Burnt Orange Report

Democrats need to start swatting down the idea that the judges making these rulings are 'activist judges'. In our history as a country, it has sometimes taken the action of the courts to force issues to be dealt with. I wonder how many people would still label 'activist judges' the ones who ruled in cases like Loving v. Virginia (interracial marriage), or Brown v. Board of Education (segregation).

I agree with you. As a gay man, I understand the importance of this ruling, but perhaps it would be better if it didn't come at such a time where the political ramifications would be so exacerbated, i.e. an election year, and considering that the frontrunner himself is from Massachusetts, it just doesn't look good. Supposing our Democratic savior, whoever he is, wins the election: will he have the balls to "promote" equal rights for gays during his first term in office? Or would he wait to see if he was re-elected...

And if there's any "activist judge" in the nation, his name is Roy Moore.

Jason,

It is activism when judges rule in accordance with their policy wishes, not according to the facts of the case. Brown v. Board was correctly decided, though incorrectly reasoned, because the constitution prohibits the U.S. government from discriminating on the basis of race.

You would scream bloody murder if judges were implementing conservative activism, prohibiting private firms from providing same-sex benefits, or ruling that the 14th ammendment protection of life makes abortion unconstitutional across the US. It is no more legitimate for you to use the judiciary to circumvent the democratic process and constitutional restraints on the power of the Federal government than it would be if we were doing it.

Sherk

Sherk's right. You guys are only happy about this because it allows you to circumvent the legislative process. If the shoe was on the other foot, you'd be outraged. That's textbook hypocrisy, and it *ain't* very attractive if you're trying to appear reasonable.

I'm glad that some of y'all even admit there are conservative activist judges. You guys need to get with the program, the offical line from conservatives is that there is no such thing as an conservative activist judge.

Byron i wouldn't be so worried about starting a fire under anti-gay activists(repugs), that fire has been a blaze for a while now. Come november what will matter most is how people feel about the economy and whether they want Dubya in the white house. Repugs will try to make gays an issue but outside the deep south that issue won't go very far. In fact they will be wasting there time by not addressing issues the public really cares about(i.e. economy, iraq).

Tek_XX,

You guys need to get with the program, the offical line from conservatives is that there is no such thing as an conservative activist judge.

Well, they're pretty rare these days. When was the last time you heard of a conservative judge mandating a certain social policy?

"Well, they're pretty rare these days. When was the last time you heard of a conservative judge mandating a certain social policy?"

Gee. That's a no-brainer. Former Alabama Chief Justice Roy Moore. If he got overruled by the ultra-conservative 11th Circuit, you know he was a nut.

In reality, the tag line of "activist judge" really means nothing - it is just a cop-out criticism of a judge's ruling without really addressing the merits of a ruling. You don't like the ruling? - just call the judge "activist."

The reality is that some issues of policy have constitutional dimensions. When they do, they become fair game for judicial review. That is what our Court system since its inception and Marbury v. Madison is all about. It is certainly not "activist" for a court to review a statute under constitutional scrutiny. Rather, the Court has a duty to examine legislation for constitutional infirmities when brought to its attention.

For example, while partisans on the extremes might disagree, the US S.Ct really did reach the "correct" decision in Lawrence (to the disdain of conservatives,) just as it did in [I cannot recall the name of the recent case](striking down part of the Violence Against Women Act giving a Federal private cause of action for rape on the grounds of lacking a grounds for Congressional authority under the Commerce Clause) or Lopez (striking down federal gun legislation [no guns near schools] as going beyond the scope of the Commerce Clause as well) - both much to the chagrin of some liberals.

The fact is that sometimes "conservative" and/or "liberal" legislation is passed, and despite the good intentions of the legislators and sometimes "good merits" of the legislation, the laws are still simply unconstitutional. (As an example of a proposed law, whatever ones views on passing legislation that would deny citizenship to persons born on US soil to non-citizens, without amending the 14th Amendment, such a law is blatantly unconstitutional). When a judge declares legislation unconstitutional, she/he is not subverting the legislative process, he is fulfilling a key role of our "checks and balances" system of separation of powers of government.

WhoMe?

Did any of us here say that judicial review was illegitimate? I don't recall seeing that posted. My point was that judicial decisions should be arrived at by applying the original intent of either the framers, or the legislators involved, when interpreting the law, and personal policy preferences don't enter into it.

Lawrence was highly illegitimate for just this reason. (For the record, while homosexual relations are wrong, I don't think they ought to be illegal, and if I were a Texas legislator I would have voted against the statute in question) Justice Kennedy pulled a new definition of "liberty" out of Cato's briefing papers, but there is no evidence that the framers, or anyone else involved in either the creation of the constitution or the ratification of the 14th ammendment inteded it to mean the libertarian "no harm" principle that Kennedy interpreted it as. I would very much like liberty to mean that when used in the constitution, but it doesn't. There is a lot that would be zapped on a "no harm" basis, including most economic regulations, but that isn't what anyone involved at the time intended. It isn't a cop out to criticize judges for abusing their power and striking down laws, or refusing to strike down laws, when they abuse their power to write their policy preferences into law, despite no constitutional basis for doing so.

Sherk

Sherk/Owen/etc,

By your argument the government should be able to pass laws outlawing marriage between Americans and Canadians, since that law wouldn't be based on race, but national origin. I also assume your belief is that we would have to explicitly amend the Constitution to say that we shouldn't discriminate based on national origin in order to really prevent laws like that.

My opinion is even though the constitution only mentions 'race', the overall intention is to make sure 'groups' of people are not unfairly discriminated against.

Also, I think we have very different ideas about what the word 'activism' means. It is obvious that the judges in this case were not practicing activism if you look at how long it took for them to render the initial decision. If they were truly activists, why did they struggle with the decision?

