Meta-Blog

SEARCH QandO

Email:
Jon Henke
Bruce "McQ" McQuain
Dale Franks
Bryan Pick
Billy Hollis
Lance Paddock
MichaelW

BLOGROLL QandO

 
 
Recent Posts
The Ayers Resurrection Tour
Special Friends Get Special Breaks
One Hour
The Hope and Change Express - stalled in the slow lane
Michael Steele New RNC Chairman
Things that make you go "hmmmm"...
Oh yeah, that "rule of law" thing ...
Putting Dollar Signs in Front Of The AGW Hoax
Moving toward a 60 vote majority?
Do As I Say ....
 
 
QandO Newsroom

Newsroom Home Page

US News

US National News
Politics
Business
Science
Technology
Health
Entertainment
Sports
Opinion/Editorial

International News

Top World New
Iraq News
Mideast Conflict

Blogging

Blogpulse Daily Highlights
Daypop Top 40 Links

Regional

Regional News

Publications

News Publications

 
What’s the Difference?
Posted by: Dale Franks on Thursday, March 17, 2005

In the comments section to a previous post on gay marriage below, Jon bought up the subject of polygamy and incest, and found what one usually finds: an absolute refusal to address the question honestly.

I suppose I should state at the outset that I don’t believe there should be laws regulating homosexual conduct, or adultery—or prostitution, for that matter. But it is one thing to support fairly liberal public policy vis a vis consensual activities between adults, and quite another entirely to say that the Constitution protects such activities. This is a volatile issue, mainly because the whole concept of a Constitutional right to privacy is so broad that the ripples from it impact on all sorts of issues, and mainly in a negative way.

If the right of privacy means that consensual adult activity A is protected, then one must explain why consensual adult acts B, C, and D are not. As a practical matter this means that if there is a protected right to consensual homosexual activities, then one must explain why incest, wife-swapping, and polygamy between consenting adults are not equally protected1. You cannot argue both that the state must allow homosexual marriage as a right, because it has no compelling interest in what goes on in the bedrooms of consenting adults, while at the same time, refusing to acknowledge that such a principle automatically includes both polygamy and incest between consenting adults.  Either the right to such privacy exists, in which case it is universally applicable, or if it is not universally applicable, then it cannot be a constitutional right. 

To those who argue that homosexual marriage is a right, while polygamous or incestuous marriages are not, let's try out that argument with another Constitutional right, such as the freedom of religion.  If the Constitution said you were free to practice any religion you wished, except Roman Catholicism, could we be truly said to have freedom of religion?  What Constitutional principle would make being a Presbyterian a legitimate exercise of religion, but Roman Catholicism an unprotected religious activity?

Yet, that is the same argument you are making when you argue that a right to privacy that covers consensual sexual behavior between adults only covers the behaviors you like, but not the ones that are, you know, icky.  You simply can't have it both ways.  Either consensual sexual activities between adults are protected by a right of privacy or they are not.  We cannot pick and choose between those we want to see protected.

The distinction between heterosexual marriage, homosexual marriage, and consensual polygamy or incest is a legislative distinction, therefore, and not a Constitutional one.  Only legislatures can make weighted decisions about the degrees to which behaviors can be condoned.  Only legislatures can make legal distinctions between homosexuality, or polygamy.  It is the nature of legislation to make such distinctions, just as it the nature of Constitutional jurisprudence to lay down principles of universal applicability.

This is why I believe the whole right to privacy concept is hogwash.  Now, practically everyone says that the right to privacy is settled Constitutional law. Well, maybe, but the limits have never been settled, and it seems to me that fairly close limits have to be applied to such a right, especially as it is a judicially-created right that does not explicitly appear in the Constitution.

As I mentioned before, the key criteria a right must meet before it is recognized as such is that it must be deemed "implicit in the concept of ordered liberty," or "so rooted in the traditions and conscience of our people as to be ranked as fundamental." The Supreme Court declared abortion to be one of these rights in 1973. The ensuing 30 years of controversy, public protest, and bitter acrimony seems to argue against the court's position that the right to abortion was "so rooted in the traditions and conscience of our people as to be ranked as fundamental," since such a large percentage of the population disagrees with it. Indeed, the current filibuster in the US Senate over the matter of Bush judicial nominations revolves almost solely around the issue of abortion.

Rights that are "implicit in the concept of ordered liberty," or that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental" don't usually divide the nation 50-50. Indeed, by definition, they cannot. If they are so controversial, how can they possibly be deeply rooted in our history or traditions? No, it seems to me that the right of privacy as it has been extended by the Court does nothing more than create new "rights" about which the framers were entirely unaware.

As a result, there has not only been bitter public acrimony, but the very operation of government and judicial selection has been tainted by reference to it. That’s a pretty widespread effect for a right that is never mentioned in the Constitution.

The Framers didn't mention quite a lot of things, as it happens. And the reason they did not was because, outside of proscribing a range of specified, inviolable rights, they left the state and national legislatures free to make whatever rules that seemed best to the polity they represented. The proper place to define such privacy limits beyond those fundamental to the concept of ordered liberty is the legislature, not the courts. If we wish to enshrine new rights into the Constitution, the proper place to do so is through amending that instrument, not through judicial fiat whereby five out of nine lawyers in Washington DC promulgate rights at their discretion.

