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Strawberry
Supporter
Username: Strawberry
Post Number: 7472
Registered: 10-2001
| | Posted on Thursday, July 6, 2006 - 2:17 pm: | 
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http://www.nytimes.com/2006/07/06/nyregion/06cnd-marriage.html?hp&ex=1152244800& en=85a00e86c6e42a03&ei=5094&partner=homepage |
Lydia
Supporter
Username: Lydial
Post Number: 2042
Registered: 5-2001
| | Posted on Thursday, July 6, 2006 - 6:45 pm: |
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From the link:
Quote:limiting marriage to opposite-sex couples could be based on rational social goals, primarily the protection and welfare of children
I'd like to hear more about this rationale from the court. Are they anticipating that same sex couples will sexually abuse their children? Abandon them? Clothe little boys in sailor outfits?
What on earth?
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TomR
Citizen
Username: Tomr
Post Number: 1183
Registered: 6-2001
| | Posted on Thursday, July 6, 2006 - 9:58 pm: |
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Lydia,
The New York legislature made a decision, as did New Jersey's. The New York Court of Appeals fulfilled its role in government and recognized that the legislature, in the name of the people, were entitled to make that decision.
Excerpting quotes from a newspaper's excerpts of a Court's decision doesn't do much to convince Albany, or Trenton, that they made the wrong decision.
Or, perhaps, I've misunderstood your references to child abuse, abandonment and, subjectively, bad taste in clothing.
TomR
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ina
Citizen
Username: Ina
Post Number: 386
Registered: 6-2001
| | Posted on Friday, July 7, 2006 - 10:25 am: |
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Tom, Lydia's referring to the court's reasoning for denying marriage to gay couples. On the face of it, it makes no sense whatsoever. Denying me marriage rights does not protect your or anyone's children. My child, however, is at a legal disadvantage because her parents can't marry. |
TomR
Citizen
Username: Tomr
Post Number: 1184
Registered: 6-2001
| | Posted on Friday, July 7, 2006 - 3:53 pm: |
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Ina & Lydia,
Rereading my post, I realize that I was less than clear in my comments.
I should have wrote that if Lydia, or anybody else is not satisfied with the result in the Hernandez case, an explanation should be sought from New York's legislature.
I also apologize to Lydia for misattributing her quoted section of the newspaper's article to the Court. It was, and is, a statement by the reporter concerning the case.
I shouldn't post when I'm tired.
TomR |
mwoodwalk
Citizen
Username: Mwoodwalk
Post Number: 557
Registered: 9-2001
| | Posted on Sunday, July 9, 2006 - 10:33 pm: |
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Read the court's full decision. There's a more detailed explanation for the "rational basis" (which is a constitutional legal standard term of art) of the legislature. But as others have said, the court ultimately made the correct decision, which was to defer to the legislature (the people's duly elected reps) to decide the issue. I wish our US Supreme Court would follow this, constitutionally correct, course more often.
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TomR
Citizen
Username: Tomr
Post Number: 1185
Registered: 6-2001
| | Posted on Monday, July 10, 2006 - 7:33 pm: |
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Mwoodwalk,
Just out of curiousity, which decisions did you find to not have rendered the appropriate deference to the legislature?
TomR |
mwoodwalk
Citizen
Username: Mwoodwalk
Post Number: 558
Registered: 9-2001
| | Posted on Monday, July 10, 2006 - 10:35 pm: |
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Start with Roe v. Wade, which completely overrode the decisions of state legislatures around the country that had reached their own decisions re: whether to permit abortions. In fact, what few people understand is that the constitutionally faithful conservatives want only to return to the pre-Roe situation where each state could decide for itself whether to criminalize abortion (just like each state gets to decide what constitutes 1st degree murder, or rape, or capital murder).
Same with the sodomy decision (forgot the name of the case) which replaced the judgment of the state legislature in question with the opinion of the Supreme Court that sodomy is a fundamental right under the constitution (which, whether you think that sodomy should be protected or not, is a preposterous decision as a matter of US constitutional law).
