Politics: Onward from New Hampshire

[Tyrone Slothrop]

Originally posted by Not Me
Loving interprets the US constitution. Hawaii's right to gay marriage is derived from their state constitution. Loving does not interpret Hawaiis state constitution.

I have never said a peep about a state constitution. We are talking about if the US constitution can be used to give gays the right to marry each other.

I think if you want to use the US constitution, you will need to make a due process/fundamental rights argument. However, when you do, you cannot come up with an argument that cannot also be used to support polygamy.

An equal protection guarantee under the state constitution, as I recall. Please tell me, which U.S. Supreme Court decision is stare decisis as to that issue under the federal constitution?

[Tyrone Slothrop]

As a public service, Wonkette translates Peggy Noonan's delphic column in the WSJ yesterday.

[Not Me]

This is the definition of marriage that they used in the Defense of Marriage Act:

http://caselaw.lp.findlaw.com/script...ol=114&page=15

MURPHY v. RAMSEY, 114 U.S. 15 (1885)

For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

[Tyrone Slothrop]

Originally posted by Not Me
This is the definition of marriage that they used in the Defense of Marriage Act:

http://caselaw.lp.findlaw.com/script...ol=114&page=15

MURPHY v. RAMSEY, 114 U.S. 15 (1885)

So what? Do you not understand that the definition of marriage is a legal choice, not a brute fact of nature?

[Not Me]

Originally posted by Watchtower
I believe the Mass. decision was under the "no rational basis" test rather than the strict scrutiny test. So even though it was under both EP and DP, it was not asserting that gays constitute a protected class.

So, I believe this means that in Massachusetts a law baring, for example, any one tall person and any one short person from marrying, or any old person and any young person, would also have no rational basis. Essentially, the state can't prevent any two categories of people from getting married, and gays just happened to be the category in front of them.

Why does the MA constitution not protect polygamy? What is the rational basis for not allowing polygamy that cannot also be said to apply to gay marriage?

[Watchtower]

Not Me,

It is so good to see you endorsing a decision that proclaims marriage is a holy institution. While I am worried about your embracing of the constitution and its separation of church and state, I am beginning to worry less about your soul. And I am sure there are many in heaven for whom Democracy and the Rule of Law are foreign concepts.

Peace be with you!

Watchtower

[Tyrone Slothrop]

Originally posted by Not Me
Why does the MA constitution not protect polygamy? What is the rational basis for not allowing polygamy that cannot also be said to apply to gay marriage?

I don't know anything about the Massachusetts constitution, but I can think of a whole bunch of arguments that would pass the (flacid) rational-basis test. E.g., polygamy is expensive because multiple wives tend not to work, and instead collect unemployment benefits.

Why do you keep ducking my question about polygamous civil unions, gay or otherwise?

[Watchtower]

Originally posted by Not Me
Why does the MA constitution not protect polygamy? What is the rational basis for not allowing polygamy that cannot also be said to apply to gay marriage?

By the way, what do you have against polygamy, anyways?

I have no doubt that there are polygamists in Heaven, given how many polygamists there have been over history. Though I believe our society has made a choice to foster a family unit with just two adults, I'm not sure why we criminalize unions of more than two.

And the rational basis is simply: we have defined marriage as a union of two people, and, yes, there are benefits we accord to that union, including the ability to pass on assets at death without a tax, but according such benefits to larger groups would render the estate tax a nullity. But you don't want to hear this, so just forget it.

[Not Me]

Originally posted by Tyrone_Slothrop
So what? Do you not understand that the definition of marriage is a legal choice, not a brute fact of nature?

That wasn't me saying that. This concept of fundamental rights, which aren't legal rights but are natural rights,*is a concept I did not invent. The U.S. Supreme Court invented this concept of fundamental rights. Just like I didn't say this quote below; the USSC did in LOVING:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. (Skinner v. Oklahoma) ...To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I take away from that that the USSC thinks of marriage as not a legal right but a fundamental right that resides with the individual. So do alot of legal scholars. The only issue is what is marriage. In the past, the USSC has defined marriage as a union between one man and one woman.


*See John Locke's writings for an explanation of what a natural right is.

[Not Me]

Originally posted by Watchtower
Not Me,

It is so good to see you endorsing a decision that proclaims marriage is a holy institution.

I didn't endorse it; I just posted it as an FYI for those would would like to know how the USSC has defined marriage in the past.

[Not Me]

Originally posted by Watchtower
And the rational basis is simply: we have defined marriage as a union of two people

How is that any different from defining marriage as a union of one man and one woman? It is not any different. If you argument is that it is definitional, then gay marriage is not allowed simply because we define marriage as one man and one woman.

That is not a rational basis argument.

[sgtclub]

Originally posted by Tyrone_Slothrop
Just so we're all clear, the book explains that after he left office O'Neill asked for all the documents he'd seen, and Treasury sent them to him. O'Neill has done nothing wrong, but some people at Treasury may now be regretting that they turned over so much stuff.

Just so we are clear, if I made a statement like that you would chide me for so easily believing.

[Watchtower]

Originally posted by Not Me
How is that any different from defining marriage as a union of one man and one woman? It is not any different. If you argument is that it is definitional, then gay marriage is not allowed simply because we define marriage as one man and one woman.

That is not a rational basis argument.

Please feel free to read the remainder of my post.

[Tyrone Slothrop]

Originally posted by Not Me
In the past, the USSC has defined marriage as a union between one man and one woman.

So do most states. And yet that is a legislative choice, not a feature of the natural world.

The doctrine of "natural rights" seems to me to be a high-falluting way of saying, this is the way we've always done it and we're not willing to listen to the idea that we should do it any differently at any point in the future, so we're going to put the whole question of limits by saying it's a fact of nature. In many law schools, basing an argument on natural rights will win you smirks and derision.

[sgtclub]

[Q]ZAPOPAN, Mexico - The Mexican crowd hooted "The Star-Spangled Banner." It booed U.S. goals. It chanted "Osama! Osama! Osama!" as U.S. players left the field with a 2-0 victory.

And that was in a game against Canada on Thursday before just 1,500 people.[/Q]


http://www.azcentral.com/sports/azet...ussoccer.html#