The whole area of judicially-created privacy rights has led to nothing but controversy that has poisoned political discourse. As a result it has politicized the Court to such an extent that the very process of selecting and confirming judges has been tainted. When interest groups are protesting regularly in front of the Supreme Court's steps, that's a pretty good indication that the Court is engaging in political rather than judicial activity.

And that, ladies and gentlemen, is the whole problem with the concept of a Constitutional right to privacy. Constitutional rights are first principles from which all other political actions flow. Once you set down a Constitutional rule, you have to recognize that, if broadly applied—and in general, that is how they must be applied—it is going to cover a lot of things that you might not have thought about.

Constitutional rules are hard to limit to one specific subset of circumstances, denying the remainder of the superset. Constitutional rights are blunt instruments, not scalpels, and that is precisely what they are meant to be. That is why the Framers created a limited set of 10 rights in the Bill of Rights. The rest they left up to us, to decide by the political process, or the process of amendment.

What they did not intend was for the Courts to create new rights without any sort of audit by either the citizens or their representatives. None of this is to say that anti-sodomy, or anti-adultery, or anti-prostitution laws are wise or just. I personally don't think they are, and I am not interested in having the armed agents of the state popping by to cart me off to jail because I'm having sex outside of marriage, or because I’m spending some of my disposable income to procure some company for the evening.

But the Constitution's purpose is not to prevent the passage of unwise or silly or useless laws. It is to prevent the passage of tyrannical laws that sever the activities of the government from public audit. Somehow, we've lost sight of that simple purpose, and have taken to treating the Constitution as some sort of rights-dispensing machine, because it's easier to have the courts declare our pet cause to be a "right", than it is to convince 50% + 1 of our fellow citizens to vote for it.

To the extent that we treat the Constitution in that cavalier way, we move closer to a non-democratic form of government where public policy is decided by whatever 5 out of 9 robed lawyers believe at a particular moment. And whatever those 5 lawyers believe, we'd better reconcile ourselves to it, because their opinions cannot be trumped by the regular political process. Now, maybe that wouldn't be bad if all nine justices were the perfect incarnation of Plato's philosopher-kings, but they aren't. And once they've decided, the only way to overturn it is by amending the Constitution. And we've only been able to do that 27 times in more than 2 centuries. And 10 of those were passed immediately after ratification.  

____________________

1Please spare me, by the way, the impassioned arguments about intimate congress with children or animals.  The fact that neither children nor animals can provide consent makes such arguments utterly foolish.  We are talking about only consensual, adult behavior here.

 
TrackBacks
Return to Main Blog Page
 
 

Previous Comments to this Post 

Comments
B-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a!
 
Written By: Bill from INDC
URL: http://www.indcjournal.com

Ah, the famed ’slippery slope’ argument.  It goes like this: ’’Opening the concept of marriage to any interpretation will lead to a slippery slope for any type of relationship to emerge as the new norm.’’

This is patently offensive. It says that if a loving gay couple can marry, we will have to allow a zookeeper somewhere to marry his monkey.  Then, we have to allow Jethro to marry 8 women.  We have to allow dad to marry his daughter.

There are only two sexes, male and female. There are also only two sexual orientations—heterosexual and homosexual, and there is more than persuasive  proof that something genetic helps determine why we are one way or the other. Anything else, such as sex with animals, is not based in sexual orientation. It’s based in sexual behavior. There is no slippery slope.  We are talking about monogamous, committed relationships between two unrelated people.

Gay couples do not have to demonstrate that they would benefit from being married - science bears it out.   Studies on polygamy are limited, but suggest it may be harmful.  And do I really need to call a geneticist in to tell us what happens when close cousins reproduce?  The horrors of inbreeding can be witnessed on our Senate floor every day.  Just look at Rick Santorum!

 

 
Written By: Thom413
URL: http://www.qando.net
Let’s turn this around.

Why don’t you devote your energies to tearing down the alleged Constitutional "fundamental freedom" to heterosexual marriage? Why confuse the issue with homosexual marriage, much less polygamy or incest?

Loving v. Virginia is almost 40 years old; Zablocki v. Redhail almost 30. Ball’s in your court.

 
Written By: Mithras
URL: http://
 This is patently offensive. It says that if a loving gay couple can marry, we will have to allow a zookeeper somewhere to marry his monkey. 

Apparently, you are unable to read for comprehension.  Try reading the post again.  Slowly.  Sound it out.  Try re-reading the bit where I say that neither children nor animals can give consent several times.

Maybe consult a dictionary.

 
Written By: Dale Franks
URL: http://www.qando.net
Why don’t you devote your energies to tearing down the alleged Constitutional "fundamental freedom" to heterosexual marriage?

Because there isn’t one.  We can abolish marriage completely by an act of the legislature, if we so choose.

How’s that?

 
Written By: Dale Franks
URL: http://www.qando.net
It’s based in sexual behavior. There is no slippery slope.  We are talking about monogamous, committed relationships between two unrelated people.