There are others that I can't think of at the moment, but those are two prominent examples (and ones that address pretty uncontroversial subjects, wouldn't you say?)
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TomR
Citizen
Username: Tomr
Post Number: 1186
Registered: 6-2001
| | Posted on Tuesday, July 11, 2006 - 5:18 pm: |
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Mwoodwalk,
Thanks for responding. As I wrote, I was just curious.
While I believe that Roe and Lawrence were a little bit shaky, Constitutionally speaking, I always try to take solace from Justice Jackson's comment upon the certitude of the Court's decisions.
TomR |
Michael Paris
Citizen
Username: Publius
Post Number: 30
Registered: 3-2005
| | Posted on Friday, July 14, 2006 - 8:32 am: |
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mwoodwalk, how about telling us the difference between Roe v. Wade and Brown v. Board, as a matter of constitutional jurisprudence. These decisions might be right or wrong as a matter of morality, but the same approach to constitutional interpretation that gets you to one gets you to the other.
The right to marriage can be grounded in a long line of cases about "autonomy," of which Roe is a crucial one (and, by the way, the right to marriage protects deadbeat dads and prisoners, among others), and in another long line of cases about equality of basic rights (or equal dignity), which starts with Brown. You can say that the courts should defer to legislatures in their determination to limit the right to marriage, but to do so you have jettison a lot of established and morally attractive constitutional law. The arguments on the other side of the gay marriage cases are unbelievably weak. It seems to me that when people are deeply committed to a position, but have no argument for it, the response that we often get is called rage.
I, for one, would be happiest if we dispensed with the idea of legal marriage altogether. I don't see why the state should have anything at all to say about personal relationships and family forms. Some regulatory regime would be needed for disputes and children, of course. But given legal marriage and what it means in our society, the denial of this basic right to persons on the bases sexual identity and preferences is simply repugnant. |
TomR
Citizen
Username: Tomr
Post Number: 1195
Registered: 6-2001
| | Posted on Friday, July 14, 2006 - 10:00 pm: |
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Publius,
Isn't the difference between the two cases that the Brown decision was founded upon the equal protection clause; and the Roe decision upon the due process clause. If, as you write, the Court used the same roadmap of Constitutional interpretation, the roads and destinations were in different parts of the county.
Also, while I agree that the Courts could render a decision finding a "right to marry" based upon the autonomy/privacy cases, its curious that the attorneys pressing the case in neither New York, or here in New Jersey, raised a federal Constitutional claim in the original complaints, thereby preventing consideration of the issue on appeal, and denying the possibility of appeal to the Supreme Court. In Massachusetts, the claim was raised, but rejected.
Why do you think that is?
(Does anybody know if the federal issue was raised in either California or Kentucky)?
Should you desire to do away with the idea of legal marriage, don't get married, or terminate your marriage, if you are already married.
Doing away with marriage strikes me as a bit extreme. Some people like being married; some don't; and some can't get married.
Thus it will ever be until somebody comes up with a cogent, and reasoned, legal argument that there exists the "right to marry" which you assert to be a basic right. (Or generates the political will to convince the legislatures to change the laws. But then, we'd still have that DOMA thing with which to deal ).
I've been looking for a while, and I can't make the argument yet.
TomR |
Michael Paris
Citizen
Username: Publius
Post Number: 31
Registered: 3-2005
| | Posted on Friday, July 14, 2006 - 10:27 pm: |
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Tom, you raise some interesting questions. Consider a few responses, off the cuff.
1. Yes, of course, Brown was based on the equal protection clause. From your post, I'm sure you are aware that one of the companion cases in Brown was Bolling v. Sharpe, which involved de jure segregation in the District of Columbia. Since Section 1 of the 14th Amendment says "no state shall...," and since D.C. is not a state, the 14th A. didn't apply. The Court struck down legal segregation in D.C. based on the due process clause of the 5th amendment.
