Same Sex Marriage Reached A Crescendo In The Courts

Posted by Consigliere on Friday, July 07, 2006 at 10:53 AM. Read 5474 times. Tags:
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In the heady times following the Massuchusettes ruling allowing same-sex marriage, same-sex marriage activists thought the corner had been turned for their cause.  They were very much mistaken though.  The latest blow to their cause came this week when the New York courts ruled that there is not a fundamental right to same-sex marriage.  This is especially troubling for same-sex marriage advocates, because New York is a deep-blue state and the courts there are seen as “progressive.”

The New York case results from suit brought by 44 couples denied marriage licenses in various municipalities in New York.  The plaintiffs brought suit claiming that the failure to issue a marriage license to them to marry another of the same gender violated the due process clause and equal protection clause of the New York Constitution.  The clauses have been given more expansive readings than similar provisions in the U.S. Consitution, which is part of the reason suit was brought.  The New York High Court, joining Arizona, New Jersey and Indiana, rejected the claim.

At the time of this writing, twenty states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex.  Most of the constitutional amendments have been in reaction to the Massachusettes decision.  This comports with public opinion polls reflecting roughly 60-40 against recognition of same-sex marriages.

It appears that the courts will let this play out in the state legislatures from coast to coast.  I agree with the courts.  If one looks at traditional due process rights, the right to marry is fundamental.  The right to same-sex marriage is not, as even those legal scholars in favor of gay marriage will admit .  If the activists want to obtain same-sex marriage rights for same-sex couples then they must win over the public, rather than try to force feed them. 

There is only one other state in the country that might allow same-sex marriage.  The battle in the courts is largely over.  The activists jumped the gun.  As a result of running to the courts instead of winning over the public, same-sex advocates face nearly insurmountable hurdles to achieve their desired goals.  This result is a direct outccome of a belief that it is an “us against them fight”  mentality.  So much for we will break the door down tactics.

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KPatrickGlover United States Posted on 11/28/2006 at 07:50 AM

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By the way, John, I’ve never been able to figure out your schedule, you seem to be around whenever I’m online, no matter how late or early. What bloody time is it down there?

It’s about ten of eight in the AM as I write this.

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Les United States Posted on 11/28/2006 at 08:43 AM

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Consi writes…

And before I stopped smoking weed and tripping on acid, my politics were much like LJ’s, but I changed.  That’s what happens when one gets clean, they get sanity in their world views.

Then perhaps you could explain me as I’ve never done an illegal drug and my views are often in opposition to yours. Of the two of us I consider myself the more sane individual, but then that kinda goes without saying.

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LuckyJohn19 Australia Posted on 11/28/2006 at 08:56 AM

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What bloody time is it down there? It’s about ten of eight in the AM as I write this.

Ha-ha - I just got up for a cigarette - reading in bed but no smoking; my law.
As I sat down at my desk I said to myself: Self, now just sit and read and smoke; no SEB.
So I switched SEB on. I’m a weak bastard. LOL
It’s 12.30am here - Wednesday morning. Seems you landed just after I switched off at about midnight.
I can never work out the times either.
Looks like there’s 16 hours between us. I’m on the Oz East coast - Sydney Summer Time (ie daylight saving time) - not Brisbane time. They don’t do Daylight saving up there; it fades the curtains.
I usually get up between 7 & 9 am and play here off and on all day/nite unless I’m doing something else - with my mate ‘working’, at the club drinking or just cruising.
I’ve had a coupla smokes. I’ll go back to bed now.
Good night, mate. Have a great Tuesday. Nothing happened. wink

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I’ve discovered that it all boils down to brain wiring: your brain is wired to worship magic or it isn’t, either it’s wired to utilize logic or it isn’t, either it’s analytical of myths or it isn’t.

KPatrickGlover United States Posted on 11/28/2006 at 09:13 AM

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Tuesday’s going to suck here. I’ve got a regional manager coming in to see the store today, with all the stress that entails. Blah.

On a lighter note, I’ve always had a fascination with time zones. One of these days, I’m going to drive to one of the dividing lines here in the US and just step back and forth between the two zones.

It’s 4 O’clock. Now it’s 5 O’clock. 4 again. 5 again.

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Les United States Posted on 11/28/2006 at 09:24 AM

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I’ve never considered the idea that some people might find SEB hard to resist. I wonder how long it’ll be before someone starts up a 12-step program for it?