No.  We’re not.  We’re talking about a constitutionally protected right to privacy.  You say it exists.  Fine.  I say I want to do it with two chicks.

Why isn’t that Constitutionally protected?  Why do you want to discriminate against me because of my loving, committed, relationship with the two beautiful women in my life.  What are you?  Some kind of Polyphobe?  How dare you deny our love!  What if I get sick?  Do you want to deny one of my wives the ability to come visit me in the hospital?  To deny her the ability to inherit my property if I die?

Why do we have to be second class citizens based on who we love!?

 

 
Written By: Dale Franks
URL: http://www.qando.net
Oh, and I’m a traditional Mormon, too.  Why are trying to deny my religious freedom?
 
Written By: Dale Franks
URL: http://www.qando.net

And here’s where your intellectual dishonesty is exposed.  If all we need the judiciary for is to restate what the legislature has already stated, what are they there for? We can all read, even if some of us have to sound it out so that a second-string law student can be snarky in his blog.  And I don’t need a dictionary to know the meaning of the term ’circular logic’.  It’s all over your post. 

The answer is that the judiciary exists to make sure that the majority doesn’t trample on the minority.   In other words, that rights apply to all equally.  You might want to sound out the part of my post where I say that we are talking about the rights of two monogamous, committed, unrelated people.  Not multiple people.  Not related people.  Where are they in this debate?

If those groups want to come forward and state their rights to the court, they may.  But I don’t see them doing so, do you?  Have any of them filed suit?  Petitioned the legislature for equal rights.  Do we have domestic partnership laws drawn up by Senator VC Andrews for brothers locked in attics with sisters for decades?  Are the Mormons making a case that they should be able to file tax returns for a harem?

No. They aren’t.  Here’s why your argument is offensive.  You think marriage rights should be determined solely by the legislature, knowing full well that a group affected by this legislation will not have their rights protected. So you trot out polygamists and incestous couples like a show pony.  You know full well what the differences are, you just choose not to see them.

 

 

 
Written By: Thom413
URL: http://www.qando.net
Why don’t you devote your energies to tearing down the alleged Constitutional "fundamental freedom" to heterosexual marriage?

Because there isn’t one.  We can abolish marriage completely by an act of the legislature, if we so choose.

How’s that?

Well, IANAL, but what are those cases I mentioned about, if not a right to marry? Or the consider the excerpt below from Turner v. Safley, which the Supreme Court issued in 1987. This concerned a Missouri law that prohibited prisoners from marrying:

In support of the marriage regulation, petitioners first suggest that the rule does not deprive prisoners of a constitutionally  protected right. They concede that the decision to marry is a fundamental right under Zablocki v. Redhail (1978), and Loving v. Virginia (1967), but they imply that a different rule should obtain "in . . . a prison forum." Petitioners then argue that even if the regulation burdens inmates’ constitutional rights, the restriction should be tested under a reasonableness standard. They urge that the restriction is reasonably related to legitimate security and rehabilitation concerns.

We disagree with petitioners that Zablocki does not apply to prison inmates. It is settled that a prison inmate "retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. ... [snip]

Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context....

So you’ll at least have to do a little work to substantiate your claims that we "could abolish marriage completely by an act of the legislature" and "there isn’t [a Constitutionial right to marry]". You might be right, but you’d have to show why a whole series of Supreme Court decision are in error; we can’t just accept youridea without argument.

And again, if this is really the foundation of your argument—that there is no Constitutional right to marry—then to simplify things you should begin with these three Supreme Court rulings I mentioned, rather than homosexual marriage, for which the judicial precedent is very much in flux.

 
Written By: Mithras
URL: http://
And here’s where your intellectual dishonesty is exposed.  If all we need the judiciary for is to restate what the legislature has already stated, what are they there for?

I never stated, nor even implied, that was all the judiciary was there for.  In matters where the Constitution  is controlling, the judiciary has the power to strike down laws that conflict with it.  In matter where the Constitution is not controlling, the judiciary’s job is to apply the law to the cases that arise from it.

We can all read, even if some of us have to sound it out so that a second-string law student can be snarky in his blog. 

Apparently not, since your first response was to use a straw man I had explicitly disavowed.

The answer is that the judiciary exists to make sure that the majority doesn’t trample on the minority.   In other words, that rights apply to all equally. 

No.  The Constituion exists to protect the rights of the minority.  The Judiciary exists to apply its provisions.

You might want to sound out the part of my post where I say that we are talking about the rights of two monogamous, committed, unrelated people.  Not multiple people.  Not related people.  Where are they in this debate?

But yet, you seem unable to explain why a generalized right of privacy doesn’t apply to all consensual relationships betwen adults.  You seem unable, beyond bald asswertion, to defend why there is only a right of privacy that extends between two adults, and not some other number.  Oh, yes, and the two adults cannot be too closely related.  Otherwise, they have no privacy rights.

So, what is your basis for denying a generalized right of privacy to those adults, while preserving it for others?

If those groups want to come forward and state their rights to the court, they may.  But I don’t see them doing so, do you? 

Why, yes I do.  Why do you ask.