Conservatives like Scalia try to distinguish constitutional interpretation in Brown from constitutional interpretation in Roe by saying that in Brown we have a "specific constitutional text," and in Roe we do not, but that claim makes no sense. The equal protection and due process clauses are equally vague, and in neither Brown nor Roe can "original intent" or "specific text" be said to be the basis for the interpretation of meaning. The Court's reliance on the due process clause of the 5th A. in Bolling proves the point.
2. I imagine gay rights lawyers are avoiding raising federal constitutional claims in their state-level litigation because they know who the federal judges are these days, and not because those claims lack merit.
3. The legal argument that you are looking for about a fundamental constitutional right to marriage that includes all persons has been made by a political scientist and lawyer named Evan Gerstmann: Same-Sex Marriage and the Constitution (Cambridge University Press, 2004). As a legal matter, he is dead on. However, it will be political struggle that decides the issue, and not law and courts.
4. I am married. If I were living completely in conformity with my political values, I wouldn't be. So you got me there.
Best regards,
Michael Paris
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TomR
Citizen
Username: Tomr
Post Number: 1196
Registered: 6-2001
| | Posted on Friday, July 14, 2006 - 11:42 pm: |
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Publius,
(I do like the name).
I'm not quite sure I understand response 1.
You initially query as the the difference between two cases in terms of Constitutional jurisprudence and assert that the same approach to Constitutional interpretation that gets us to one gets us to the other.
You most recently bring up an Amendment V Due Process case, which has nothing to do with your initial query, or my response, and use Justice Scalia'a ruminations, on cases in which he took no part, as some part of a hypothesis leading to proof of a point which, for the moment, escapes me.
Huh?
As to response 2, I agree that most plaintiffs' counsel do, and will continue to, avoid the arguments. (My query as to why was tounge-in-cheek). While looking for a "favorable" jurist may be part of the reason, I think (subject to my comment below) it is more about the argument being a loser. I just can't get around that rational basis thing, and there's no way I can get gay to a suspect class, at this point in time. (That intermediate standard thing - does anybody really understand what it is? Its a great tactic to get a judge to accept some other point, but where does that intermediate level begin and end? Really?)
As for Mr. Gerstman's writings, I readily admit I have never heard of the guy. Can you direct me to any graphs upon which I can make an assessment as to whether the book you mention is worthwhile reading?
I will add that, in my opinion, there's damn little which is "dead on" when it comes to matters of Constitutional law. If Mr. Gerstman were indeed, "dead on", the matter would be at rest and he would be a nationally known name. Revered by some; reviled by others, but known.
With regard to your point 4, be happy. its tough to find somebody with whom you want to spend all the rest of your tomorrows; and its a very good morning with which you start each of those tomorrows saying to yourself, or better, them, that you're happy that they're there.
Keep me thinking. I need the exercise.
TomR |
Michael Paris
Citizen
Username: Publius
Post Number: 32
Registered: 3-2005
| | Posted on Saturday, July 15, 2006 - 8:26 am: |
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Tom, Grestmann's argument makes sense. You can judge the merits for yourself. The book is available in paper. Cambridge is one of the best university presses in the country. His popularity is beside the point. There is no rational basis for limiting legal marriage to nonhomosexuals. Can you tell me what that rational basis is? As soon as you start to articulate it, it falls apart. The only thing supporting exclusion, aside from prejudice, is a conventional morality that can't be defended in secular terms.
Best,
Michael Paris |
TomR
Citizen
Username: Tomr
Post Number: 1198
Registered: 6-2001
| | Posted on Saturday, July 15, 2006 - 10:52 am: |
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Publius,
So far, fourty-nine State legislatures disagree with your analysis, and the Massachusetts legislature is working hard to undo that which it considers an encroachment on the legislature's domain.
Thanks again for the information on Gerstman. I was not attempting to imply that his lack of notarity detracts from the validity of his argumnet. Only that given his lack of notarity, it would appear that the arguments are not as "dead on" as you see them. I could be wrong. As I wrote, I haven't read the book yet.
