As the Equal Protection clause was passed as part of the 14th Amendment, meant to deal with newly freed slaves, I highly doubt that the women’s rights movement had anything to do with it. Especially since it came on about a century later (You are referring to second-wave feminism, right?)
6. Your notion of Equal Protection is more than odd; it’s a load of shit. Not just in the sense that it’s not what the amendment’s authors had in mind; it’s a clumsy attempt by socialists to conscript (by subversion) a great classical liberal principle (equality before the law.) The very idea of equality requires a plane on which the two (or more) parties have commensurable claims. They can’t be “equal on each others’ terms,” unless those terms are the same. Hint: when you have to substitute “adequation” (whatever that means in this context) for “equality,” then you’re no longer dealing with equal protection, but with mutual satisfaction (or something.)
A few comments:
The equal protection clause has been worked on by case work, you know. As in, it only gets its legal density from the cases that actually use it. And, by far and large, we’re talking cases from the feminist movements. So if you want to know how the equal protection clause works, you don’t look at its wording, right? You look at how it was used in all of the subsequent cases. And that’s what I meant when I said it emerged from the feminist movements; the equal protection clause was kind of awkward until it started getting lots of use for women’s rights. By awkward, I mean relatively unused and ambiguous. It got dis-ambiguated by being fleshed out.
You’re right; I was too lazy to google the original name of the Virginia Military Institute. Sorry about that; It’s been more than two years since I had my constitutional law courses at Vandy. But I also figured you would know what I was talking about.
Ah no, I wasn’t talking about the state’s unlimited ability to co-opt more power. What I mean is its *authority* is based on its ability to extend itself in different ways. Our equivalent is the Constitution; it’s authority rests not on the fact that it just IS the constitution, but the fact that it was the founding moment of authority which was meant to preserve that authority into the future by augmentation. That’s how it is supposed to remain a source of authority *today*, rather than for just the founding fathers.
Er, and in regards to point 6… you should read Ginsburg’s majority opinion. It’s pretty crystal clear. And the cases on women in the military, especially.
1. God, I love lists.
2. Er, actually, I do want to look at the wording. Maybe I’m just insufficiently pomo, but I do think that the clause has a meaning above and beyond how its applied. I also believe that it can be applied correctly or incorrectly, so merely saying that a bunch of subsequent judges interpreted it in a way contrary to its (somewhat) unambiguous meaning isn’t going to convince me of a different meaning of “equal protection.”
3. It’s not actually clear what it means for the Constitution to “extend itself in different ways,” or how it would do so. Unless you’re referring to the process of amendment? But then, that sort of defeats your argument, as it’s a specifically enumerated function, with a specific protocol that we still follow today.
4. Again…I might read Ginsburg’s opinion at some point, but I can’t read everything relevant to every discussion. I’ll respond to your excerpts below, though.
A few elaborations:
If you actually read the Virginia case, what was being disputed was *exactly* what equivalent meant. It wasn’t just that an equivalent institution wasn’t being provided. It was that the state of Virginia argued that it WAS equivalent to have two schools specific to the sexes, and that Ginsburg’s opinion stated that, for many reasons, is only a facade. I quote her opinion:
“Without equating gender classifications, for all purposes, to classifications based on race or national origin, [n.6] the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B., 511 U. S., at 152 (Kennedy, J., concurring in judgment) (case law evolving since 1971 “reveal[s] a strong presumption that gender classifications are invalid”). To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U. S., at 724. The State must show “at least that the [challenged] classification serves `important governmental objectives and that the discriminatory means employed’ are `substantially related to the achievement of those objectives.’ ” Ibid. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 223-224 (1977) (Stevens, J., concurring in judgment).
The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U.S. 1 (1967). Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” Ballard v. United States, 329 U.S. 187, 193 (1946).
