Politics: Onward from New Hampshire

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.) Do you think that states with equal protection guarantees would have so phrased them if they thought a majority of their s. ct. would have deemed it to extend to require gay marriage? No.

Constitutions embody general principles. Do you think the Fourteenth Amendment would have been enacted if its framers had been told that the Supreme Court would decide Loving v. Virginia or Brown v. Board? Probably not. But they were enshrining a principle, not outcomes.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Sure, but what Bilmore said Allard said.

Do y'all not practice in courts in which the rule is that you consult the legislative history only when the language of the statute is unclear and cannot be resolved on the grammar, with a judicially noticeable dictionary? Recognize that, mere days ago, several smart people were arguing that strict constructionism is a superior method of constitutional interpretation.

Allard's idea of what this amendment does isn't worth a bucket of warm spit. Plus, I think it's a lie. I cannot wrap my brain around why "state law" would have been included if his intent was other than what he now says.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Sure, but what Bilmore said Allard said.

Interesting.

Scalia's suspicion of legislative intent seems relevant here. And consider what happened when the Supreme Court interpreted the Privileges and Immunities Clause. The language in these things can take a life of its own.

On sovereignty, I agree, it's turning things on their head, or some part of the body, perhaps the elbow. But that doesn't mean it can't be done.

I didn't mean to say that it couldn't be done, only that it didn't strike me as a plausible explanation for your interpretation of the second sentence. Obviously, Allard undercuts me some, although he's not parsing the language.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
Supremacy clause?

If they wanted to limit the marriage definition to federal laws, they would have said "Marriage under the laws of the United States," not "in the United States."

I'll see your Supremacy clause and raise you a 14th amendment. Under your approach, Art. IV, Sec. 2 obviates the 14th amendment, sec 1, p&i clause. And I'll also toss in a 15th and 19th amendment. I hope you'll see my raise with the incorporation doctrine, because that seems more likely to get you where you're going, even though either phrasing seems to result the same--the laws of the united states are still supreme, no?

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
Constitutions embody general principles. Do you think the Fourteenth Amendment would have been enacted if its framers had been told that the Supreme Court would decide Loving v. Virginia or Brown v. Board? Probably not. But they were enshrining a principle, not outcomes.

Agreed, but if one were sufficiently outraged by such decisions, one might seek a way to overrule them, no? And if there's an "expedient" way to do so, one might use it.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
I cannot wrap my brain around why "state law" would have been included if his intent was other than what he now says.

Would the existence of a state law, not a constitutional right, guaranteeing equal rights (of some sort) not provide ample reason?

[bilmore]

Originally posted by Atticus Grinch
Do y'all not practice in courts in which the rule is that you consult the legislative history only when the language of the statute is unclear and cannot be resolved on the grammar, with a judicially noticeable dictionary? Recognize that, mere days ago, several smart people were arguing that strict constructionism is a superior method of constitutional interpretation.

Allard's idea of what this amendment does isn't worth a bucket of warm spit. Plus, I think it's a lie. I cannot wrap my brain around why "state law" would have been included if his intent was other than what he now says.

I didn't post it on the theory that "lookie, we can point to this and he can't fuck us!", but in order to maybe suggest that reasonably-made suggestions that allay concerns might well be taken, given his expressions of intent.

And, yeah, if he then fights those reasonably-made suggestions, well, maybe he's lyin'.

They're concerned, I think, with the state-to-state domino effect that can only be set in motion by courts. Like Ty said, they want to co-opt courts out of their normal role as it concerns marriage, because they don't trust the lefty judges for shit. Start thinking of language that does that, and, if you can easily come up with alternative language that accomplishes what they say they want, then, again, maybe they're lyin'.

[Tyrone Slothrop]

Originally posted by bilmore
I didn't post it on the theory that "lookie, we can point to this and he can't fuck us!", but in order to maybe suggest that reasonably-made suggestions that allay concerns might well be taken, given his expressions of intent.

And, yeah, if he then fights those reasonably-made suggestions, well, maybe he's lyin'.

They're concerned, I think, with the state-to-state domino effect that can only be set in motion by courts. Like Ty said, they want to co-opt courts out of their normal role as it concerns marriage, because they don't trust the lefty judges for shit. Start thinking of language that does that, and, if you can easily come up with alternative language that accomplishes what they say they want, then, again, maybe they're lyin'.