Ultimately it is the job of the judiciary to interpret our laws. Yes they may be unelected, but it is probably for good reason. If they had to answer to the public for every decision they made, there wouldn't be much point in having them in the first place.

activism
n : a policy of taking direct and militant action to achieve a political or social goal

WhoMe?,

Gee. That's a no-brainer. Former Alabama Chief Justice Roy Moore.

Ok, big distinctions here:

#1. He didn't enforce a 'social policy.' I don't think anyone was affected by having or not having a monument of the Ten Commandments in the courthouse. It's dishonest to compare it to abortion or gay marriage.

#2. He didn't establish any precedent, nor did he win a single court ruling.

#3. He lost.

Jason Young,

By your argument the government should be able to pass laws outlawing marriage between Americans and Canadians, since that law wouldn't be based on race, but national origin.

Race, ethnicity, and national origin are placed in the same legal category because the same essential issues are involved in each. They are all subject to strict scrutiny rather than the far looser rational basis standard. Therefore, your analogy is invalid.

My opinion is even though the constitution only mentions 'race', the overall intention is to make sure 'groups' of people are not unfairly discriminated against.

Well, your opinion is wrong. First of all, the Fourteenth Amendment does not mention race. Secondly, the intent was not to ensure that 'groups' were no discriminated against, only that individuals were guaranteed equal treatment under the law, with the clear intent of protecting the rights of newly freed slaves. It certainly wasn't intended by anyone to require gay marriage.

It is obvious that the judges in this case were not practicing activism if you look at how long it took for them to render the initial decision. If they were truly activists, why did they struggle with the decision?

Probably because they aren't one person. A collection of activists will still struggle when deciding what kind of activism to take part in. The bottom line is that their decision was legally indefensible.

activism
n : a policy of taking direct and militant action to achieve a political or social goal

I would consider usurping the power of the legislature to be a 'militant' act. But if it's semantics you want to get involved in, please find somebody else. I don't want to play the pedant, and neither should you.

I'm amazed that such gay-haters read BOR. People who think homosexuality is wrong.

What happened to the conservative mantra of not interfering in a person's private life? Of not caring what they do in their homes? It seems conservatives only want small government when it helps them; big government when it helps rid others of legal rights.

Sherk/Owen: It is simply about equality. I don't think there would be a single gay man whining about your failed "sanctity of marriage" values if we were treated equal. It is hilarious to hear a coke addict (while married and while with children) who's brother is an adulterer moan on and on about the sanctity of marriage.

So why won't republicans come out in favor of equality?

Race, ethnicity, and national origin are placed in the same legal category because the same essential issues are involved in each.

Why can you lump race, ethnicity, and national origin together when the constitution never mentions the final two? It seems to me you will lump things together when it is convenient to your beliefs, just as people on the other side of the debate would like to. You are assuming just because the last two are not mentioned in the constitution doesn't mean they aren't protected. Yet you don't afford the same courtesy to other aspects of the individual.

[As a side question : Why do we need the 15th and 19th amendments if equal protection should have prevented this discrimination in the first place?]

OK, let's go down a different path... What about religion? It obviously is not as easily lumped into the same category as race. Does that mean the constitution allows me to pass laws against interfaith marriages? What about disability?

A collection of activists will still struggle when deciding what kind of activism to take part in.

You make it sound as if it is some big conspiracy story!

The bottom line is that the equal protection clause applies to all people, regardless of any traits that person has. Therefore, you can't give special rights to heterosexuals and deny them to homosexuals.

I think the overall problem here is the question of whether sexual orientation can be changed. People who think it can be changed will obviously think it is OK to discriminate against gays. But if it can't be changed, how can you possibly say that it is okay? I guess this argument will rage on until we have definitive proof that sexual orientation is encoded in our genes somehow.

I'm amazed that such gay-haters read BOR. People who think homosexuality is wrong.

An interesting point. I've long wondered why so many neocon fundamentalists do post here.
Do they seriously think they can "convert" us?
Are they here to harass us?
Or are they just keeping an eye on us so they can report their findings to Karl Rove and Pat Robertson?

monceaux,

I'm amazed that such gay-haters read BOR. People who think homosexuality is wrong.

Those aren't the same things. One can believe homosexuality is wrong without being a 'gay-hater.' I resent any implication to the contrary.

What happened to the conservative mantra of not interfering in a person's private life? Of not caring what they do in their homes?

This was never a conservative mantra...

It seems conservatives only want small government when it helps them; big government when it helps rid others of legal rights.

Is this the first time you've realized that conservatives aren't libertarians? Of course we don't want to close off government intervention 100% of the time. In the two most prominent cases, we want the government to preserve the institution of marriage and to protect the unborn. If you don't understand why, you need to read more political philosophy and fewer polemics.

It is simply about equality. I don't think there would be a single gay man whining about your failed "sanctity of marriage" values if we were treated equal.

I don't believe in treating unequal cases equally. That goes against justice. Accordingly, ranting about 'equality' constitutes empty rhetoric; we treat different things differently all the time, and with good reason.

To take points in no particular order,

Tim Z, I can't speak for Owen or Mark, but for myself, I started reading BOR over the summer while Byron et al. were covering the redistricting. Obviously, I wanted redistricting to pass, and BOR had a lot of good coverage on the issue, even though I thought it was a wonderful idea and the rest of you hate it. As for why I post, while I believe in the battle of ideas, I don't think it is terribly likely that many of you will realize you are wrong, although I hold out hope. Mostly, I enjoy arguing politics, and since I'm one of the few Americans in my grad program it is kind of hard to talk U.S. politics with people unfamiliar with our system, so it is fun to argue with you uber-liberals who populate the BOR. Happy?