You think marriage rights should be determined solely by the legislature, knowing full well that a group affected by this legislation will not have their rights protected.

I think marriage is not a right, therefore it should be controlled by the legislature.

So you trot out polygamists and incestous couples like a show pony.  You know full well what the differences are, you just choose not to see them.

No, I hionestly don’t know what the differences are.  And you haven’t explained them either, so I’m not sure you do, either.

 
Written By: Dale Franks
URL: http://www.qando.net
So you’ll at least have to do a little work to substantiate your claims that we "could abolish marriage completely by an act of the legislature" and "there isn’t [a Constitutionial right to marry]". You might be right, but you’d have to show why a whole series of Supreme Court decision are in error; we can’t just accept your idea without argument.

I don’t beleive in any generalized right to privacy.  So I beleive the whole train of court decisions from Griswold on were incorrectly decided.

I beleive Plessey v. Ferguson was invalid on it’s face, too, but it was the controlling authority behind Jim Crow for three generations.  Presumably, therefore, you believe that similar arguments against the sparate but equal doctrine were illegitimate until 1954, when they magically became legitimate constitutional law thanks to Earl Warren.

I on the other hand, see that whole period as a perfect illustration of the dangers inherent in an unchallenged authority being given to the Court.

 
Written By: Dale Franks
URL: http://www.qando.net
And here’s where your intellectual dishonesty is exposed.

Please, save the antagonistic stuff for somebody else, Thom.   As Dale notes, you’re not exactly making a case.   You’re claiming that this is a matter of "equal rights" for everybody....except for some people.  If marriage is a "right", then why can polygamists not engage in it?   Or a brother and sister?   I mean, it’s a right

You reject the idea that marriage is defined as 1 man/1 woman, excluding homosexual relationships.    But then you assign it another set of artificial definitions.   If marriage cannot be defined as 1 man/1 woman, then how is it defined?  And why does it exclude anybody if it’s an equal right.
 
Written By: Jon Henke
URL: http://www.QandO.net
Jon and Dale, I reiterate that you should make this case with regards to heterosexual marriage, beginning with Loving v Virginia, rather than dragging in the controversy over gay marriage.

The slippery slope begins there, does it not?

It appears that you believe that finding a right to heterosexual marriage, as the Court did in striking down laws prohibiting interracial marriage as unconstitutional, implies a right to polygamy and incestuous marriage as well, correct?

Or do we only begin sliding at gay marriage? Would you say that while you disagree with it, such a heterosexual marriage right does not imply polygamous and incestuous rights, since (like homosexuality) these things are not well established human custom?

 
Written By: Mithras
URL: http://
No true libertarian can support same-sex marriage (SSM) because it would represent a violation of the basic principle of limited government.  Here is the simple and irrefutable argument against SSM.

1. Marriage is a consenual personal  relationship.
2. The Government has no business regulating consenual personal relationships.
3. Therefore the Government shouldn’t regulate marriage.
4. But marriage is public institution thanks to tradition  and culture and this is wrong due to 3.
5. SSM isn’t a public institution yet
6. If 4. is wrong because then SSM certainly is wrong under 3.

The logic of 2: Why should the government be required to regulate and license consenual personal relationships? The only reason would be #1 . Compelling state interest in that relationship. What could constitute compelling state interest in personal relationships? Answer: Only one thing; is the relationship could produce #2 . more citizens or physical social product ie. things that government has an obligation to protect.. Why? Because the Government doesn’t have interest in the #3. the immaterial properties of a relationship just the  #2 . physical products. The relationship capable of producing physical products of concern is Heterosexual by definition. However, since not all heterosexual relationships can produce such products the only arugment that can be used for the regulation some heterosexual relationships is that #4. some are most likely to produce children or traditional Heterosexual marriage. However, this is dubious in some respects. The reason it is accepted is tradition. Since by definition SSM is not #4 and limited to the properties of #3. and therefore is not #2 and therefore cannot meet condition #1 although #4 "can" through somewhat dubious logic. If #4 is dubious then SSM is incredulous. Q.E.D.

 
Written By: Septeus7
URL: http://
I’d have to agree with Jon and Dale; I can’t see why the traditional taboos against incest and polygamy are any more constitutionally unassailable than those against gay marriage.  I remember a long discussion on Free Republic about it when Senator Santorum got in hot water two years ago.<p>

<a href="http://www.freerepublic.com/focus/f-news/899413/posts">One interesting tidbit:</a>
Twenty States and DC already allow first cousins to marry.  And that includes red States like Alabama and Texas, and blue States like California and Massachusetts.<p>

Personally, I’m more relaxed about the possibility of incestual and polygamous marriages than I am about gay marriage.  But maybe that’s just because the same person appears six times in my family tree.
 
Written By: Aaron
URL: http://
Just a stupid qiestion, but isn’t the root of marriage in religion? It seems to me that some people want it both ways.
 
Written By: Wilky
URL: http://
Once more, with proper formatting:

I’d have to agree with Jon and Dale; I can’t see why the traditional taboos against incest and polygamy are any more constitutionally unassailable than those against gay marriage.  I remember a long discussion on Free Republic about it when Senator Santorum got in hot water two years ago.