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If all the Christians who have called other Christians “not really a Christian” were to vanish, there’d be no Christians left.
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itdontmatter United States Posted on 11/28/2006 at 09:43 AM

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And before I stopped smoking weed and tripping on acid, my politics were much like LJ’s, but I changed.  That’s what happens when one gets clean, they get sanity in their world views.

I haven’t smoked weed or dropped acid for decades, I haven’t smoked cigarettes or done any drugs for over 5 years, and I very seldom drink alcohol.  The only ‘drug’ that I am addicted to is caffeine.

Through all of that, I never turned into a gay bashing conservative.  I have always been a gun toter, atheist, fiscal conservative, social liberal, and believed in small government.  I don’t see a correlation between chemical usage and being a conservative or a liberal. 

Look at how many gay bashing republicans have publicly admitted to buying drugs or have gone into rehab for alcohol and drug abuse.  Rush Limbaugh immediately comes to mind as a poster child for Republican drug addicts.  Most recently, Ted Haggard has admitted to buying crystal meth and is being investigated for drug use.

Ulfrekr United States Posted on 11/28/2006 at 09:51 AM

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I mostly read SEB at work, and it is often a compulsion. It would be interesting to know how much productivity is lost to the site overall.

Webs United States Posted on 11/28/2006 at 10:54 AM

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I’ve never considered the idea that some people might find SEB hard to resist. I wonder how long it’ll be before someone starts up a 12-step program for it?

Between SEB and DOF I get all the addiction feeding I need.

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Sadie Jane United States Posted on 11/28/2006 at 11:16 AM

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I’m fairly new at the whole blog/Internet message board membership thing, so I tend to get hooked whenever I join one. Rarely do I log on to a computer without checking out what’s going on here. Perhaps this compulsion will fade with time. We’ll see.

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Consigliere United States Posted on 11/28/2006 at 11:31 AM

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Then perhaps you could explain me as I’ve never done an illegal drug and my views are often in opposition to yours.

The answer is obvious of course, the starting points are different.  For some like yourself, well, Black Flag and the Dead Kennedys did more of a a permanent number on you than they did on me.  Sometimes life gives you lemonade.  Bad break.

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To die one’s self is a thing that must be easy, & light of consequence; but to lose a part of one’s self—well, we know how deep that pang goes, we who have suffered that disaster, received that wound which cannot heal.
Mark Twain- Letter to Will Bowen, 11/4/1888

Les United States Posted on 11/28/2006 at 11:36 AM

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Try again, I’m not a fan of Black Flag or the Dead Kennedys and make a point of not listening to their music. Namely because I don’t care for it.

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If all the Christians who have called other Christians “not really a Christian” were to vanish, there’d be no Christians left.
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elwedriddsche United States Posted on 11/28/2006 at 12:53 PM

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No clue about Black Flad or Dead Kennedys. Give me Qntal everytime.

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Patness Canada Posted on 11/28/2006 at 01:16 PM

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Experimented lightly with drugs over the last few years. Picked up a life-insurance policy. Now just routine caffeine intake and the odd 1 or 2 drinks a year. Otherwise I’m dry.

I came from a very small community (Michael Moore once referred to a population of 2000 as tiny - I guess I’m from half of tiny). Pretty much everyone knew everyone; it was a good place to raise kids. Problem is, like a lot of these communities, they also get xenophobic and backwards. Most of the people who still live there get all frightened at the thought of marijuana, much less crime, violence, and even progressive politics. They’re nice people, sure; they’re just not people I would go to for advice on anything for any reason. I think they’ve definitely helped taint my view of true conservative politics. I’m no fan of idealism in general though, and I’ll gladly shoot down anyone that gets it in their head that they’ll do the “right” thing.

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I acquire no understanding of myself except as I take account of objects, of the surroundings. I do not think unless I think of things — and there I find myself. - Bruce Lee

LuckyJohn19 Australia Posted on 11/28/2006 at 07:30 PM

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Patness - interesting map - coupla lines and an arrow.  LOL
I thought I was gonna get the lowdown on Canadian quaintness.

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I’ve discovered that it all boils down to brain wiring: your brain is wired to worship magic or it isn’t, either it’s wired to utilize logic or it isn’t, either it’s analytical of myths or it isn’t.

Patness Canada Posted on 11/28/2006 at 09:13 PM

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I’ve found a better map of the town. Still not as good as the picture of the town I’ve got from helicopter view, but if I told you I can jog around the town in a half-hour (when I’m angry enough and it’s not bitter cold as it is now:)), you’d get a damn good idea.