Actually, there is no constitutional basis for preventing the Federal government from outlawing "internationality marriages," although I think such a policy would be stupid. If the government wanted to ban Americans from, say, marrying Canadians, it could. There would just be no point to doing so. If the government wants to preserve the institution of marriage as it has existed for the past five millenia, it can do so as well, and there are good reasons for doing so.

Monceaux,

I am not a gay hater. I hate homosexuality and sin in general, but not homosexuals. There is a difference. You can believe someone is doing something gravely wrong and not hate them at the same time. Have you ever known any alcoholics? It might surprise you to know, but I had friends in undergrad who were gay. Look we are all sinners, and fall short of the glory of God, and aren't going to get to heaven on the basis of our own good works. Hate the sin, love the sinner is pretty basic Christian theology. You mischaracterize Owen, Mark, and myself when you argue that we hate homosexuals.

As for "...the conservative mantra of not interfering in a person's private life? Of not caring what they do in their homes?"

I think I made it pretty clear both in this thread and others that I believe that homosexual acts, while abhorrent, should remain legal. If you want to have sex with other men, and don't repent, you will answer to someone far more important than Uncle Sam. Same-sex marriage isn't about privacy, or the ability to make bad decisions about your own life. Even homosexual activists admit that the main reason they support it is not to gain legal benefits but to increase societal support for homosexuality, to make it more "okay to be gay." To further this end, they have no problem fundamentally altering the basic building block of society. I disagree with their goal, and I would like to see marriage stay intact, thank you very much.

Believing people should be able to do what they want, so long as it doesn't harm others, doesn't mean the government should recognize and approve of those actions, or that you need to support government social engineering to persuade people to accept sinful behaviour as normal. You can disagree with this position, but it doesn't contradict the basic tenets of conservative philosophy.

As for equality, homosexuals are treated equally before the law. Any man and woman who wish to get married and meet certain qualifications (namely, not being related or currently married to someone else) may do so, regardless of their sexual preferences. "Bishop" Robinson was married for many years, and had two children, before he decided to divorce his wife. Gays are equal before the law, they are treated just the same as heterosexuals. I couldn't marry a man if I so desired, and neither can any other man.

What you want is the law to treat homosexual behavior as equivalent to heterosexual behavior, not the law to treat homosexuals and heterosexuals the same. There is a difference between the two. The constitution protects individual equality before the law, not equal protection of different actions.

Sherk

Jason Young,

Why can you lump race, ethnicity, and national origin together when the constitution never mentions the final two? It seems to me you will lump things together when it is convenient to your beliefs, just as people on the other side of the debate would like to.

I wan't lumping them together. The law has done this, because it has been seen a rational implication of the the 14th Amendment. I already explained to you that this is the reason that two different standards (i.e. strict scrutiny and rational basis) exist.

This isn't just convienient for me; it's convenient to the Court. You can't just say "all groups must be treated equally," because then murderers could claim to be a protected class under the 14th Amendment and argue that the justice system is violating their rights by incarcerating them. The wealthy could claim that their rights were being violated by being taxed more than the poor. In short, it would become very absurd very quickly.

Except for a few protected categories the Court has deemed ought to be protected under the intent of the 14th Amendment, everything is subject to mere 'rational basis' analysis. All that means is that the legislature cannot be completely arbitrary; they must have some rational defense. We may not agree with that defense, or even think it is completely stupid, but that's what the ballot box is for. We are not supposed to be ruled by courts.

As a side question : Why do we need the 15th and 19th amendments if equal protection should have prevented this discrimination in the first place?

We need the 19th Amendment because gender was never intended as a protected class under the 14th Amendment, and so it was never interpreted as granting women the right to vote. We need the 15th Amendment because the 14th Amendment was fairly vague, and the Republicans wanted immediate sufferage for blacks.

I'm not a historian, but that's been my general understanding.

OK, let's go down a different path... What about religion? It obviously is not as easily lumped into the same category as race. Does that mean the constitution allows me to pass laws against interfaith marriages? What about disability?

Religion is protected by the First Amendment. Disability is protected by the Americans with Disabilities Act, but is not, to my knowledge, protected under the Constitution.

The bottom line is that the equal protection clause applies to all people, regardless of any traits that person has.

Rapists, murderers, and pedophiles should be happy about that.

I guess this argument will rage on until we have definitive proof that sexual orientation is encoded in our genes somehow.

It isn't. We already have proof of that. There are likely genetic predispositions, but then again, there are genetic predispositions for violence and anti-social behavior. That doesn't mean we consider rapists and murderers protected classes under the 14th Amendment.

Look, Jason -- the Courts are not supposed to be a catch-all for your social doctrine, whether I'd agree with it or not. We are a republic, so if you want things accomplished in government, you're supposed to elect people with similar beliefs, not claim that the Constitution already affords bizarre, new protections. The latter is a tyrannical method, the former is not.

"I hate homosexuality and sin in general, but not homosexuals. There is a difference. You can believe someone is doing something gravely wrong and not hate them at the same time. Have you ever known any alcoholics? It might surprise you to know, but I had friends in undergrad who were gay. Look we are all sinners, and fall short of the glory of God, and aren't going to get to heaven on the basis of our own good works. Hate the sin, love the sinner is pretty basic Christian theology. You mischaracterize Owen, Mark, and myself when you argue that we hate homosexuals."

Sherk, I'm not trying to be smart with the questions I'm about to ask. I'd seriously like to get your take on it.

Why do you think there's such a preoccupation with homosexuality among evangelical Protestants? Why is it regarded as such an critical issue, as opposed to other issues, particularly when you consider it pertains to maybe 5 percent of the total population?