“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” Califano v. Webster, 430 U.S. 313, 320 (1977) (per curiam), to “promot[e] equal employment opportunity,” see California Federal Sav. & Loan Assn. v. Guerra, 479 U.S. 272, 289 (1987), to advance full development of the talent and capacities of our Nation’s people. [n.7] But such classifications may not be used, as they once were, see Goesaert, 335 U. S., at 467, to create or perpetuate the legal, social, and economic inferiority of women.
”
So both sides–the defenders of two schools, and the defenders of one co-ed school–are both arguing that what they stand for is actually equality. Ginsburg’s decision rests *essentially* on the notion that, in fact, it is OFTEN the case that one can create separate institutions for men and women, so long as there is a strong justification for it, because women and men are, in fact, different. The key here is that if the separation is premised on “overbroad generalizations” about men and women, than it is pretty much prima facie not going to survive the equal protection clause. And the balance to this is the second paragraph: the law must also celebrate, in a positive way, the actual *differences* between men and women too.
Equal protection here is codified as a balance of justification, where equal protection guarantees equal treatment not *in spite of* sexual difference. It absolutely must take that into account, and accord preferential treatment if necessary.
Alright, I, for one, find this incredibly unconvincing. It’s transparently obvious that this isn’t some impartial attempt at truth-finding or constitutional interpretation. She herself says she just wants to use it for women’s benefit, never against them.
This isn’t equal protection. Its a series of hedgings designed to get around equal protection.
And as I said before, I don’t see a history of (bad) interpretation as being indicative of the EP clause’s meaning. It just means that the case record has been mutilated and passed down to the present day.
(Side note: it would be nice if the Left could stop using the language of liberalism to defend their own pet groups – blacks, women, gays, etc. They’d still be wrong, but at least they’d be consistent, not to mention more honest, when they denied those same protections to straight white men.)
I Just remembered the key case for this: Michael M. v. Superior Court. It’s on statutory rape law in California; it used the very common logic of men and women not being similarly position in relation to the law at hand. Quoting Rehnquist:
“Because MALES ALONE [my emphasis] can ‘phsyiologically cause the result which the law properly seeks to avoid [pregnancy], the California Supreme Court further held that the gender classification was readily justified as a means of identifying offender and victim.”
I won’t comment on the obvious sexism of his opinion; but in this case, equal protection is derivative of an analysis of whether men and women are similarly positioned. If they are not (which Rehnquist says they are not, in this case), than equal protection must take this into account. What always comes first BEFORE you apply the standard of equal protection is whether people are similarly positioned. And THEN you apply equal protection, in light of your answer to their positioning.
Again, see earlier comments about history of interpretation vs. actual meaning.
In this particular case, I agree with you. Not about it being the appropriate application of equal protection; just about it being based on stupid, outmoded conceptions about sex and responsibility. (Seriously; the woman doesn’t cause pregnancy?) I’m guessing that what you’re concerned about is the way he views women as passive objects that sex just happens to. That’s bad, but IMO what’s worse is putting all the responsibility on the man’s shoulders (especially since, if anything, not getting pregnant is the woman’s responsibility more than anyone else’s.)
All the talk about being “similarly situated” belies the fact that equal protection under the law is not synonymous with equality of outcome, or even equality of opportunity. To borrow Anatole France’s example, yeah, a law against sleeping under bridges is actually going to be broken mostly by poor people. That doesn’t matter one bit. If the law has a valid purpose and doesn’t violate rights (not in this case, IMO, but that’s a different argument), and it applies in wording and in practice to each offender, then it’s equal protection. A similar law that only singled out poor people, however, would fail the equal protection test.
Back to the main case, this ruling (Michael M. v. US) and the law it upheld were not instances of equal protection. A law against rape in general, however, would be fair, even though it’s more likely to target men (duh.) I even think that a rape law specifically defining rape as penis-in-vagina might be OK, if it could be proved that this was (in terms of harm, results, etc.) significantly different from oral/anal/digital/etc. rape. This ruling fails to meet that qualification because, even
The correct conception is pretty much right there in the wording, and you yourself seem to have conceded that by the time the feminists were done with it, the new “meaning” was worlds apart from the original.