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February 04, 2005

Old News

A New York City judge says today New York has to let same-sex couples marry. Big news? Apparently not: It's only the third story on the New York Times Web site, and it's not even on CNN.com's front page, nor the MSNBC.com front page. Washington Post? Nah. LA Times? Zip. NYPost should have something, right? Guess again. The NY Daily News has it as the top story, though. That's one out of three of the city's big papers. Newsday.com has it below the "fold" on the Web page (i.e., you have to scroll down).

What does it mean? Dunno. But I suspect it means that it's no longer big news to anyone that same sex couples want to be afforded the same rights as everyone else. And perhaps that means that it's not too far off that they will.

In the meantime, the judge's ruling will almost certainly be appealed to the state's high court; let's see where it goes from there. I imagine New York City's wedding planners are already salivating.

Posted by john at February 4, 2005 11:10 PM

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Comments

Brandon | February 4, 2005 11:49 PM

I think that the burning question on everyone's mind is:

What does same sex marriage have to do with OMW?

Chris Byrne | February 5, 2005 12:55 AM

Actually I'd guess the reason it's not big news is because its a) not a surprise, and b) almsot certain to be reversed on appeal because of pre-emption at the state level.

Judges really shouldn't be making these decisions. Properly it's the job of the legislature to say yea or nay (and thus the people, to whom judges are thankfully not generally accountable to).

This kind of behavior is what libertarians and conservatives are complaining about when we talk about activist judges BTW. It may be the right thing to do, but it's the wrong way to do it. Tough cases make bad precedents, which actually hinders the passage of good laws, and can make bad laws (like the federal marriage ammendment) more likely.

Case in point, Roe v. wade. Everyone says it's the law of the land, but in fact it isn't. It's a precedent, which CAN have the force of law, but a precedent is nothing more than a tradition. There is nothing written into federal law directly saying that abortion is legal, and Roe v. Wade could be overturned at any time, for any reason, with no vote up or down.

In fact, any jurisdiction could in theory jsut decide to ignore Roe v. Wade entirely, and the courts wouldn't technically be obligated to follow it. Yes it would end up back in the supreme court again, but who knows how they would decide this time?

This is bad for both sides in the debate, because the force of law is effecitvely predicated on the whims of 9 people, rather than the will of 300 million.

I fully support total equality between gay and straight; That means nothing more and nothing less than the same rights, priviliges, and responsibilites of straight folks. Laws however are not meant to be written, or altered, by judges. Struck down, sure, but not re-written. The people, through the legislatures, make laws, not judges.

Of course I also think that the government shouldnt be involved in marriage, and any legal implications of a marriage should be handled by a civil contract, but that's another story entirely.

Brian Greenberg | February 5, 2005 02:14 AM

I'm certainly no lawyer, but it would seem to me that declaring the law unconstitutional is what the judge is there for. Ordering the city to actively disobey the law (i.e, telling them to issue same-sex marriage licenses) seems like the equivalent of writing a *new* law to take the old one's place.

The downside now, of course, is if the high courts agree with me and reverse her ruling, the headlines will read "New York comes out against gay marriage," which will be a twisting of the story...

mythago | February 5, 2005 11:32 AM

I am a lawyer, and yes, if a law is unconstitutional, it's a judge's job to say so. Chris apparently is unaware that completely striking down a law is considered a 'last resort'; judges are supposed to do the least they can to make the law conform to the state and federal Constitutions. That's more respectful of the will of the people, isn't it?

So if a marriage law is in violation of a state's Constitution, a judge can throw the whole thing out--meaning New York would have no mariage law at all--or just excise those parts (the gender requirement) that make the law unconstitutional. The latter choice is neither activist nor radical.

Only the Constitution is "the law of the land," FWIW. "Precedent" is what judges look to in deciding future cases: what did we do before? A Supreme Court ruling is a binding interpretation of the law; it can be gotten around, say through amending the Constitution.