Maybe I'm wrong, but I've never read anything that indicated no-fault divorce caused a similar uproar when it came to pass. I also don't see much of a full-scale assault on what's probably the country's greater problems: consumerism/materialism and the pursuit of constant entertainment. D. James Kennedy, James Dobson and the SBC don't seem to go to similar lengths to drive home the point that God likely doesn't want us focusing on how to get more, more, more (possessions or prestige). You brought up alcoholism. Why isn't there a huge push to enact stricter punishment for people who abuse alcohol?

I think homosexuality is viewed as one of society's greatest concerns because it's, well, gross to many heterosexuals. An average person probably doesn't spend a lot of time ranting about people who gossip, lie occasionally or covet because, well, they have some personal experience with it.

But sex with someone of their own gender seems physically repulsive, and, frankly, they'd rather not be around people who maybe do that.

There's a lot of talk thrown around about loving the sinner, but I seriously don't see much of it when it comes to gays and lesbians.

Read an article such as this one. I think you'd agree it's fairly caustic. He might believe he loves the sinner, but I'm betting he wouldn't want to be around one of us "fags." We might hit on him or something. He took the ESPN article so seriously that he referred to me and any other person with my orientation as "animals" and "perverted, self-absorbed, lusting predators." I can almost promise you that he would never reach a gay man or lesbian for Christ.

I have to admit that I think many people who are so combative regarding homosexuality are actually more concerned about creating an American society they find more palatable than they are with furthering the Kingdom of God.

If you want to talk about concern regarding something Jesus said, I get worried about the whole "camel through the eye of a needle" thing. By the world's standards, I'm rich pretty much just by being an American. It's troublesome for me much more than what Paul said about homosexuality.

Rapists, pedophiles, and murderers have all committed grave crimes against fellow human beings. To compare those groups to homosexuals is simply and utterly beyond the pale.

Religion is protected by the First Amendment.

So are you arguing that interfaith marriages are protected by the First Amendment?

I wan't lumping them together. The law has done this, because it has been seen a rational implication of the the 14th Amendment.

So what is the rational basis for denying gay marriage, Owen? Apparently MA could not convince their own court that there was a rational basis. Specifically, what interest does the government have in making sure that two men or two women cannot form a family together? The government knows it will happen anyway, so what point is there in simply not recognizing that they exist and giving them the same rights as other couples?

Let me turn the tables. Why aren't Republicans pushing for an amendment banning marriages of murderers, rapists, and pedophiles? Surely these people cause quite a bit of harm to the 'sanctity' of marriage, do not promote family values, and should not be trusted around children.

Same-sex marriage isn't about privacy, or the ability to make bad decisions about your own life. Even homosexual activists admit that the main reason they support it is not to gain legal benefits but to increase societal support for homosexuality, to make it more "okay to be gay."

I think you are pulling this one out of your ass. Please give me a reference to a reputable organization that has made this claim.

Sure, organizations are working to promote tolerance and an atmosphere where people do not have to stay in the closet. But that is a far cry from there being some campaign to make homosexuality 'cool', or an attempt to convince straight people that they can be gay. That is ludicrous.

Steve,

You've asked a serious question, and I'll give you a serious answer, with the proviso that I can't speak for all evangelical Christians, only myself (and of course, everyone who agrees with me).

Why the pre-occupation with homosexuality? Well, first, I wouldn't call it a "pre-occupation." It is a big deal right now because of the SCoMA rulings and Lawrence which has brought it to the fore, but most Evangelicals care much more about, say abortion, than homosexual issues. However, thanks to Roe, there isn't much we can do in the short term to end abortion in America. For now, we've lost that battle. The same is not true of preserving marriage in a somewhat recognizeable state, and so there is a strong movement now to do what is possible while we still can.

As for no fault divorce, I obviously wasn't around back then, but I had thought I heard that there was a rather strong effort against it, and that effort failed, weakening the state of marriage in the US from a (near) indissoluble union to a contract of convenience. Ireland recently legalized divorce, and there was a huge backlash against it. It is not that we don't care about divorce, there just isn't much we can do about it now, but it doesn't mean we should try to stop the further erosion of marriage.

As for consumerism/materialism/entertainment oriented concerns, I agree they are quite serious. Outside your own life, and the influence you have on your friends/family, however, there isn't much we can do about the decadent culture we live in (No, taxation/redistribution of wealth don't count, since the problem is the hearts that are turned towards the things of this world, not simply the consumption that reflects those desires -- Forcing people to consume less doesn't mean they are no longer consumerist). And you are wrong to suggest that Christians don't care about these problems very much. I could point to data that shows that church goers give to Charity at something like twice the rate of non-church goers, but besides that there are plenty who go on missions trips to actually help those in the third world. I didn't go, but I have at least a half dozen friends who spent several summers in Uganda helping build schools, wells, hospitals, and spread the Good News.

Does the "ick" factor exist? Yes, but so what? There are plenty of things that I find disgusting (like eating seafood, for example...) but the fundamental reason people are opposed to homosexual behavior is because it is wrong. If God didn't condemn it, it wouldn't be an issue, but he does. The reason there is such adamant opposition to "normalizing" gay behaviour now is because it is still possible to stop society from accepting it as ordinary behavior. The same is not true of, say, pre-marital sex. It is just natural to put more effort into the battles you can win.

Sherk

Owen,

Roy More was, by your definition, an "activist" jusge. You responded he was not for three reasons.