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The Kidney Punch Of Legendary Peace

I acquire no understanding of myself except as I take account of objects, of the surroundings. I do not think unless I think of things — and there I find myself. - Bruce Lee

Ulfrekr United States Posted on 11/30/2006 at 10:20 AM

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The only time I tripped on acid, I spent about six hours running around the school rugby pitch throwing line flags and claiming I was Aeneas. I’m not sure how that might have influenced my politics either way.

However, my youthful enjoyment of the occasional toke did influence my thoughts regarding US drug policy, so one could say weed was my gateway drug to libertarianism. I’d like the government out of my brain as much as I want it out of my relationships- in either case, its justifications for being there are tenuous at best.

LuckyJohn19 Australia Posted on 11/30/2006 at 09:02 PM

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Patness, thanks for the map of your town ... all those street - Wow - I’m not gonna go with a Four Yorshiremen act but, it’s a bloody city compared to the little place (pop 2500 in the 50s but spread out over a larger area) I grew up in; five alcohol outlets with three pubs (Top, Middle & Bottom), an RSL and a Golf Club ... and five churches - I went into the catholic one once - even at 15 I couldn’t believe the quaint rituals and ceremonies people got sucked into - jeez I felt superior.  wink

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I’ve discovered that it all boils down to brain wiring: your brain is wired to worship magic or it isn’t, either it’s wired to utilize logic or it isn’t, either it’s analytical of myths or it isn’t.

Consigliere United States Posted on 12/03/2006 at 05:13 PM

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An update:

There is another case working its way through the court system.  This one is in Maryland.  It is currently before the Court of Appeals and oral argument will be had next week.

The State’s brief can be found here.

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To die one’s self is a thing that must be easy, & light of consequence; but to lose a part of one’s self—well, we know how deep that pang goes, we who have suffered that disaster, received that wound which cannot heal.
Mark Twain- Letter to Will Bowen, 11/4/1888

LuckyJohn19 Australia Posted on 12/04/2006 at 12:53 AM

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Interesting brief ... not.
It’s just more religiously based law-manipulation by frightened little bigoted fundies.  wink

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I’ve discovered that it all boils down to brain wiring: your brain is wired to worship magic or it isn’t, either it’s wired to utilize logic or it isn’t, either it’s analytical of myths or it isn’t.

Ulfrekr United States Posted on 12/04/2006 at 10:36 AM

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The brief makes the same tired circular argument that there’s no right to same-sex marriage because there’s no tradition of same-sex marriage, bypassing the obvious fact that current law prevents such a tradition from coming into existence in the first place. I wonder how long committed same-sex relationships will have to exist before they are recognized as constituting a de facto marriage tradition- 6000 years is apparently not long enough. Still, I guess it’s only fair that the centuries-long tradition of marginalizing gay people should trump this new upstart trend of recogniznig human dignity. When can we have our slaves back?

Consigliere United States Posted on 12/04/2006 at 01:36 PM

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The brief makes the same tired circular argument that there’s no right to same-sex marriage because there’s no tradition of same-sex marriage,

That misconstrues the argument.  The argument has three salient points to it: 1) Alleged gender discrimination is illsuory because there is no gender classification; 2) There is no fundamental right to same-sex marriages enshrined in the Consitution; and 3) All the rights and benefits requested by the Petitioners derive from federal law and changing the state law doesn’t do anything to modify that law.

That is not circular Ufreker.  It is based on the judicial philosophy best described as an originalist philosophy.  It in no way precludes same-sex marriage.  It does require that advocates of same-sex marriage go through the legislature and pass legislation, which is how the country was designed to operate. Nowhere did the founders imagine that the court system would serve as an unchecked, unelected, inventor of new and unheard of rights.  That is what the amendment process to the Constitution was designed to address.

That is why those advocates are so bitter.  The attempt to do an end run around the legislatures has failed miserably.  The route taken was the wrong route.  Blaming the courts for doing what courts are supposed to do is completely misplaced Ufreker. 

As to your reference on slaves, have you forgotten, or just not read the Amendments to the Constitution?  New rights were created for the former slaves.  The courts then enforced the rights.  There are no amendments addressing same-sex marriage.  That is the missing step, the big difference, and that is why same-sex marriage has suffered so many set backs in court.

Do you not see this Ufreker?

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To die one’s self is a thing that must be easy, & light of consequence; but to lose a part of one’s self—well, we know how deep that pang goes, we who have suffered that disaster, received that wound which cannot heal.
Mark Twain- Letter to Will Bowen, 11/4/1888

elwedriddsche United States Posted on 12/04/2006 at 03:32 PM

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New rights were created for the former slaves.