There is nothing activist about recognizing that a law violates the Constitution. I dunno about libertarians, but conservatives of late tend to use "activist" as a synonym for "any judge who issues a decision I don't like." I have yet to hear a coherent criticism of the *legal* reasoning of the 'Hawaii marriage case,' Baehr v. Lewin, and I am still baffled that state's-rights supporters want Washington to intervene in states' marriage laws.

Nicole J. LeBoeuf-Little | February 5, 2005 12:29 PM

"Judges really shouldn't be making these decisions. Properly it's the job of the legislature to say yea or nay (and thus the people, to whom judges are thankfully not generally accountable to)."

This assumes that "the people" will eventually come around and vote to allow an oppressed minority the rights the majority has vigorously denied them up until now. Like *that's* ever going to happen.

Evaluating a law in light of the Constitution is the court's job. That's why we have courts. And the judges remain unbeholden to the people to keep them free from having to pander to the people's unconstitutional prejudices. And it shouldn't take a genius to see that Constitutional rights ought *never* to be left at the mercy of majority vote, or to legislators whose relections depend on a majority vote.

What's so hard to understand about that?

RooK | February 5, 2005 04:17 PM

The idea of deciding issues pertaining to personal rights and freedoms by way of a popularity contest mechanism is abhorrent to me.

Andrew Wade | February 5, 2005 05:57 PM

RooK wrote:
"The idea of deciding issues pertaining to personal rights and freedoms by way of a popularity contest mechanism is abhorrent to me."
I'm not enamoured of Judges deciding these issues instead. Judges have historically *slightly* lead the public when it comes to matters of liberty, but I'm not confident that that will continue to be the case. And liberty isn't always a good thing: I suspect we all agree that we should not have the freedom of looking at pictures of kids being raped.

Chris Byrne wrote:
"Laws however are not meant to be written, or altered, by judges."
I dunno by "meant", but the English tradition of judges making law extends to before the colonization of North America. (Although the King's law, and later legislative law did gain primacy over the "common law"). I'm not really familiar with the history of law, or of "judicial activism", whatever that is, but I doubt that "judicial activism" is anything new in the United States.

Chris Byrne | February 5, 2005 06:00 PM

I am very well aware that it is the job of courts to decide the constitutionality of a law, or at least it is the job of appeals courts at any rate.

Heres the thing, if a law is constitutional, but morally wrong, and the people approve of it, what do you do?

That's what I'm talking about when I say activist judges.

There are some who say that the people are stupid (to which I would have a hard time disagreeing) and that their approval is unnecessary because they are wrong.

In this way lies fascism folks. Just because it's fascism in the direction you like, doesn't make it any less wrong.

Now if something is unconstitutional it's an entirely different story. In that case then not only is a judge correct in striking it down, but as officers of the law, and of the court (depending on the state) take an oath to defend the constitution, then no official should morally, ethically, or legally, enforce that law.

This is the peril of living in a democracy. Sometimes the people will do that which is wrong, or that which is stupid. So long as their actions are constitutional, there is no proper recoiurse but to repeal the law, or amend the constitution.

Just because you dont have the votes to do that doesnt mean it's right to get judges to do it for you.

Ted | February 5, 2005 06:39 PM

Chris, I believe, and I think the judges making this decision believe, that the current marriage laws are unconstitutional, and therefore, they are right in striking it down. Same with Roe v. Wade. Reasonable people can disagree on this point, but these judges are not, I believe, saying "I believe the law is immoral so who cares what the Constitution says."

John Scalzi | February 5, 2005 06:50 PM

"Just because you don't have the votes to do that doesn't mean it's right to get judges to do it for you."

Unless the law is unconstitutional, in which case it is.

I have to go with the idea here that an "activist judge" these days is a judge who rules in a way a certain set of conservatives don't like -- it's a nonsense phrase signifying nothing of any importance. Conservatives don't complain when judges throw out laws they don't like, although doing so is no less "activist" in its mechanics than when they toss ones they do like. And as I've said before, probably the most egregiously overreaching "activist judge" action in the last decade was the one that awarded the White House to George Bush; yet I have yet to hear a single conservative seriously complain about that.