First you make a distinction between Ten Commandments and other areas, specifically abortion and gay rights, arguing that placing the Ten Commandments does not "hurt" anyone. You could not be more wrong. If you are a religious minority in this country, everytime religion is mixed with public institutions, it sends a signal that you are a second class citizen. How would you feel if the Chief Justice of your state put a monument to Allah and the Koran in your SUpreme Court Building on the basis that our Supreme Law comes from Allah, his prophet Mohammed, and the book of the Koran. The flip side is that abortion or gay rights legislation does "hurt" someone. I can see the argiment that, if you believe in life at conception, that abortion does hurt someone, the fetus. However, by no means whatsoever does allowing two men to copulate in their own home "hurt" anyone. Neither does allowing the same two men to marry. To say it does is simply to express bigotry towards homosexuals (And the I love the sinner, but hate the sin is such a tautology. The same arguments were made to justify anti-black bigotry and anti-miscegenatrion laws - they were wrong then and they are wrong now).

Second (and third really too), you argue that Roy Moore ultimately did not prevail,hence he cannot be labeled "activist." So what? You can be a bad judge (even "activist") even if you ARE ultimately overruled. In fact, if that is your definition then no TRIAL judge can ever be labled "activist" because it is the appellate judges that have the ultimate say. Especially if the "activist" trial judge is overruled - his "side" did not prevail, hence he cannot be "activist." See how quickly your argument falls apart. Tsk. Tsk. Tsk.

As an aside, for all you armchair constitutional scholars who believe that the only appropriate Constitutional hermeneutic analysis is original intent (or even textual for that matter), I have this question for you?

Do you believe that the US Air Force is constitutional? Article I, which sets forth Congressional authority, permits Congress to establish an Army and a Navy, yet mentions NOTHING about an Air Force. Our founding fathers (before the Wright Bros.) could not have foreseen an Air Force. Thus, textually and historically (i.e. original intent of the framers), there is NO basis for Congress to appropriate funds for an Air Force.

Do you STILL think the US Air Force is constitutional? If not, then why don't you write your Republican Congressman and tell him/her so. If so, then I would be interested in why you think it is, AND your hermeneutic modality as to why.

Steve,

I trust you will accept that Andrew Sullivan as a reputeable homosexual activist? He has posted numerous comments on the Daily Dish indicating that one of the chief aims of establishing same-sex marriages is to bring homosexuality into the mainstream of American society.

WhoMe?

As for the AirForce, I think it is perfectly legitimate if it is organized as a branch of the Army or the Navy (actually, given that helicopters are under the Army and the Navy has warplanes, parts of what we would normally consider the "Air Force" already are). Technically it is unconstitutional as is, but that could be easily changed without changing anything intrinsic to the nature of the current military.

Yes, Moore is a publicity hound, and I didn't support him. He wanted to be martyred, and got what he desired (probably the free media exposure to let him challenge Gov. Riley in 2006, but that is a different story). However, he could, constitutionally, display the 10 commandments, or a copy of the Koran, or a ten foot cross, or a statue of Buddha. The establishment clause doesn't prohibit that, so long as he isn't forcing anyone else to claim they adhere to those faiths.

You want a rational basis to oppose same sex marriage? How about the fact that it changes the nature and understanding of what marriage is. Check out Denmark (I think, might have been the Netherlands) which has had same sex marriages for the past five or so years. Some researchers just conducted a peer reviewed study on how homosexual unions are functioning. It came out over the summer, if you want to hunt for it, but I don't have the URL off hand. Among other things, it turns out that the average "married" homosexual male has either five or 11 (can't recall which) sexual partners each year, besides his legal partner. In most cases, both partners are pretty much cool with it, and make arrangements so they can have both have extra-"marital" relationships on the side. They have a totally different conception of monogamy and the role of sex in the marriage.

Now, there are a lot of really sleazy guys out there who do cheat on their wives, but it is almost universally accepted that that behavior is the exception, the norm is marital fidelity. When spouses do commit adultery, it is treated as a major betrayal of trust. Not so among the vast majority of "married" homosexuals in the Denmark. Creating same sex "marriages" does more than simply say that the government approves of homosexual behavior, it also alters the definition of what is acceptable/expected behavior within the institution of marriage. Rational enough?

And, before the posts start coming back, I am not accusing anyone here on the BOR of supporting such behavior, I'm just pointing out that monogamy has been the rare exception among "married" homosexuals in Denmark, far more so than among heterosexuals.

Sherk

Sherk,

Concerning Moore, the problem is that he did not merely display the Ten Commandments as part of an historical context of the origins of the American Legal System. (Which has never been held as an Establishment of Religion). He displayed them with the intent of declaring that God (HIS Christian God) is THE fundamental principle behind our legal system (i.e. our third branch of government). This is ABSOLUETLY UNCONSTITUIONAL, establishes that a particular religion holds sway over one of our branches of government, and the VERY conservative 11th Ciruit agreed. This may be hard for you to believe, because you lack the perspective of a religious minority (and I will LOL if you claim evangelicals are a religious minority - you are all Christians), but such displays make second class citizens of all religious minorities. Imagine if Chief Justice Rhenquist said that he is going to place the Five Pillars of Islam, in the original Arabic, in the rotunda of the S Ct. Building because we must accept that our legal system derives straight from Allah and the teachings of Mohammad. I suspect you would flip. (I actually expect you to say with a straight face, "but it is not derived from the Koran, yet it is derived from the Ten Commandments." - The truth be told, our legal system has MUCH more in common with Roman Law than with any religious system's canon of law - that's right, pagan.)

Concerning the US Air Force question, I am intrigued on how cavalierly you cast aside the issue. If you do think it is unconstitutional, then where is the outrage? If not outrage, where is the concern? Where is the solution? Why would you think that it can easily be fixed by incorprating within another brach of the armed forces? If original intent is your guiding principle, you cannot fold it into another branch because the framers would not have foreseen it. In sum, you cannot resolve the issue because it is impossible to do so without realizing that original intent can only get one so far.