You probably meant to say: “New legal rights were created for the former slaves.”

I must have said before that there’s a difference between something being legal and something being right.

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Religion is answers that must never be questioned.
Politics is answers that lobbyists pay for.

Ulfrekr United States Posted on 12/04/2006 at 06:21 PM

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Consi-

I was not referring to the brief in toto, although I see why it appeared that I was. Throughout the brief, in addition to the direct legal arguments, there are several arguments from tradition. It was these arguments to which I was referring. I do indeed think it is circular reasoning to claim that there is no right to gay marriage because there is no tradition to gay marriage because there is no right to gay marriage. To put the argument another way- the ability to start a tradition of gay marriage requires that there be a tradition of gay marriage.

I have agreed with you before that same-sex marriage advocates did not utilize the best strategy. That said, it took a civil war to provide the legal framework for ending slavery, and that was an affront to human rights on a far greater scale than gay rights advocates in the US have ever had to contend with. I don’t think it’s too surprising that these advocates weren’t very optimistic about relying on the good will of the general populace.

And I second elwed’s point about legal rights versus inherent rights. Black people had the same human rights before the 13th amendment that they do now- it just took the amendment for the US government to decide to recognize those rights, and to grant them the privileges of other US citizens. Similarly, gay rights advocates think that gay people are being denied a fundamental right to protect their relationships as well as everyone else- no one’s too picky about how that right gets recognized as long as it eventually does.

Another point- many of the landmark events in the history of gay rights in this country have been the result of court cases, rather than legislative action. For example, it took a Supreme Court case (73-161) to determine that the Mattachine Society Review, the first gay-rights publication in the US, was not implicitly obscene. Without this decision, it would have been difficult for much of a gay rights movement to even get off the ground. Similarly, Lawrence v. Texas invalidated anti-sodomy laws in one fell swoop, something that probably never would have happened had anyone been asked to put that item on their voting record. While it’s true that there have been many setbacks, from a purely legal standpoint there has been little lost for each gain.

One thing people tend to forget when it comes to this issue is that we’re talking about people’s lives. Efficacy AND expediency are both worthwhile considerations. It’s a pretty safe bet that we’ll eventually have marriage equality in the US. But it’s going to take a long time to get the votes necessary. I agree that that’s objectively best way to do it, but let’s be honest, this isn’t exactly an objectively ideal situation either. It’s hard not to want to speed social trends along, even if it’s not the most democratic way or could backfire. It was probably cold comfort to any American woman who died on August 19, 1920 that a sufficient number of men had just decided to grant her the right to vote. I don’t want marriage equality through judicial fiat, but I’d also like to take advantage of it during my lifetime.

Finally:

Consi: “That is why those advocates are so bitter…”

Is there any way to complain about that cliche without sounding bitter? It’s such an effective meme, and one used almost exclusively by the right. When opponents of any conservative agenda face a setback, they’re never described as “disappointed” or “upset” or even “defeated”. No, they’re “bitter”, a term which implies cynicism, resentment, and anger for it’s own sake. In this case, it’s used to imply that it’s not worth considering why a gay couple might want marriage rights or be unhappy about not getting them- they’re just bitter that their little plan didn’t work out. The constant repetition of this descriptor is, well…disappointing.

Sadie Jane United States Posted on 12/04/2006 at 06:39 PM

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It was these arguments to which I was referring. I do indeed think it is circular reasoning to claim that there is no right to gay marriage because there is no tradition to gay marriage because there is no right to gay marriage.

The line of reasoning that you’re referring to reminds me quite a bit of Don’s “argument” about why gay marraige is illegal—because it’s against the law.

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LuckyJohn19 Australia Posted on 12/04/2006 at 07:14 PM

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Ulfrekr: Is there any way to complain about that cliche without sounding bitter? It’s such an effective meme, and one used almost exclusively by the right. When opponents of any conservative agenda face a setback, they’re never described as “disappointed” or “upset” or even “defeated”. No, they’re “bitter”, a term which implies cynicism, resentment, and anger for it’s own sake. In this case, it’s used to imply that it’s not worth considering why a gay couple might want marriage rights or be unhappy about not getting them- they’re just bitter that their little plan didn’t work out. The constant repetition of this descriptor is, well…disappointing.

Good call.

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I’ve discovered that it all boils down to brain wiring: your brain is wired to worship magic or it isn’t, either it’s wired to utilize logic or it isn’t, either it’s analytical of myths or it isn’t.

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