So, here's a rule I'd like to impose: When, in fact, a judge is doing his or her job of interpreting the law and the constitutionality thereof -- i.e., their job as defined by the appropriate national or state Constitution -- the next person who calls that judge an "activist judge" is going to get beaten with a crowbar.

Andrew Wade | February 5, 2005 06:59 PM

Chris Byrne wrote:
"Heres the thing, if a law is constitutional, but morally wrong, and the people approve of it, what do you do?

That's what I'm talking about when I say activist judges."
Ah, ok. If it's common law, the court is free to change it. But if it's a law passed by a legislature, and it's constitutional, then yes, I agree that the courts should not rewrite such a law. Problem is is that what is "constitutional" may not be all that appearent.

Chris Byrne wrote:
"There are some who say that the people are stupid (to which I would have a hard time disagreeing) and that their approval is unnecessary because they are wrong."
That wouldn't be me. Yes, the people on the whole aren't particularly wise, but a far bigger problem in my mind is an anti-intellectual culture in the United States (and to a lesser extent) in Canada. And that is very fixable, as is the poor state of education. And even as-is, I think democracy leads to better governments than governments of elites. (not fascism BTW, which was anti-intellectual, and not big on courts).

But I don't hold that principle absolute: If a society happens to go genocidal, stopping or mitigating the killing justifies breaking just about any principle. But that's a rather extreme case.

Kevin Q | February 5, 2005 08:18 PM

The job of the legislature is to enact the will of the majority.

The job of the judiciary is to protect the rights of the minority.

Sometimes the judges will make decisions which are unpopular with the majority of voters. If a law is struck down, then the legislature may go back and attempt to rewrite the law, such that it fits under our federal or state constitution. Sometimes, they rewrite the constitution. That is their job, and that's why we elect them.

But that's also why we don't elect federal judges. The Founding Fathers wrote our Constitution that way: a federal judge may only be removed by impeachment, and the salary of a federal judge may never be decreased. This is specifically to insulate them from the whims of the majority, so that they can make their decisions based on what is right, rather than on what is popular.

K

Matt McIrvin | February 5, 2005 11:15 PM

"but a far bigger problem in my mind is an anti-intellectual culture in the United States (and to a lesser extent) in Canada. And that is very fixable,"

How? I've been trying to figure this one out for thirty years.

Chris Byrne | February 5, 2005 11:32 PM

Matt,

Standards, and accountability, not just in schools, but in life.

Chris Byrne | February 5, 2005 11:37 PM

Kevin, I disagree in part with your statement:

The primary job of the judiciary is to interpret the law. It should only be in extraordinary circumstances that judges should be called on to protect the rights of the minority.

Of course humans being what they are, what SHOULD be frequently is not what IS.

Chris Byrne | February 5, 2005 11:43 PM

Ted, I agree that FEDERAL laws that restrict marriage in any form ARE unconstitutional, because the constitution does not grant the government the power to regulate marriage.

Unfortunately in many (perhaps most) states, this is not the case. They do in fact explicitly have the right to regulate marriage, and in most cases the state constitutiosn are either so vague as to not preclude the restriction, or already explictily preclude gay marriage.

As the federal constitution doesnt extend any explicit protetcion or proclusion of gay marriage, there is little pre-emption argument. Some have tried to say that equal protection demands it, but the courts have been unevenly sympathetic to such arguments.

This is why the federal marriage amnedment is an appropriate solution if you believe gay marriage should be outlawed (I certainly don't). It is also why so many conservatives have a problem with the amendment, because it extends federal authority into an area that it has never existed before.

Of course that has never stopped the government in the past.

I swear, every time I hear someone say "there oughta be a law" I just want to smack them.

mythago | February 6, 2005 02:43 AM

Please remember that legally, the problem is not 'gay marriage.' The issue is that the marriage laws draw a distinction based on gender. The New York judge recognized this, and found the gender distinction to be unconstitutional.