Enjoy the week end.
TomR |
Michael Paris
Citizen
Username: Publius
Post Number: 33
Registered: 3-2005
| | Posted on Sunday, July 16, 2006 - 9:17 pm: |
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Tom, this "thread" is now a 2 person conversation, it seems.
But why not continue. The fact that the vast majority of the people in the country think something is wrong (or at least that there is some permissible government end in view, and the exclusion of gay people from marriage is a minimally rational means to that end, whatever it is--to use the legal lingo) does not constitute an argument. It is a statement of fact, and nothing more. There is no good argument for the denial of basic rights and equal concern and respect involved in denying marriage to gay and lesbian persons. The best argument for your view is that, notwithstanding the silence that follows when we ask for reasons, we are all better off in the long run if we work this out through the democratic process. That might have been true of Roe, but on balance I don't think so. I'm sure it is not true on this one.
The book I mentioned was reviewed, critically, by Richard Posner in the New Republic. I could send you the cite.
Best regards,
Michael Paris
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TomR
Citizen
Username: Tomr
Post Number: 1201
Registered: 6-2001
| | Posted on Monday, July 17, 2006 - 12:27 pm: |
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Publius,
You seem to believe that the will of the people, expressed through their legislatures, is not a sufficient reason to limit the benefit, or priviledge, of marriage to persons of the opposite sex.
Absent a convincing legal argument that the legislatures' action, or inaction, violates some "right", I think that's how the system is supposed to work. As I wrote above, I haven't yet been able to craft that argument. Perhaps Mr. Gerstman has the piece of the puzzle which I've thus far missed.
You call the legislatures' action a denial of "basic rights", but neither you, nor others I've asked, have been able to explain the genesis of this "right".
Some of us may see it as a denial of due process and/or equal protection, but the New York Court of Appeals decided that it isn't under the State's Constitution. And as I wrote above, the federal issues werren't addressed.
Some could say that the Court was wrong, but that just brings us back to the political process.
If you have link to the "New Republic" review, I'd appreciate it. Thanks.
TomR
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TomR
Citizen
Username: Tomr
Post Number: 1203
Registered: 6-2001
| | Posted on Wednesday, July 19, 2006 - 9:40 pm: |
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Publius,
I've had the opportunity to read a few reviews of Mr. Gerstman's work, including that of Judge Posner, as well as a few other graphs on the book.
I was also able to find the introduction section of the book.
I'm left wondering whether the Judge read the same book. He mentions beastial marriage at least three times in his review, while Mr. Gerstman pretty much puts that concept to rest with his introduction.
The little bit I've been able to glean from that which I've read thus far, is that Mr. Gerstman advocates a point of view which, while logically appealing to those who agree with his premise, would ignore established law and the principles of jurisprudence. I gave some consideration to Mr. Gerstman's proposition a few years ago, in another context; but couldn't make it work.
He could be right. Maybe it is time to examine the issue of our rights in a new perspective.
Maybe it is time to do away with "suspect classifications" and view all of our rights as applying to all persons equally, without regard to their race or gender. (Just give some thought to unintended consequences).
I look forward to reading the book this summer. Let me know whether you're interested in discussing the book when I'm done.
Thanks for pointing out the book.
TomR |
Michael Paris
Citizen
Username: Publius
Post Number: 36
Registered: 3-2005
| | Posted on Thursday, July 20, 2006 - 2:44 pm: |
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Hi Tom.
Well, as a matter of "settled law," "marriage" is a fundamental right under the Constitution for heterosexuals who want to marry someone of the opposite sex. To take that away, a state has to have a compelling justification. Loving v. Virginia (1967) found the denial of marriage on the basis of race violative of both the equal protection clause and the due process clause of the 14th A. In this regard, the right to marriage is just like the right to vote. It is not specifically enumerated in the constitution, but regarded as "fundamental" nonetheless. Once we say that, don't we have to ask why people who want to marry people of the same sex can be denied this fundamental right? Again, nevermind a "compelling" interest. There is no rational basis, unless the will of the majority and what it thinks "marriage" is counts as a reason.