Twenty States and DC already allow first cousins to marry.  And that includes red States like Alabama and Texas, and blue States like California and Massachusetts.

Personally, I’m more relaxed about the possibility of incestual and polygamous marriages than I am about gay marriage.  But maybe that’s just because the same person appears six times in my family tree.

 
Written By: Aaron
URL: http://
Or maybe not.  Now the link’s gone entirely.
 
Written By: Aaron
URL: http://
Okay, Dale. You lost me when you wrote:
 
"...outside of proscribing a range of specified, inviolable rights, they left the state and national legislatures free to make whatever rules that seemed best to the polity they represented..."
 
What specific inviolable rights did you have in mind? Because that’s isn’t my understanding of the groovy evolution of Constitutional law at all.
 
In The Virginia and Kentucky Resolutions, for example, Thomas Jefferson went out of his way to trumpet the sovereign right of state governments to violate any damn Constitutional protection they pleased:
 
."..no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged..."
 
Justice John Marshall institutionalized that conventional understanding in Barron v. Balitmore (1833):
 
"The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government...Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention."
 
It wasn’t until 1925 that the Bill of Rights as a whole began to be forced, awkwardly, through the door of the 14th Amendment. In Gitlow v. New York (1925) the Court, revolutionarily, decided:
 
"For present purposes we may and do assume that freedom of speech and of the press which are protected by the 1st Amendment from abridgement by Congress are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States."
 
A right as hallowed as the free exercise of religion wasn’t deemed sufficiently "implicit" to Cardozo’s concept of "ordered liberty"—and therefore considered at all applicable to the States via the 14th Amendment—until as recently as 1940 (Cantwell v. Connecticut).
 
All of this is crucial because if—as clearly seems to be the case—no Constitutional rights whatsoever were originally intended to protect citizens from the whims of their state legislatures, the "penumbras" of the right to privacy aren’t significantly different from any other judicially created or "selectively incorporated" right: they’ve all been bequeathed, in one way or another, by the High Court. 
 
Case law has gradually become more and more about grasping around for legitimate sounding arguments to accomplish what the Founders not only didn’t intend, but actively worked to prevent. Scalia and others supposed "strict constructionists" may kvetch about this example of judicial activism or that one (while ignoring, you notice, others) but the entire corpus of modern Constitutional law is founded on social and political re-engineering.
 
Scalia (and Cardoza, assuming he were still above ground) would likely argue that, unlike the free exercise of religion, the free exercise of marriage isn’t sufficiently rooted in our weirdly beloved Puritan "traditions." One effortless retort to such an argument, however, is that various religious practices, such as Satanism (or even Buddhism), also aren’t rooted in those traditions. And if you should argue successfully against "penumbras" and privacy rights, your opponents will just turn to inventive Equal Protection and Due Process arguments for their sweet remedies. Once the entire judicial system has be repeatedly jury-rigged, as it has been, there’s really no firm principle left to take refuge behind. (Even for scowling Scalia.) All that’s left, it seems to me, is emotional "persuasion" dressed up in fancy rhetoric.
 
(Listening to the Religious Right lecture secularists and sexual progressives that their supposed "rights" aren’t in the Constitution, when religious rights actually aren’t in there either—at least not in any sense religious righties would appreciate if their States banned the exercise of their religion and then dismissed their complains on the same grounds they use to dismiss the complaints of others—is certainly entertaining. But depressing, too.)
 
The Court’s latest judicial tinkering (that cute "evolving standards of decency" business) is just the latest example of a long accepted habit of, um, making shit up. We’re reaping today what Gitlow v. New York sowed back in 1925. I honestly don’t think there’s any way to undo one example of tinkering without first undoing the dubious intellectual underpinnings of all of them.
 
And I don’t even know if that’s wise at this late date—even if it were feasible.
 
As Bill O’Reilly would bloviate: "Am I wrong? I’m right. Aren’t I?"
 
 
Written By: dan
URL: http://soundandfury.typepad.com/
What specific inviolable rights did you have in mind? Because that’s isn’t my understanding of the groovy evolution of Constitutional law at all.

Initially, the Constitution didn’t apply to the states at all.  Massachussetts, for example, had an official state church until 1826. Theortically, states could be as tryannical as they pleased.  The Bill of rights did, however, prevent the Federal government from violating those rights.  The general feeling was that ststes would, being much smaller jurisdictions, be resistant to tyranny in a way the federal government would not.

That turned out not to be entirely true, as it turned out.  After the 14th Amendment, the Court’s reading of that Amendment was that the 4th Amendment incorporated the protections of the Bill of Rights to the states.

I think that the incorporationist doctrine is a reasonable reading of the 14th Amendment.

I’m not sure why you think this conflicts with my statement, however, that oustide a narrow range of exceptions, state and federal legislatures were essentially free to legislate as they wished. 

Perhaps you think I was implying that initially the Bill of Rights applied to the states, which I did not intend, but my language was probably too imprecise. But, I’m not writing an amicus brief here.

 
Written By: Anonymous
URL: http://www.qando.net

I find this entire discussion both fascinating and disgusting.