Concerning a rational basis for gay marriage, the same types of arguments have been applied to anti-miscegenation: "Black-white marriages are doomed to fail, ergo we can prevent them." I realize it is hard to accept one's bigotry, but there is no legitimate reason to deny two women or two men the legal incidents of marriage other than one is uncomfortable with it. This, my friend, is the essence of discrimination. Government should not be in the business of picking ones spouse - that is what your parents are for :) You may of course deny them the sancitity of marriage within your particular house of worship, as is your right. However, when the State makes second class status of its citizens based on whom they love, this it cannot do.

In closing, I am unfamiliar with your Danish study concerning gay couples. I would suspect that some gay couples are not-monogamous because they lack the state affirmation of marriage. It is a "chicken & egg" quandry - are they unfaithful because they are not truly married, or are they not truly married because they are unfaithful.

First of all, comparing European values to American values is like comparing apples to oranges. Goto Europe, turn on the TV, and most Americans would be shocked at what they might see. Similarly the attitudes towards sex in Europe are far more liberal than here in the US. I am wondering what the divorce rate is among those marriages?

I think it goes against logic to deny gay marriage to all gay people based on how some percentage of them would choose to live their lives. 50% of American marriages end in divorce already, should we then conclude that Americans are not good enough for the institution of marriage? Even if that 50% was not caused by infidelity, does it really matter what the cause is if the result is a broken marriage?

There is no rational discourse for conservatives to be against equal rights -- marry who you want -- for gays. So they ramble. To be clear: I am a gay man and I do not favor gay marriage; however, I do favor civil unions, I do believe we should be allowed all of the protections as any other American.I believe in partner rights, which we have NONE of now.

Sadly, I will go to CANADA on June 22 to have my Civil Union put into place because of conservatives like the ones here who talk a great game about "the sanctity of marriage" but who fail to live such sanctity in their own lives.

I can't believe it's just liberal married men who subscribe to Playboy, who cheat, who download and jerk off to Internet porn, who go to sports bars and howl at women, who get divorced, who remarry, and who do all of the other things to destroy this sanctity. Yet there is this hollow 'sanctity of marriage' argument that holds absolutely no water that they fall back on time and time again.

Sherk, thanks for taking my questions seriously. I was drawing mostly from personal experience, since I'm a Southern Baptist who professed faith and was baptized at age 10. I was a volunteer youth director for three years after I graduated from college.

You’re right about churchgoers’ willingness to donate money — I had no trouble getting funds for projects/activities. But getting volunteers to help chaperone or spend time with the kids was a completely different story.

In my experience, I’ve seen very little personal involvement in making change happen in individuals' lives when it comes to addictions, homelessness, poverty, etc. Sure, kids go on a mission trip during spring break every year, and a group of adults might get a trip together to travel to somewhere in South America for a month. But at home? I see very little interaction with people in need.

I mentioned divorce yesterday as only an example. Every church I've ever been a part of takes divorce very lightly, whether on the Cooperative Baptist Fellowship side or the fundamentalist side of the denomination. Divorced people serve in all sorts of positions in the church without a second thought, even thought a literal interpretation of Scripture tells us that someone who divorces for any reason besides adultery is themselves committing adultery if they remarry.

It and other subjects (such as integration or women’s role in the church) lead me to believe that the fundamentalist-led SBC tends to eventually accept whatever society approves, rather than standing their ground on an issue because of what they consider the literal interpretation of Scripture.

If America as a whole begins to accept homosexuality, I hope gays and lesbians wouldn't be "blamed" if some churches that are currently against it eventually did the same. Folks like the Amish seem to do a good job of maintaining their stance, regardless of what happens in the United States' mainstream culture. Why couldn't others do the same?

I hope I don’t sound like I’m being flippant or that I think my experience mirrors everyone’s. I understand your reasoning about stopping something before it's accepted in society as OK.

I just wonder whether it's fair to all Americans to deny civil unions or marriages to gays and lesbians because of religious beliefs. Not all Americans are Christians, and not all Christians believe homosexuality is wrong. I certainly don’t want Muslims to get a foot in the door on having sharia law influencing our country.

For what it’s worth, by the way — and I'm sure I'll rile some gays and lesbians with this comment — I personally would be satisfied with civil unions. If marriage as a term is important to most heterosexuals, then I would be fine with that. I'd just like have the same benefits from my government that are afforded to straight people who choose to live their lives together.

"What you want is the law to treat homosexual behavior as equivalent to heterosexual behavior, not the law to treat homosexuals and heterosexuals the same. There is a difference between the two. The constitution protects individual equality before the law, not equal protection of different actions."

My thoughts exactly. Gay marriage is ultimately about drawing an equivalence between what has always been between a man and a woman, and what would be between two men or two women. And if such a radical redefinition is going to take place, my only point is that it MUST BE LEGISLATED, not dictated from the bench, especially the federal bench which has very little if any jurisidiction over marriage - marriage under our Constitution (along with a lot of other issues) was sensibly left to the States and People under the 10th Amendment. The 10th has to be the most neglected and belittled and ignored Amendment in the Bill of Rights, much more so than the 2nd.