There is nothing activist about that.

Brian Greenberg | February 6, 2005 03:03 AM

John writes:
"I have to go with the idea here that an "activist judge" these days is a judge who rules in a way a certain set of conservatives don't like -- it's a nonsense phrase signifying nothing of any importance. "

Sorry, can't let you off the hook that easy. Statements like these are too absolute - even if conservatives overuse the phrase, it doesn't mean there *AREN'T* activist judges out there, and to suggest that the term simply refers to conservative whims gives the real activist judges too much air cover.

Still more proof that generalizations are never as good as case-by-case analysis (no pun intended).

Mythago wrote:
"So if a marriage law is in violation of a state's Constitution, a judge can throw the whole thing out--meaning New York would have no mariage law at all--or just excise those parts (the gender requirement) that make the law unconstitutional. The latter choice is neither activist nor radical."

This was the point of my earlier post, which everyone seemed to skip right past (sniff...)

If the NY court declared the marriage law unconstitutional, leaving NY without a marriage law (i.e., unable to issue marriage licenses until the legislature did something about it), then I think the legislature would have responded with a change either to the law or the constitution or both. Apparently, what the judge did was write a *new* law, or at least suggest that if the law is unconstitutional then the opposite of the law must become the law, and the state must begin issuing same-sex marriage licenses right away.

THAT is what feels wrong to me here...

Kevin Q | February 6, 2005 07:16 AM

Chris said:
The primary job of the judiciary is to interpret the law. It should only be in extraordinary circumstances that judges should be called on to protect the rights of the minority.

Chris, I agree 100% with that statement. And I consider the denial of equal rights to be an 'extraordinary circumstance.'

K

Brian | February 6, 2005 10:15 AM

A question (or three, or four :-P), for pontification: What is a 'right'? How does a 'right' compare to a 'privilege'? How do we tell the difference, and where do constitutional protections lie regarding each?

Personally (and I know that there are many who disagree with me), I am of the position that marriage is not in fact a fundamental *right* that should be granted to every citizen, at least in terms of civil law. I believe that it's an institution (in general terms I think of it as a societal privilege) heretofore defined solely in terms of heterosexual unions. Thus, arguments that denying marriage to all couples regardless of sexual orientation is a violation of fundamental rights strike me as off-center.

Seems to me that this is where all of the tension about amendments comes up. The disagreement on this issue is not just about whether men should be allowed to marry men, it encompasses whether or not marriage is a fundamental right of all citizens. To my understanding, rights are defined constitutionally; thus, definition of the status of marriage as a right should be defined there, and as was mentioned above, individual states should be able to allow or prohibit homosexual marriage in their jurisdictions as they choose (legislatively).

The only reason I see any need for the FMA is if lawsuits succeed in challenging the constitutionality of the state-level marriage amendments that have been enacted in many states. However, I don't think FMA should say, "one man, one woman," I think it should say, "Marriage is in fact not a constitutionally guaranteed right, it is a civil institution managed at the state level, and each state is free to define it however it chooses." Cut off the appeal to the US Constitution, and it'll help somewhat. Obviously there will still be issues, like the Vermont/Virginia same-sex marriage child custody case I read about a couple weeks ago, but hey... that's what we have courts for. :-P

mythago | February 6, 2005 10:54 AM

Well, Brian, whatever your position on what marriage ought to be, legally speaking, in the United States it is considered a fundamental right. That was settled some time ago and is why the Supremes struck down laws against interracial marriage (which were charmingly known as 'anti-miscegenation laws', as that was their real purpose).

Even were it not a fundamental right, we have a law that draws a gender-based distinction, which means the State of New York needs to offer some serious justification for the law. If you really want me to get into why the usual ones are unpersuasive, that's a whole nuther post.

The judge did NOT "write a new law." The judge preserved the existing law, striking down those portions of the law that were unconstitutional. An activist judge would have said, gosh, this is unconstitutional, but I don't think those queers should get to marry so we'll ignore it.