 

I don’t have a problem with homosexuals.  I love homosexuals.  If you want to know why, visit San Francisco.  Gangs of lonely, frustrated women dragging you off the street, ripping your clothes off, having wild group sex with you,  making you think you’re Elvis Presley.  Is any real man going to object to that?

 

But we’re not talking about sex.  We’re talking about marriage.  The problem here is that a lot of people are unwilling to recognize the simple truth.

 

There is a reason why Jesus sanctified marriage as the highest sacrament in His churh.  Because the union between a man and women brings forth new life.  It is in fact a sacred act.

 

Yeah, yeah, yeah, almost every culture and religion recognizes "marriage."  That is irrelevant to the truth that Jesus came to bear witness to.  In the sacred union (man + woman = child), the male and female are coequal partners.  Thus, the institute of marriage, in the Catholic faith, elevates the female to the equal of the male.  This is not the same institution as in say the Islamic faith, in which the female remains the property of the male.

 

Something happened some 2,000 years ago.  And it civilized the Western world.  Jesus sanctified marriage as a sacrament in His church.  This singular act elevated the status of women and children to the equal of men.  Every idea we have today of equality, freedom, liberty ulitmately descends from this singular act.

 

I am not a Jesus freak.  I am a well educated, widely read student of the human experience.  But I am not ignorant to the undeniable events of history.

 
Written By: Scott
URL: http://
Assuming that "Anonymous" is Dale, you wondered: "I’m not sure why you think this conflicts with my statement, however, that outside a narrow range of exceptions, state and federal legislatures were essentially free to legislate as they wished."
 
I realize you aren’t writing an amicus brief—though even an average Franks post is often more thoughtful than some briefs I’ve come across. And I did assume you were referencing the Bill of Rights when you claimed that there are certain "inviolable rights" that the States have historically been Constitutionally constrained from violating. You left a similar impression in the bit I quoted above when you implied that both state and federal legislatures are equally constrained—albeit both within "a narrow range." (Aside from collective actions like printing money and making treaties and so on, I think you’d agree that there were originally no exceptions whatsoever to state sovereignty.) 
 
The point I’ve been trying to make is that I don’t think Americans sufficiently appreciate the extent to which selective incorporation has transformed our jurisprudence from one of categorical principle to one of casual heuristics: state’s rights arguments are occasionally (almost nostalgically) indulged today, but otherwise rarely respected; and strict constructionist arguments, like the one you seem to be making regarding "marriage," are bruised before they begin by the background fact that no one has constructed the constitution with reliable "strictness" since Gitlow v. New York. Isn’t that the overlooked elephant in the room during debates about activist Courts? 
 
I honestly don’t see how one can concede that incorporationist doctrine is reasonable, and embrace Cardozos’ novel "ordered liberty" conception (a Constitutional "penumbra" no more textually tangible than an implied "right to privacy") while simultaneously arguing that SCOTUS should conform to the explicit intent of the Framers and refrain from discovering "new" rights as an easy remedy for raging political controversies. 
 
Seems contradictory to me. But, as I’m sure you’ve noticed, I’m no lawyer. 
 
Written By: dan
URL: http://soundandfury.typepad.com/

Scott,

While I certainly appreciate your religious convictions and your discomfort with being branded a "Jesus Freak," if you don’t somehow manage to distinguish between immutable beliefs founded on faith v. provisional beliefs founded on facts, I suspect you’re going to remain chronically disgusted by the godless discourse other people insist upon engaging in. And that doesn’t sound like much fun at all.

 
Written By: dan
URL: http://soundandfury.typepad.com/
When this idiocy first came up, I said that if fringe benefits were taxed as ordinary income the pressure for same sex marriage would disappear. This is all about geting one’s homosexual lover on company paid medical, a way of sneaking a raise past the contract. Are homosexuals desirous enough for wedded bliss that they would give up the tax free benefits to get it? I doubt it.
 
Written By: Walter E. Wallis
URL: http://
Ok, I’m gonna speak up as a gay man who married his partner (now husband) in Massachusetts (the Cradle of Liberty) last year. We didn’t do it for the benefits. Despite that our families had been tripping over us for nearly two decades, all of a sudden we were getting the "welcome to the family" speech that gets trotted out for the those about to be married. Grownups, who want their relationships to be taken seriously, get married. We’re grownups (one seriously dull and suburban male couple) and we didn’t care what anyone thought or what we’d get. People marry. People have been marrying since long before the putative activities of Jesus, and until the 12th century, it was a matter for the civil authorities. Those are your marriage traditions. I married. And I haven’t seen a single benefit I didn’t have before the marriage. I do have a very nice wedding ring, however. And we did receive some lovely gifts. Our ceremony was nominally Jewish, and we said the words that seal a Jewish marriage: I am my beloved’s and my beloved is mine. So don’t look for tortured arguments as to forbid same-sex couples from marrying. Just look at them, smile, and say "mazel tov!"
 
Written By: JD
URL: http://www.qando.net

JD wrote:

People have been marrying since long before the putative activities of Jesus, and until the 12th century, it was a matter for the civil authorities.

