As Ed Whelan has noted over at Bench Memos, the names of the Ninth Circuit judges who will be hearing the appeal in the Prop 8 case have been announced, and one of them is Stephen Reinhardt. His radicalism is worth noting. Consider, for instance, his decision that the right to bear arms is a collective rather than an individual right, his decision that the Constitution contains a right to physician-assisted suicide, his decision invalidating California’s term-limits law, his decision allowing schools to ban T-shirts criticizing a school’s gay-rights policy, and, of course, his joining the opinion ruling the recitation of the Pledge of Allegiance unconstitutional.
This pattern goes back some time, as this 1997 Weekly Standard article notes. Significant to this particular case is his ruling that the federal Defense of Marriage Act is unconstitutional (on due-process grounds, no less); the context was the question of spousal benefits for a public defender.
Even the Onion has traded on his reputation — in “Activist Judge Cancels Christmas.”
It's too bad more of we conservatives don't see marriage as an individual right.
Reply to this commentLinkReport AbuseWhy is that bad? Marriage isn't an individual right. It's not really a right at all. What is being asked is not for the "right to marry" - to the extent religious groups will perform such ceremonies, anybody can get married. What is being demanded is that the government shower upon those individuals benefits and approval - and nobody has a right to that.
Reply to this commentLinkReport AbuseCorrect. Why should some expect the same equal treatment "showering" of "benefits and approval" from the government as others?
The fact that the Supreme Court has already found marriage to be a "basic civil rights of man, fundamental to our very existence and survival." And a "fundamental freedom" is of little relevance here.
Reply to this commentLinkReport AbuseHow exactly can an institution that, by definition, requires (at least) two people be considered an 'individual' right?
And reldim is right. It's not about the "right" to marry. It's about benefits and approval.
Reply to this commentLinkReport AbuseIf marriage is an individual right, either contained in the US Constitution or protected by it, then EVERY state law prescribing and setting criteria for the issuance of marriage "licenses" is unconstitutional, including those that allow for same-sex marriage.
If it's an individual "right", then the state has no authority to license the practice or preclude ANYONE from becoming married. The Supreme Court never even so much as intimated that marriage laws are unconstitutional, which they would have to do to declare marriage an individual "right".
And of course, the one question that no one even likes to ask has never been answered: LEGALLY SPEAKING, from the perspective of the Constitution or natural rights generally, how does one differentiate between homosexuality and bigamy or polygamy?
And if both people in the relationship are over the age of 18, you can add incest to the question.
Reply to this commentLinkReport AbuseMarriage is not an individual right in the sense other rights are -- such as freedom of speech and right to keep and bear arms. The right is the right to define marriage in a certain way, and that right belongs to the people who exercise it through their state legislatures. Since Creation, marriage has been defined in a certain way and the battle is whether or not the people in a democracy are able to continue doing so.
Reply to this commentLinkReport AbuseWith Reinhardt on the decision, it is more likely the Supremes will take it and reverse it.
"The right is the right to define marriage in a certain way, and that right belongs to the people who exercise it through their state legislatures. Since Creation, marriage has been defined in a certain way and the battle is whether or not the people in a democracy are able to continue doing so."
So anti-miscegenation laws passed by state legislatures should then stand?
"Since Creation, marriage has been defined in a certain way" Which way is that? Jacob had 4 wives. In Genesis, women are required to marry their rapists.
Reply to this commentLinkReport AbuseActually, Jacob had two wives (unless I'm missing something). And, his intent was to only have one (his father-in-law cheated him).
And, no, women are not "required to marry their rapists" - not if you mean the law requires it. In actuality, when Dinah (daughter of aforementioned Jacob) is raped, Jacob deceptively agrees to allow the man to marry her - if he and his menfolk will be circumcised; then Jacob and her brothers go and kill the man and his household while they are recovering from the procedure.
Don't argue in bad faith - it demeans your position.
Reply to this commentLinkReport AbuseMyKu:
Failed judge, cheer up!
You'll always have a future
in climate "science".
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Exactly how long does this have to go on before he gets chucked off the bench? Seriously...who has dropped the ball - what group of citizens? What can be done?