There are plenty of activist conservative judges. They just don't get talked about in Heritage Foundation position papers much, for some reason.

Chris Byrne | February 6, 2005 01:32 PM

Actually Brian, an important distinction. Rights are not defined or granted by any document, even the constitution.

Rights are inherent to all men, by their nature.

The constitution only sets forth the nature, and form of government, and the ways in which it is permissible for that government to limit those rights inherent to man.

I do agree however that marriage isn't a fundamental right. Marriage is two things, a civil contract, and a personal vow.

I believe that all should have access to this civil contract equally, but laws that say otherwise are not necesserily inherently unconstitutional at the state level, and that there is no authority one way or the other federally (nor should there be, without a constitutional amendment one way or the other).

The problem I have is, this isn't about the civil contract. It's really about a big symbol saying to the world "it's OK to be gay".

Guess what, you can't change peoples minds with a judges ruling. You have to wait until people change their minds on their own (with some pressure here and there I'll grant), and any attempt to foce the issue just causes resentment and negative laws being passed.

14 states now have constitutional amendments explicitly banning gay marriage, most of them just in the past year, with another 9 at least coming up this year, all of them likely to pass.

Do you really think that would have happened had not gay activists forced the issue in massachusetts (which happens to be where I grew up), which is almost certain to pass it's own ammendment once it comes to referrendum in I believe 2006?

Not only that, but as predicted by everyone against the issue, and denied by everyone for it, couples have already started filing suit against other states for recognition of their marriages based on full faith and credit.

Legislating peoples thought has never worked, and will never work, and backdoor legislating thrugh judicial decisions doesnt work. If people aren't ready for change, having it thrust upon them doesnt work.

You need to wait until you have the votes, or start a damned revolution to overthrow the government and replace it with one that stays out of who you fuck.

Hell I'd join.

SaraS | February 6, 2005 03:23 PM

"The problem I have is, this isn't about the civil contract. It's really about a big symbol saying to the world "it's OK to be gay"."

For some of us it is more about the civil contract than somehow getting everyone in the world to approve of my relationship. Frankly, I don't care if some people have an issue with how I live my life. I simply want to legally protect my family. I'd like the person closest to me in the world to NOT be a legal stranger.

People making the argument that it isn't about the civil contract part often seem to think that all the rights of marriage are easily accessible with private contracts, which is not the case at all.

I have no desire to legislate other people's thoughts. I always laugh at that idea though, and wonder, have the people making this argument ever met someone who doesn't approve of a son or daughter's straight marriage? I have. One of my co-workers once said that his parents regard his wife as "that whore he married". The fact that it was a perfectly legal marriage did not require them to approve of it. Likewise, individuals are still welcome to disapprove of those who choose to marry someone of the same sex.

"in massachusetts (which happens to be where I grew up), which is almost certain to pass it's own ammendment once it comes to referrendum in I believe 2006?"

Actually, Chris, that is not so certain at all. Although the amendment to the Massachusetts state constitution did pass in 2004, it must pass another session in 2005, then go before voters in 2006.

Here's the thing though - NONE of the legislators who voted AGAINST it lost their seats in the 2004 election.

Also, six open seats were won by individuals who supported gay marriage and were opposed to the amendment.

Two incumbants who voted in favor of the amendment lost their seats to challengers who were opposed to the amendment.

So I don't think that this amendment is anywhere close to a done deal. And, since we are talking about elected legislators here, the whole activist judges business goes out the window.

This post over at Alas, a Blog sums it all up:
http://www.theennead.com/amptoons/blog/archives/2004/11/02/some-good-news-on-same-sex-marriage/

Brian | February 6, 2005 03:30 PM

Mythago:

"...in the United States it is considered a fundamental right. That was settled some time ago..."

Non-confrontational question: When, in what context, and in what manner was the issue settled? Was it a legal decision, a public referendum, or something? I'm 24, and have only really been paying close attention to politics and social issues for a couple of years now, so if this was something big that took place awhile ago, I'm likely not too familiar with it.