Clearly the ideal of egalitarianism and what the folks on the other side here see as personal autonomy in this case trumps democracy. But they would argue that democracy includes rights of minorities, and this is true. The problem for me is that I reject their analogy between homosexuality and skin color. Even if homosexuality for the sake of argument is accepted as innate, it is still a sexual PREFERENCE about a particular behavior. No one chooses to engage in having a particular skin color, but even people with inclinations choose to engage in sex, heterosexual or homosexual. in other words, the analogy with Brown v. Board of Education is bogus on those grounds as well as the historical fact that Brown did not desegregate the schools, only action by the Executive and Legislative ultimately brought it about. In other words, if the Courts are going to shove Adam and Steve being able to get married in Massachussets and be recognized in TX down the throats of the States and Federal Congress, there is a very real threat of nullification or the Executive and Legislative acting to ignore this ruling, which in turn would only hurt the credibility of the Courts thanks to their hubris. Those in favor of gay marriage might conceivably get around these arguments by saying
a) it is cruel of the state to deny recognition of these relationships
b) homosexuality is a subcategory of gender, and since the 19th amendment, and the Civil Rights Act circumscribes discrimination on the basis of gender, the government cannot discriminate against homosexuals.

These are interesting arguments to be sure. But for the sake of the long term health of the republic, and the separation of powers, these arguments MUST be made in LEGISLATURES NOT COURTS. Take your case to the People, let Massachussets and Vermont and Connecticut go their own way, and Texas and Alabama another. That's all I ask, for federalism and a truce in the culture wars rather than the imposition of a particular worldview and set of values on the whole country by judicial fiat.

And yeah if you want to talk about Bush v. Gore fine. Just remember that all the railing against the arrogance of the judiciary in that case never seemed to reach beyond for serious thought about whether the judiciary was exceeding its powers across the board. Judicial review is not de facto legislation from the bench.

And also remember that one day you may not necessarily be able to filibuster 'right wing judicial activists' and the tables could be turned, and precedents set by leftist activists you liked could be turned against you.

Alan Keyes made a similar point when he was here, and I paraphrase, "If you don't trust Hillary Clinton with the Patriot Act, should it really be left in place?" Ditto for the SCOTUS, placing the shoe on the other foot.

I wanted to applaud the people who engaged in rational debate and discussion, and Owen as well for explaining that theological disagreement with behavior does not equal hating someone. As for the lame, straw man arguments against a conservative textualist view of the judiciary (why aren't you up in arms about the USAF) presented by WhoMe? it didn't add much to the discussion. The USAF is an outgrowth of the US Army Air Corps and was authorized by the Congress in the 1947 National Defense Act (which also created the CIA). Ignorance of history hinders rational debate.

There are other principles that guide conservatives beyond a word for word reading of the Constitution. One of those is (from the standpoint of the judiciary) a general deference to the ELECTED branches of government, based on the idea of popular sovereignty. The burden of proof is on the judiciary to show why it must strike down a law or declare a law unconstitutional, not the Legislature to get the approval of the Courts.

Finally, our English-derived Common Law system (I wonder if budding leftist attorneys have ever even read Blackstone) differs considerably from Roman-law derived systems on the Continent of Europe, particularly those in Germany and France. Someone had said that America had its origins in pagan Roman law, which was a kind of roundabout way to downplay the Judeo Christian, even I daresay Protestant with Puritan influence, values that were present at the American Founding and owe their existence to the Glorious Restoration of 1688-89 in Britain.

Nonetheless, marriage is for the states, and not the federal government, certainly not the federal judiciary, to define. This is a case of POPULAR SOVEREIGNTY vs. elite values.

Take your case to the People, let Massachussets and Vermont and Connecticut go their own way, and Texas and Alabama another.

Last I checked, that is exactly what is happening. Bush is the one who wants to tell MA, VT, etc what they can/cannot do.

TX Pundit,

Briefly, because I am pressed for time. I never said our legal system is morer akin to Continental "Roman" Law than our Common Law "English" background. The point is that our civil law system is much more akin to either than to a religious one, whether it be judeo-christian, muslim, or the Code of Hammurabi for that matter.

Second, just because marriage involves an area of traditional state regaultion, makes it no less ripe for federal constitutional review. Remember, education too is an area of state regulation and a state cannot segregate in the schools. Arbitrary discrimination in any venue becomes a subject of federal constitutional concern.

Third, the third branch of government (the courts) abaolsutely have a role in our system of separation of powers. The argument that all these issues are to be left to the politcal branches is to render the third branch meaningless, which is comnpletely contary to the American system of government, and hence UNAMERICAN. I suggest you read Polybius (as did our founding fathers at the Constituional Convention) on the triparate nature of the Roman Republic. I could not put it more eloquently then he. There is a role for judicial review, especially when rights of minorities ae involved.

Fourth, as far as the snide comment about me being ignorant of the history of the US Air Force, I am very well aware of the history of the US Air Force, and it does not resolve the constitutional dilemma posed by strictly adhering to a textual and historical analysis of judicial review. No one has yet to adequetly confront the issue and that is because to do so requires admitting that history and text are not the sole hermeneutic tools in deciphering our Constitution.

By the way, the comment on "budding leftist attorneys," I appreciate the implication that I am "budding" and therefore quite young. I wish I were - age overcomes all of us; I am no exception.

You didn't answer the musing of whether you have read Blackstone or not. You claimed that I was saying the judiciary could not rule on any issue of relevance, thereby making it irrelevant. That isn't what I said, but ok.

Again, your problem is the assumption that conservative thinks that whatever the Constitution does not explicitly mandate is not allowed, but the Constitution defines our rights generally in what the government CANNOT do to us, or must do to us in the event of a crime. The point is, we are not going to agree because our presuppositions are different. I do not regard homosexuals as a class like members of historiclly oppressed racial minorities. I lack this regard because even if sexual preference is strongly influenced by heredity or whatnot, people still choose to engage in sexual behavior whether heterosexual or homosexual whereas no one chooses to have a certain skin color or ethnicity. Religion is a choice as well (once you get past the childhood stage) but the 1st Amendment prohibits discrimination on religious matters (though it did not prevent the State governments from having established churches ala England), and the post-Civil War amendments to our Constitution bar discrimination on the basis of race and color (15th). So on all of those grounds the analogy with anti-miscegenation and racist laws is bogus.