Courts will interpret the text, not Allard's explanation. Its legitimacy turns on what Congress and the states adopt, not what he thought he was writing.

There's no domino effect, by federal law.

And it's funny to hear this pitched as an attack on courts, since what's happening here in SF is the result of elected officials' actions, and conservatives are going to court to stop it.

[bilmore]

Originally posted by Tyrone_Slothrop
Courts will interpret the text, not Allard's explanation. Its legitimacy turns on what Congress and the states adopt, not what he thought he was writing.

I should give up on english.

There's no domino effect, by federal law.

And shorthand.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Would the existence of a state law, not a constitutional right, guaranteeing equal rights (of some sort) not provide ample reason?

So the purpose of that clause is to nullify state laws, enacted by an elected legislature, that either provide equal civil union rights to gays, or that in general terms require non-discrimination against gays under state laws, and the CONSTITUTIONAL AMENDMENT is designed to prevent a court from finding a right to civil unions in a legislative enactment, when that issue could be resolved more clearly by a contrary enactment by the state legislature or an amendment to the statute?

I'm sure the state legislatures will all be grateful to be put through their paces on ratifying a FUCKING AMENDMENT TO THE UNITED STATES CONSTITUTION to be saved the trouble of limiting a state law that might be construed by a court as requiring civil unions, or the trouble of later overturning such a statute if it is every successfully so used by an "activist judge."

[ltl/fb]

Originally posted by bilmore
From the lips (okay, the pen) of one of the authors, if this helps:

==================

"Five of my Senate colleagues and I have introduced a resolution to amend the U.S. Constitution. Our amendment would define the institution of marriage as a union between a man and a woman. This topic that has generated an enormous amount of information, some credible and some not. I want to set the record straight here on my website so citizens know exactly what my amendment will do, and what it will not do.

The language I introduced is simple and direct: the institution of marriage “shall consist only of the union between a man and a woman.” This definition is neither new nor radical. It is a concept embraced by a majority of Americans of all religions, races and political affiliations. A recent national Wirthlin poll revealed that 62 percent of Americans agree with this definition and that 57 percent support an amendment to the Constitution protecting marriage. The Amendment further reads that no law, at any level, “be construed to require that marital status or legal incidents thereof be conferred on unmarried couples or groups.” Simply put, this means that only a marriage between a man and a woman will be legally recognized as a marriage. This does not prohibit state legislatures from creating other types of legal unions.

Opponents of this amendment argue that it is not that simple. I submit that it is. Opponents argue that a Constitutional definition of marriage threatens to undo existing state authority to allow for the creation of civil unions. This claim is absolutely false.

My Amendment is specific to the traditional union of marriage. Regardless of alarmist interpretations by those with broader political agendas, that definition does not seek to define or negate any power held by state legislatures to create civil union statutes and any benefits that may apply to that status. With a Constitutional definition of marriage, democratically elected state legislators would remain free to define civil unions without having the courts thrust those definitions upon them. Further, the institution of marriage remains sacred and protected from activist courts as well. While I have long advocated keeping the federal government out of the homes of citizens, I prefer the courts stay out of their homes as well.

There are no hidden intentions behind my proposal. The Amendment is a scant 52 words dedicated solely to defining the union of marriage in the way all 50 states already agree upon.

The Amendment reads as follows: “Marriage in the United States shall consist only of the union of a man and a woman. Niether this Constitution, nor the Constitution of any State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

By defining marriage, but going no further, the Amendment does not impose on the authority of the states. A series of courts - not state legislatures, but courts - have sought to redefine the institution of marriage in recent years. This in a country where not one state legislature has sought to change the definition of marriage. "

Wayne Allard
http://allard.senate.gov/features/Marriage/

While I of course believe that the words of politicians who say "there are no hidden intentions behind my proposal" should in all situations be accepted at face value, I have a question -- why is the "legal incidents [of marriage]" language included? WhatEVER. Totally.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
Courts will interpret the text, not Allard's explanation.