Some day this moonbat is going to make a *correct* ruling - only to have the SCOTUS overturn it out of sheer rote.
Reply to this commentLinkReport Abuse"The Supreme Court never even so much as intimated that marriage laws are unconstitutional, which they would have to do to declare marriage an individual "right"."
Horsepucky!
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... 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 discrimination. 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."
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Reply to this commentLinkReport Abuse"Can you be a conservative and believe in God? Obviously. Can you be a conservative and not believe in God? This is an empirical essay, and so the answer is, as obviously, yes. Can you be a conservative and despise God and feel contempt for those who believe in Him? I would say no."
-- William F. Buckley, "Did You Ever See a Dream Walking?"
@Right of Center, what you've heard about what the Bible records and teaches is inaccurate: you don't know what you're talking about, and the anti-Christian bigotry you display contradicts your online nom de plume.
More to your point, over the centuries, marriage has been recognized almost completely universally as the union of one man and one woman. Even cultures that embraced polygamy didn't buck this trend: they just allowed for multiple simultaneous marriages, as Jacob was married to Leah and also married to Rachel, but Leah and Rachel weren't married to each other.
Individual adults may indeed have the right to live with and have relations with whomever they choose, but there is no right to compel the government to condone all relationships. That position doesn't just require the re-definition of an institution that long predates even Western civilization, it requires defining the institution into oblivion: a word that means ANYTHING ceases to mean anything in particular, and your arguments about individual rights can just as easily be invoked in support of any number of eccentric configurations of human beings.
Reply to this commentLinkReport AbuseOh, and Right of Center, you quote the Supreme Court's claim that "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination."
1) What restrictions on marriage do you believe is permitted by the 14th Amendment, if not the restriction that has been recognized since time immemorial that marriage is the union of a man and a woman?
2) Do you really believe that the authors of the 14th Amendment, the states who ratified it, and the court who gave this interpretation thought that the amendment prohibited the traditional definition of marriage? If so, why have we not realized this until now? And if not, just what are doing calling yourself "right of center" if you believe in radically redefining laws and court rulings against the obvious will of the people and the courts?
Reply to this commentLinkReport AbuseComparison to miscegenation laws is disingenuous, as the definition of marriage was still a man joined to a woman. There is NO change in the defined relationship when allowing inter-racial marriage. As one half of a "mixed" marriage, I am particularly offended that you would equate my relationship to that of a homosexual couple.
Reply to this commentLinkReport AbuseTalk about arguing in bad faith!
Right Of Center takes a case from the Supreme Court centered squarely on the 14th amendment's specific reference to "race" in its equal protection clause, quotes the Court's reference to that clause's specific language on race, and then proceeds to argue that proves his original statement that marriage is an individual right that cannot be infringed by the state.
Right of Center: You couldn't have made my argument any stronger.
1) You quoted dictum, that portion of judicial opinions that is not necessary or central to its holding. The Court relied squarely on the specific reference to race contained in the equal protection clause. If the holding was "this is a fundamental human right that cannot be infringed," then the reference to the equal protection clause is superfluous.
Re-check the Court's breakdown - the only point of agreement was that the VA marriage statute violated the equal protection clause of Amendment 14.
2) You just proved that if you want the 14th amendment to protect gay marriage, you'll have to amend its language to include some reference to "sexual identity" in the equal protection clause, just like it specifically refers to race.
3) I'll add you to the list of people who cannot or will not legally differentiate under the clauses of the US Constitution, or natural rights doctrine, between gay marriage, bigamy, polygamy, and consensual incest among adults.
Reply to this commentLinkReport Abuse"Comparison to miscegenation laws is disingenuous, as the definition of marriage was still a man joined to a woman."
not if you are saying that marriage rights are not individual rights. If they're not then anti-miscegenation laws passed by the legislature should not be overturned by the courts on Constitutional grounds.
The definition of what constitutes marriage has been changed many times in our history. Once it was a matter of property. Wives were considered as property and treated as such. We don't accept that position anymore.
If we accept that government should not prohibit mixed race marriages then there is no logical reason we should prohibit same sex marriages.