Yes JD, and those "marriages" always involved a woman and a man. As a tradition it has always involved a duality of the sexes. And it is a tradition that has spanned all cultures, all times, all religions, and cultures with no religion. So, by definition, the only commonly accepted definition of marriage has been woman/man.

We may disagree with this definition and believe we have outgrown it, but it is an issue that requires public input, not judicial overreach. Because marriage goes to the core of family and biological offspring, the issues revolving around it are  deeper and have wider implications then the love of two adults only. 

I believe the above arguement is that this issue is one for legislators to deal with. I agree. Fundamental change to a historic rite requires broad public input and support.

 
Written By: paul
URL: http://www.qando.net
It never ceases to amaze me how many people cannot understand the principle explained in Dale’s post.  Relying upon the right to privacy (or equal protection) as a basis for declaring a ban on gay marriage unconstitutional doesn’t lead to a "slippery slope".  And explaining how courts must extend that same right to practitioners of  polygamy and incest is not comparing homosexuality to either of those practices.  The right to privacy is a legal right that was created in a court of law by a lawyer (i.e. a judge) in the course of adjudicating a lawsuit (Griswold v. Connecticut).  This is a legal issue and Dale was discussing the law regarding gay marriage.  From a legal standpoint, if homosexuals have a constitutional right to marry, so must consenting adults in other types of relationships that are currently excluded from marriage. 

Thom14, you need to take a deep breath, let the gerbil running on the little wheel in your head get up to speed and try as hard as you can to understand this obvious point.  The right to privacy applies equally to homosexual, polygamist and incestual relationships and practitioners of one may not receive constitutional protection without the others receiving that same protection.  It isn’t gay bashing to argue against judges creating a right to gay marriage.  Dale is merely pointing out the mess created when a judge assumes the role of  a legislature.

[By the way Dale, your post is the most articulate, clear and persuasively argued writing on this issue that I have ever read.  You should do the public a service and submit it for publication everywhere you can think of and I’m not just trying to kiss up to you.]



 
Written By: Anonymous
URL: http://www.qando.net

I don’t say this in an obnoxious or mean way, but obviously none of you understand the law. 

The reason that equal protection applies to SSM but not incest is easy - there is no valid government interest (indeed , no rational interest) in preventing gay marriage.  That is, there is no provable harm to society by allowing gays to marry.  In fact, there are only benefits (ie, government does not have to support gay partners when something bad happens - they have each other’s income for support; more monogamy prevents the spread of social diseases, etc. ). 

Incest is a easily differentiable.  Incest inevitably leads to genetic problems due to inbreeding - please check out the royal families of Europe.  Therefore there is  a valid state interest in preventing inbreeding as genetically introduced diseases will be a drain on the state.

Polygamy is a bit harder issue.  The rational argument is that a person may have as many mates as they can support.  However, I think it’s pretty clear that most folks barely can support themselves and a partner.  Add the possibility of a proliferation of children, and you can easily make an argument that they will become wards of the state because the polygamists cannot support the brood.  Therefore, a valid state interest.

 

 
Written By: Anonymous
URL: http://www.qando.net
<blockquote>Apparently not, since your first response was to use a straw man I had explicitly disavowed.</blockquote>
In fact, since that zookeeper has the same right to marry other persons that the rest of us have, it would be more correct to say he was using a straw monkey.

I have to question the arguments raised here against polygamy. It can be demonstrated that some manifestations of it have been harmful to the participants, but that derives from lack of consent. In today’s society and economy, there is no reason why some of the spice could not be generating income while others are raising the brood, thus taking away the burden on the state claim.

 
Written By: triticale
URL: http://triticale.mu.nu

Ah, the famed ’slippery slope’ argument.  It goes like this: ’’Opening the concept of marriage to any interpretation will lead to a slippery slope for any type of relationship to emerge as the new norm.’’

This is patently offensive

Yes, but it’s also true that suits against laws regarding Poligamy have been recently renewed in earnest; particularly in states where homosexuals have gains the lgeal nod to "marry".

Which, I think, would seem to give your argument some problems.

 

As a cultural conservative, I have always held that it is the government’s original purpose to support the values of the culture that established it.

 

Therefore, we cannot simply de-establish marrige, as Dale insists we can, if government is holding to it’s original purpose. By the same token, then, neither can we, as Dale points up, ’normalize’ things by law that are not ’normal’ in the culutre, by saying (Without merit, I think) that the constitution ’protects’ such.

 

As I’ve pointed out previously, culture always trumps government.

Adding governmental ’protections’ where the government provides none is the surest way I can think of to relegate the government to total impotancy. Witness the Soviets, Witness also, the Nazis. In both cases, government tried to impose new cultural values. IN both cases the government lost.

 

 
Written By: Bithead
URL: http://bitheads.blogspot.com

If we begin by looking at the consensual adult question we eliminate child marriage, and bestiality.

Then, if we look at any obvious, physical problems that the society has an interest in avoiding, I think immediate family incest can be excluded from marital rights.

But after these, polygamy and gay marriage, would seem to have a valid argument to be included in marital legislation.

 
Written By: Anonymous
URL: http://www.qando.net

JD Wrote:   

"I haven’t seen a single benefit I didn’t have before the marriage. I do have a very nice wedding ring, however. And we did receive some lovely gifts."