Sure, but despite atticus's strict constructionism, interpreting the constitution has not been uniformly conducted in Scalia's Chevron-type Stage I, Stage II analysis. If a party marshalls uniform evidence of what an amendment was purportedly designed to accomplish, and it's spelled out in tabular form at the Alliance for Marriage's website, and, if Allard is an indicium of what R's mean, there are enough wacko judges on the 9th circuit to limit the interpretation to allow for the enforcement of legislatively initiated and passed laws providing for civil unions.

[Mmmm, Burger (C.J.)]

Originally posted by ltl/fb
I have a question -- why is the "legal incidents [of marriage]" language included? WhatEVER. Totally.

Like, Vermont. It's readily explained by concern over state courts imposing against majority will an obligation on the state to extend benefits.

[Secret_Agent_Man]

Originally posted by Mmmm, Burger (C.J.)
"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

It seems to me that this language not only _could_ but _must_ be read to deny the possibility of states authorizing "civil unions" for gays which provide the same legal rights (vis a vis property ownership, inheritance, etc.) as married couples enjoy.

Well guys, if you ride the tiger long enough you get eaten.

S_A_M

[Tyrone Slothrop]

• Q Scott, on the day's other big announcement, four years ago, in the South Carolina primary debate, the President was asked, "So if a state were voting on gay marriage, you would suggest to that state not to approve it?" And the response of the President was, "The state can do what they want to do." When did the President change his mind that the issue of gay marriage was not a matter for states and, in fact, was a federal issue?
  
  MR. McCLELLAN: John, the President has always firmly believed that marriage is a sacred institution between a man and a woman. He has always held that view. And I think what you're referring to is that the President has talked about how states have the right to enter into their own legal arrangements. And that's what the President is referring to.
  
  Q The words in the question were "gay marriage," and I do realize that the President has opposed gay marriage, but when did he --
  
  MR. McCLELLAN: The President's view was very well-known during the campaign of 2000, that he believes marriage is a sacred institution. And he supported efforts to protect and defend the sanctity of marriage.
  
  Q Which is what I just said. But my question was, to go to the actual substance of my question, was, when did the President change his mind that this was not an issue for states and, in fact, was a federal issue?
  
  MR. McCLELLAN: Again, I dispute the premise of your question. His views have always been well-known on this very issue.
  
  Q Yes, but he always described it as a state issue. Now he's describing it as a federal issue. When did he change his mind?
  
  MR. MCCLELLAN: No, no, he said that states have the right to enter into their own legal arrangements.
  
  Go ahead, Terry.
  
  Q Scott, is this an issue that the President wants to raise in the campaign and try to draw a distinction with Senator Kerry, who opposes a constitutional amendment?
  
  MR. McCLELLAN: Terry, it's an issue of national importance. You heard the President address that earlier, in his remarks. There is confusion -- growing confusion in this country right now because of this issue. And that is why we need clarity. The President specifically called for this debate to be conducted in a civil manner, without bitterness or anger, as he put it, and with respect for one another. The President recognizes that an issue of national importance like this requires leadership and requires a President to make decisions, and then to raise the level of discourse and have a civil discussion on this issue. And that's what he's done.
  
  Q Does that mean that he will try to draw a distinction with Senator Kerry? You know, he said -- the President said last night, it's all about choices. Is he going to try to say that this is what he chooses, and here's what I choose?
  
  MR. McCLELLAN: The President is going to continue to fight to protect the sanctity of marriage. I think you have to look at this in the context of recent events. We cannot pretend that the events in Massachusetts or San Francisco are not happening. And that's why the President is providing leadership, and making a decision based on principle. And he will continue to talk about the importance of protecting this sacred institution.
  
  Q Scott, two questions. Just to follow up on John's, he was asked in that debate specifically about gay marriage, not about states having the right to form contractual arrangements, domestic partnerships or civil unions. So did he misspeak, when asked directly about gay marriage, when he answered, it should be up to the states?
  
  MR. McCLELLAN: What I'm telling you is that the President has always believed marriage is a sacred institution between a man and a woman; that it should be an institution that is protected. And that's what the President has always made very clear. John was talking about a change, and I don't see that.
  
  Q Well, but in that actual quote he was directly asked, and the words, "gay marriage" were used in the question to him.
  
  MR. McCLELLAN: No, I think the President's views are very well known, and they are what they have always been.

linky