I haven't yet read the NYS Ct. of App. opinion. You are right to say that if the federal issues weren't raised, then the federal argument isn't necessarily relevant in the state litigation. I'd bet things will go differently in NJ.
I'd love to have a cup of coffee to discuss the book and the issue. My email address is michaelpari@gmail.com
Best,
Michael
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TomR
Citizen
Username: Tomr
Post Number: 1205
Registered: 6-2001
| | Posted on Friday, July 21, 2006 - 12:55 am: |
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Michael,
I think you read too much into certain language in Loving, but it has been a while since I've read the decision. In any event the Hernandez Court specifically rejected the interpretation of marriage as a "fundamental right" which you advocate. (If I recall correctly, so did the New Jersey Appellate Division Court).
Things may turn out differently in the New Jersey Supreme Court, but as I wrote above, it won't be because of the federal issues.
However, doesn't the comparison of gay marriage to the issues in Loving run counter to the arguments advanced in Mr. Gerstmann's book?
Also, while I readily concede that the rights enumerated in the Constitution are not an exhaustive list of our rights, the right to vote is mentioned several times. (If I perhaps misunderstood your point, I apologize, in advance).
I'm presently waiting to hear from our library as to whether they can obtain a copy of Mr. Gerstmann's book.
Whether after, before, or while I'm reading the book, you seem like somebody with whom a coffee would be worthwhile.
I look forward to meeting you.
TomR
P.s. It is amazing that an intelligent conversation has gone unmolested for nearly a week. Perhaps Dave & Jamie will note this in their record books. |
Michael Paris
Citizen
Username: Publius
Post Number: 37
Registered: 3-2005
| | Posted on Friday, July 21, 2006 - 8:27 am: |
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Great. One last point. The right to vote is "mentioned," but only to say that, whatever it means, it can't be denied on the basis of race, sex, or age. The is no general right to vote. As you know, the Court got that general right out of the vague language of the equal protection clause, and read it to mean "one person, one vote."
Best,
Michael
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The Libertarian
Citizen
Username: Local_1_crew
Post Number: 2056
Registered: 3-2004
| | Posted on Saturday, July 22, 2006 - 12:33 am: |
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the entire driving force behind the ban on gay marriages is money. heavily funded lobbyists representing one industry are hitting this hard. that industry:
insurance companies. |
Michael Paris
Citizen
Username: Publius
Post Number: 38
Registered: 3-2005
| | Posted on Saturday, July 22, 2006 - 5:59 pm: |
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Lots of money to be made by allowing gay marriage, however.
Think weddings; think divorce and divorce lawyers; think... |
Nohero
Supporter
Username: Nohero
Post Number: 5642
Registered: 10-1999
| | Posted on Saturday, July 22, 2006 - 6:07 pm: |
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I'm having trouble trying to understand why insurance companies would lobby heavily against same-sex marriage. Are they really doing that, and what would the rationale be? |
cjc
Citizen
Username: Cjc
Post Number: 5775
Registered: 8-2003
| | Posted on Saturday, July 22, 2006 - 9:11 pm: |
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How did insurance companies manage to sway a majority of people in this country against gay marriage, even in blue states? Did they orchestrate MA? |
Rastro
Citizen
Username: Rastro
Post Number: 3618
Registered: 5-2004
| | Posted on Monday, July 24, 2006 - 11:20 am: |
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Nohero, while I don't really believe they are lobbying that hard against it, the theory is that two people who now buy insurance independently would be able to get a "family" plan, which would be cheaper. Someone who is covered under their spouse's policy is paying incrementally less than if they had to pay for themselves under their own policy.
I'm sure the dollar amounts can be significant, but I just can't see insurance companies lobbying against this. Some of the civil union laws require similar protections. |
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