I’m curious—if the reasons you got married had nothing to do with the LEGAL construct of marriage, then what does it matter if your marriage was condoned by the state or not?  Would your family have refused to see your relationship as "real" if you’d simply gone through the ceremony without signing a marriage license? 

Honestly, my view on the whole marriage thing is that the government should only issue civil union licenses, to heterosexual or homosexual couples.  I don’t see why a pair of people who simply want to be considered a single "family" unit would have to be having SEX to get the legal benefits, so I see no reason to restrict closely related family members from obtaining a civil union license.  (As for polygamists, I have no serious objections, but I wonder how extending these benefits to groups larger than two would affect the economics of it all.)  People who want to be "married" can do so in whatever ceremony they choose—it’s just a formal declaration of the relationship after all, and if WHO you choose to formally declare the relationship to doesn’t really matter to me.

 
Written By: Robin S.
URL: http://www.onestackmind.com/mt/

To your point, Robin, let’s be honest enough to say that restricting civil unions as such, would not be enough for them. They want to alter the culture and it’s perceptions by means of law. That’s what this has always been about.

 

 

 
Written By: Bithead
URL: http://bitheads.blogspot.com
You want me to feel good about your homosexual marriage? You are going to force me to feel good about your homosexual marriage? Fat chance.
 
Written By: Walter E. Wallis
URL: http://
So many neolibertarians, so little time. Let’s start off with specifically replying to Winky: the root of marriage is in civil law. My point was that in the 12th century, the religious authorities hijacked this. The middle ages also saw such things as wills needing the approval of your bishop (a move that increased bequests to the church). As for Robin, well I do hope to eventually have some legal benefits. The real goodies come from the Federal government, although many of the ones that will apply some day deal with inheritance, so I’m in no big hurry to collect on them. With my family, it probably was the ceremony that made it real for them, but since neither of us are conventionally religious, a religious ceremony didn’t seem right. We were married under Massachusetts law. Certainly, under current law a couple does not have to have sex to make it a legal marriage. And having sex doesn’t make you married. But the government isn’t ever going to get out of questions of who is a family, since it’s a useful distinction for adjudicating questions of property law. (Massachusetts law, for example, does not allow you to secretly cut your spouse out of your will.) No, the government belongs in marital law. Clergy is optional. The religious authorities need to stop their improper intrusion into marriage. Then there’s Walter. No, I don’t give a damn how you feel about my marriage. That’s the whole point. You’re a stranger and you don’t get to opine. Likewise, you don’t care about any judgment I might make on your relationships. It’s irrelevant. It’s none of my damn business about with whom you decide to live your life. Whether you marry a same-sex or opposite-sex partner, or never marry, I don’t care. I expect the same from you. As a result, you don’t get to offer disapproval of my relationship. Equal protection under the law entitles me to these rights. What you feel, good or bad, is irrelevant.
 
Written By: JD
URL: http://www.qando.net

Well this winky is with Robin. In fact, when we were kids, the adults made sure we knew when others got married if it was religious or civil. Personally I don’t care, gays deserve the same rights as any other couple, but I don’t quite see why it must be called marriage. It does seem its one of many attempts to destroy part of our culture.

 

And JD, 12th century? You got to go a little further back to catch up with Scott.

 
Written By: Wilky
URL: http://

JD; The context of that statement can be found in lesser amounts, on any stable floor. "Equal protection under the law" is regards the government, not society. What those seeking these additional rights are after is the government, over-ruling society. And as I’ve pointed out, that never works to the advantage of either.

 

Never.

 

 
Written By: Anonymous
URL: http://www.qando.net
I have no idea what Anonymous is talking about, but maybe it’s because my background is language and literature. Once again, I don’t give a damn what you or your local clergyman thinks of my relationship. There’s no shortage of clergy willing to bless the union of two boring middle-aged men. Trust me. I want the government to recognize that I deserve equal protection under the law. If, as a result, the neighbors choose to distain me, I can cope with that. Me, I’ve got neighbors who threw a party when I got married. Anonymous may think that gay people want social acceptance, but really, it’s just the cash, baby. We want the bennies that our straight siblings get. Take it from the queer boy. Don’t project. Disdain me all you want. I don’t care; I have stuff to do (I’m a DINK, after all—double income, no kids). I don’t care what you think, as long as you keep your grubby paws off my civil rights.
 
Written By: JD
URL: http://www.qando.net

 
Add Your Comment
  NOTICE: While we don't wish to censor your thoughts, we do blacklist certain terms of profanity or obscenity. This is not to muzzle you, but to ensure that the blog remains work-safe for our readers. If you wish to use profanity, simply insert asterisks (*) where the vowels usually go. Your meaning will still be clear, but our readers will be able to view the blog without worrying that content monitoring will get them in trouble when reading it.
Comments for this entry are closed.
Name:
Email:
URL:
HTML Tools:
Bold Italic Blockquote Hyperlink
Comment:
   
 
Vicious Capitalism

Divider

Buy Dale's Book!
Slackernomics by Dale Franks

Divider

Divider