Chris Byrne:

"Rights are inherent to all men, by their nature.

The constitution only sets forth the nature, and form of government, and the ways in which it is permissible for that government to limit those rights inherent to man."

That's a very true argument, but it's somewhat ethereal. For the purposes we're dealing with here, the *codified* rights set forth in the Constitution are what are (ostensibly) enforced judicially. It's the "Bill of Rights," not the "Bill of the Select Rights We Chose to Give Folks" - thus, for the purposes of this discussion, when I say 'rights,' I do in fact mean the constraints or lack thereof set forth constitutionally.

SaraS:

"And, since we are talking about elected legislators here, the whole activist judges business goes out the window."

Exactly right... now if pro-homosexual-marriage advocates are willing to let the *legislatively passed* marriage amendments stand in those states where they've been enacted, then (in theory, at least) everybody can be satisfied.

Chris Byrne | February 6, 2005 04:09 PM

Please remember, in all of this, I am in favor of allowing gays to marry. I just oppose doing it judicially instead of legislatively. I believe in the ends, but not the means.

SaraS, I hope you are right, I don't think that explicitly banning gay marriage by constitutional amendment (or any other means) is a good idea, and Im sure the federal amendment will fail. In fact I dont think it will ever even see a vote. But in Massachusetts I think it's a different story.

I'm basing my thought on the inherent social conservatism of the most Irish (43%), and most catholic (40%), and outside of Utah the most sexually repressed state in America.

The state may have decades worth of democratic voting recrod, and even kept Barney Frank in office for 24 years, but I grew up in Southie, Dorchester, Milton, and Qunicy and everything in my gut says the people are going to go to the catholic conservative side here.

It's funny, I've lived in San Francisco, Key West, and all over Europe for a while; I went back to Boston a few months ago, for a few week visit, and in my life I have never seen so many happy open lesbian couples as I did on that visit, but still, I dont think I ever saw an openly gay male couple outside of downtown, Cambridge, and Brookline.

Lots of people were talking about it, and every single one of them was against it except the hardcore lefties. Even some of my gay friends were against it (they thought it would provoke hatred and that it should wait). I'm talking dozens of people from all over the area. It was mostly a visceral, unthinking gut level reaction, and it seemed mostly to be directed towards gay men.

I'm sure it's no surprise, but it seems like the people are mostly okay with lesbians but still not with gay men, probably at level of raw physical disgust. I dismiss out of hand the argument that any man who doesn't like gays is suppressing his own homosexuality. I know for a fact that while it is on occaison true, it's mostly after school special bullshit.

Oh and, not exactly on topic, but the previous graph brought it to mind: Gods but I wish people would stop using the term homophobia. It's just silly. Not liking gays doesnt mean you're afraid of them, and suggesting it does just looks stupid.

I have found, in general, that a lot of people are offended by the notion of a woman having a wife, or a man having a husband. I dont think it's even conscious, it just seems wrong to them, and they react agasint it.

This is not to dismiss the intellectual arguments that people make against gay marriage (though I disagree with them), or for it, I'm just trying to explain why I think people arent ready for it and will vote against it.

Chris Byrne | February 6, 2005 04:14 PM

Oh and Brian, you know the activists won't accept the legislatively enacted bans.

They are already making the preliminary moves to challenge the constitutionality of the amendments in several states under federal pre-emption of equal protection. I don't think they are going to get anywhere with it though.

THey may be successful in overturning the DOMA (which was horribly concieved and clearly ahs no constitutional basis).

Oh and there needs to be a distinction made.

There are two main ways in which something can be unconstitutional. It can be ruled that a law explicitly violates some provision, or it can be ruled that the authority or standing for the law isnt provided in teh constitution.

The first argument is much easier to argue if you have solid backing, but in the case of gay rights in general, and gay marriage in aprticular it has almost always failed. Its not like with civil rights where there were clear abridgements of the reconstruction amaendments going on. So the parties are left to argue that there is no constitutional authority for these laws to be passed. IN this they are correct (at least federally), but the courts have been loath to limit the pwoer of the legislature in this way unless it was particularly egregious. So far the courts havent found antigay marriage legislation to be such.