Reply to this commentLinkReport Abuse@Right of Center, I don't believe that the definition of marriage has actually changed that much: even when simultaneous marriages were permitted, and even when women didn't have equal standing with men, marriage was still the union of a man and a woman. You might as well argue that the definition of voting changed when suffrage was expanded to women or 18-year-olds, or that the definition of voting changed when electronic ballots were introduced.
You write, "If we accept that government should not prohibit mixed race marriages then there is no logical reason we should prohibit same sex marriages."
Sure, there are plenty, beyond the obvious point that "same-sex marriage" is an oxymoron: there is the fact that natural procreation only results from one type of sexual relationship, the fact that a stable household of mother and father is (ceteris paribus) the best environment for raising children, and the truth that men and women are different and even complimentary.
I ask again, what restrictions on marriage do you believe [are] permitted by the 14th Amendment, if not the restriction that has been recognized since time immemorial that marriage is the union of a man and a woman?
I ask because, if you believe there is no logical reason to preserve the traditional definition of marriage, I wonder how much you think the definition should be stretched.
I also note that, by your logic, if the segregated South is wrong to have separate restrooms for whites and coloreds, then "there is no logical reason" why we should have a men's room and a ladies' room.
Reply to this commentLinkReport Abuse"And of course, the one question that no one even likes to ask has never been answered: LEGALLY SPEAKING, from the perspective of the Constitution or natural rights generally, how does one differentiate between homosexuality and bigamy or polygamy?"
I'll give this one a go (and honestly, if you tried to ask gay rights advocates this question, they'd answer it. It's not really a big secret or a tough question.)
Right now, our entire system of laws - tax laws, inheritance laws, family laws, health insurance laws, everything is based on a two-person marriage. Gender is irrelevant. Few, if any, laws remain on the books that provide different treatment of a husband versus a wife.
Within that system of laws, the government is choosing to bestow benefits on male/female marriages, but not same gender marriages. The burden on the government to stop discriminating and provide benefits to same sex couples is de minimums, whereas the burden on the government to stop discriminating against polygamists is HUGE.
When you add in the fact that homosexuality is not a choice, whereas polygamy is, then the difference between the two becomes more stark. Minor inconvenience to end discrimination of people who have no choice. Apocalyptic inconvenience to end discrimination who choose to marry multiple partners.
And because your next argument is going to be about the "choice" aspect here, I'll answer that too. Bans on polygamy discriminate against everyone. Nobody can marry more than one person. So there's no discrimination. Bans on gay marriage discriminate only against gay people. Straight people get to wed people they love and are sexually and physically attracted to, and receive government recognition and benefits for such a union. Gay people are denied this. Sure, they can still marry someone of the opposite sex, but seriously, what woman is going to marry a gay guy?
Listen, here's the deal. If gay marriage isn't legal, gay people aren't just going to vanish. They will still exist. People like me will still love and accept them. Employers like Google will still hire them and give them benefits. They will figure out ways to have children. They will find lawyers to help them create their own legal system to mimic the protections of marriage. Their kids will go to public schools, where teachers will be polite and civil and not lie to everyone if Heather has two mommies.
I get that conservatives are concerned about liberal interpretations of the constitution. I get that there are differing interpretations of the 14th Amendment. I can be civil to people who feel differently about this. But, the arguments I've seen against marriage all seem to rest on the proposition that if gay people can't marry, they just won't exist. They will. Conservatives and family values aren't going to win this one. So what's the point of not letting this happen? If this is really about the children and not about homophobia, and you can't stop a lesbian from procreating somehow. Not without some really seriously grotesque, non-Conservative type interventions anyway. So, isn't it better that kids of gay couples live in a married family with the related state protections, than live in some second class pseudo-relationship, where we leave it up to the activist judges you all fear so much to decide those kids fates?
Reply to this commentLinkReport AbuseIf you citizens in teh majority do not want gays to have the benifits and 'approval' that comes with civil marriage then pass a law that says we do not have to pay the taxes on it. We shouold not pay for something that you 'people' disalow us to utilize, but instead reep all the benifits from yourselves. that my not so friend is unconstitutional and extremely un-American in itself!
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