You are simply being disingenous if you think that these desperate rearguard actions to define marriage as between a man and a woman (there's not going to be a Constitutional amendment, or any action beyond DOMA) are not motivated by the suspicion that the judiciary will strike DOMA down, so that Texas WILL HAVE TO HAVE THE SAME LAW on the matter of Adam and Steve being wed as Massachussets. In other words, 'let the states decide...wink wink nod to Sandra Day O'Connor...' You don't really think the states can decide because your maximalist intepretation of the Full Faith and Credit clause means that immediately once it's legalized in one state it must be recognized by all others. You might say, "Of course I favor the states deciding," but what you really mean is Courts deciding, not the People.

Here's an honest question - are there any conservatives willing to admit that gay marriage (or unions) are inevitable? That all this fighting is just dragging out the eventual outcome?

I do not regard homosexuals as a class like members of historiclly oppressed racial minorities. I lack this regard because even if sexual preference is strongly influenced by heredity or whatnot, people still choose to engage in sexual behavior whether heterosexual or homosexual whereas no one chooses to have a certain skin color or ethnicity.

Since when is a certain behavior a prerequisite to marriage? Last I checked, all the government did was check your sex (and maybe your blood), not ask you to promise to engage in only heterosexual behavior.

By your logic, we should be able to prevent fat people from marrying since although it may be in their genes to be fat, they ultimately choose to be fat by not dieting/exercising appropriately. Whatever happened to respect for other human beings? Just because you think homosexual sex is icky doesn't mean it is somehow lower on the totem pole than heterosexual sex.

I understand you guys think the MA court made the decision incorrectly. However, the decision is made, no discussion by us is going to change that. The question is, what is next?

I think the looming question is, do you support the FMA, and if so why? If you truly want this to be up to the states, why does the FMA go so far as to strike down what those states have decided already? Why doesn't it simply reiterate DOMA (as far as the states' rights issue goes)?

I have a feeling DOMA will get struck down, or at least part of it. If the states are in charge of determining who is married, and not the federal government, and if MA says two men are married, the federal government should not question that, and therefore allow SS benefits, etc. That is, if you truly believe this is a states' rights issue.

TX Pundit,

First, Yes - to respond to your musing, I have read Blackstone.

Second, No - the Constitution does NOT establish our government in terms of what it CANNOT do to us (to borrow your languiage). (The Bill of Rights perhaps [but the 9th Amendment really says otherwise], but not the original document). The very concept of popular sovereingty sugegsts othwrwise. No less than Ronald Reagn put it best when comparing the Soviet & American Constitutions: "In the USSR, the Constitution tells the people what rights it has - in the USA, the people tewll government what rights it has." The pointis, in American we cede political power, which emanated from us inherently, to the government in order to achieve those goals listed in the preamble. (In the same vein, conservatives often decry, "Where is the right to privacy mentioned in the Constitution? It's not there, hence no right." The repsonse is that it does not have to be mentioned - read the Ninth Amendment and Reagan's quote above.) For an example of the Constitution defining government roles in positive terms, and not what it CANNOT do to us (your words) read Article I, Section 8, Article II, Section 2, Article III, Section 2. Finally the 9th Amendment is crucial to the understanding of popular sovereignty.

Third, you need to avoid stereotypes and lumping all your adverseries togther. I never said marriage is a state issue only for States to decide. Whether it was Loving v. Virginia, or the instant debate, I think there is a definite federal constituional issue involved and the issue is apporpriate for review in federal courts.

Fourth, the 5th and 14th Amendments have NEVER been so narrowly interpreted as to applying solely to race. (Not to be disrespectful, but this one really shows your ignorance of constitutional law). True, gays have never been declared a "suspect class," to use 14th Amendment jurisprudence legalese, but the amendment has broad implications beyond race, including to "activities that we choose to engane in" as opposed to "inherent status classifications." (E.g. engaging in political speech is a chosen activity and States cannot use laws to treat different political speech differently.)

In sum, please familiarize yourself with the most elementary principles of constitutional law before purporting to be an expert on the subject.

Everyone focuses on the aspect of DOMA that says one state can elect not to recognize a marriage from another state, and the Full Faith & Credit clause argument to counter it. Little attention has been paid to the other aspect of the law: that the Federal government will not recognize such marriages. (Full Faith & Credit clause only applies to the States) This aspect has probably just as much impact (SS benefits primarily, as well as gift & inheritence tax issues for those with larger estates), yet has received less attention.

There certainly is a federalism argument that Congress has no ability under Article I, Section 8 to define what is or is not a marriage. (Are all you "State's Rightists" listening) Interestingly, Federal Courts have developed a common law doctrine of abstaining from hearing divorces, even when there is federal jurisdiction (i.e. spouses are residents of different states [at time of filing divorce] and the marital estate is valued at more than $75k.) Thus, Article III, Section 2 confers federal jurisdiction, Title 28 USC §1332 confers federal juridiction, and the Courts punt anyway.

It seems a little hypocritical if the Courts establish a doctrine to get the Federal government out of the determining rights & obligations of married couples upon dissolution of the marriage, yet permit the injection of the Federal government into the rights & obligations of married couples at the threshhold of the marriage.

(In reality, the reason why the Courts have abstained from such divorces is NOT to preserve the authority of States to regulate these areas, it is because Federal Judges think that "their shit don't stink" and are too damn superior to be "burdended" with divorce cases - at least it would expose this hypocrisy as well)