Andrew Wade | February 6, 2005 04:22 PM

Matt McIrvin wrote re. fixing an anti-intellectual culture:
"How? I've been trying to figure this one out for thirty years."

As a society, indoctrination in schools is probably the way to go. (Yes I see the irony). But also teaching kids the intellectual tools useful in critical thinking. Basic logical fallacies. The scientific method. Basic Statistics. Methods of propaganda. Canada is now teaching media literacy in junior schools; that's a good start.

As an individual, I really don't know. I volunteer as a tutor at a homework club. I don't know if my attitudes rub off on the kids, but at worst I am helping them with the more mundane aspects of their education.

mythago wrote:
"Please remember that legally, the problem is not 'gay marriage.' The issue is that the marriage laws draw a distinction based on gender."
Interestingly, that was not the issue up here in Ontario. The issue up here was that gay and straight people were subject to differential treatment based on their sexual orientation because gay people they were denied their choice of whom they wished to marry. (As far as I can tell, the language was a bit awkward).

Brian wrote:
"I believe that it's an institution (in general terms I think of it as a societal privilege) heretofore defined solely in terms of heterosexual unions."
There are quite a few cultures where the husband did not have to be male, and quite a few where the wife had to be female. I don't know if there are any cultures that didn't differentiate between husband and wife. Perhaps that's what you meant?

Chris Byrne wrote:
"and any attempt to foce the issue just causes resentment and negative laws being passed."
No, it does not *just* cause that. The struggle for racial equality generated very severe blowback. But it also generated change. Do you seriously believe that the lamentable position of blacks (on average) in today's society would be anywhere near as good as it today were it not for direct action and unpopular laws?

Chris Byrne wrote:
"Not only that, but as predicted by everyone against the issue, and denied by everyone for it, couples have already started filing suit against other states for recognition of their marriages based on full faith and credit."
WTF? I'm not aware of anyone at all that denied that. Sure a few (not all) proponents of same-sex marriage argue that full faith and credit is not applicable, but who was foolish enough to think that there wouldn't be lawsuits?

Brian | February 6, 2005 05:49 PM

Chris:

"They are already making the preliminary moves to challenge the constitutionality of the amendments in several states under federal pre-emption of equal protection."

Yeah, there was meant to be a dusting of sarcasm on my last comment there. :-P In any event, you may be right about them not making it very far... if they do make headway, though, then things are going to get very interesting, very quickly.

Andrew:

"There are quite a few cultures where the husband did not have to be male, and quite a few where the wife had to be female. I don't know if there are any cultures that didn't differentiate between husband and wife. Perhaps that's what you meant?"

Sorry, I should have been more specific. I meant what I understand to be the generally held historical perception of marriage here in the States, and thus the views that most heavily influenced the historical authors of our law.

"I'm not aware of anyone at all that denied that."

Regardless of who and what Chris was referring to, I'm pretty sure that there were some who argued that there wouldn't be any problem with the "let each state decide for itself" approach to the issue (mostly in the debate about DOMA and FMA, I think). With the 'full faith and credit' and 'equal protection' suits both being filed, they've been proven decidedly wrong.

Andrew Wade | February 6, 2005 08:28 PM

Brian wrote:
"Sorry, I should have been more specific. I meant what I understand to be the generally held historical perception of marriage here in the States, and thus the views that most heavily influenced the historical authors of our law."
No problem; I think I get you now.

Brian wrote:
"Regardless of who and what Chris was referring to, I'm pretty sure that there were some who argued that there wouldn't be any problem with the "let each state decide for itself" approach to the issue (mostly in the debate about DOMA and FMA, I think). With the 'full faith and credit' and 'equal protection' suits both being filed, they've been proven decidedly wrong."
There were folks claiming that there wouldn't be lawsuits? Given the amount of B.S. in politics I suppose that's likely. But that's still a far cry from what Chris said.

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