Sunday, May 15, 2005

Gay marriage and the 14th:

Thanks to Ed Brayton for his commentary on my last post about originalism, Brown, Loving, Lawrence, and then a possible federal court decree for gay marriage.

Just as I had finished that post, that day, news came down about a Federal District Court striking down Nebraska's constitutional amendment forbidding the state from recognizing same-sex marriages, civil unions, domestic partnerships, and "other similar same-sex relationships."

Does this federal court decision say that the Constitution demands recognition of gay marriage? Eugene Volokh thinks so ("[I]f the judge is right, then states would indeed be required to recognize same-sex marriage).

As I wrote in my last post, the Fourteenth Amendment, properly understood and logically extending its original principles to gay couples, may indeed demand that the nation recognize gay marriage (or not). But if it does, there is a proper time for it to be done. The principles of liberty and equality -- what American in principle is all about -- are objective and timeless. But if the French Revolution taught us anything it's that we can't attempt to try to implement it all at once. The American experiment with liberalism was in founding the nation on liberty and equality rights, antecedent to majoritarian rule -- but at the same time, not implementing it all at once, going at a slower pace than say, the French did. Rather, major compromises with ideals were allowed, and the changes -- the expansion of liberty and equality -- came gradually as the nation was ready for it. And even then we couldn't avoid a horribly bloody civil war to fully guarantee rights for blacks.

The point is, when only one state recognizes gay marriage (by court decision -- no state yet by democratically elected legislators), the nation isn't ready for a national constitutional guarantee of gay marriage, just as back in 1870 the nation wasn't ready for national guarantee of the right to marry interracially.


KipEsquire said...

"But if the French Revolution taught us anything it's that we can't attempt to try to implement it all at once."

My takeaway from the French Revolution is that when a majority becomes obsessed with its own status as such, it eventually turns upon itself and destroys itself. Isn't that the lesson today's hyper-conservative, theocratic, "libertarians can kiss our a-s" Republicans should be heeding?

And Volokh's reasoning is ludicrous -- the whole problem with the Nebraska amendment is that it goes so far beyond marriage as to trigger a Romer "mere animus" analysis, as I perform here.

Anonymous said...

You may be right that the country is not yet ready for a complete recognition of gay marriage, but, I think the Federal government has no choice but to recognize Massachusetts's gay marriage as valid for Federal purposes.

Marty said...

Jon is amazingly levelheaded.

And even then we couldn't avoid a horribly bloody civil war to fully guarantee rights for blacks.

And even then, it took another 100 years to actually get around to "guaranteeing" anything.

As for Romer, well, the two laws really have only one thing in common -- homosexuals -- which is not quite enough to prove "mere animus" in my book. Romer deals with gays as a class, while Nebraska deals with Marriage as an institution. Despite all the huffing and puffing, gay people are NOT excluded from marrying -- they just have to abide by the same rules as everyone else. Your "orientation" is functionally irrelevant to Marriage and similar legal arrangements. At least, so say 70% of Nebraskans.

Affirming the status quo can never be done out of "mere animus" can it? That's absurd.

CPT_Doom said...

Affirming the status quo can never be done out of "mere animus" can it? That's absurd.

Actually, the legislation went farther than that, just as Virginia's did, and limited contracts that do not have to be between married people to be considered valid if the parties are of the "opposite" sexes.

More importantly, the existing male/female marriage law in Nebraska, not to mention DOMA and other state laws, changed the status quo by explicitly requiring the male/female coupling. Until those laws were passed, the intersexed (hermaphrodites) could be married. Now they are legally barred from marriage, although they typically can get away with getting a marriage license because they appear to be a specific gender, even when they are physically a mixture of the two genders.

Marty said...

Certainly the intersexed are a very special case, and must be treated as such. But for the most part, they do have a birth certificate naming their sex, and under that sex they are allowed to marry. Human beings aren't perfect though, hence the need for much compassion and flexibility. Homosexuals are generally not in that dire predicament, however, because like straights they are distinctly male and female, and just as heterosexually fertile.

Second, (and please forgive that throwaway closing line in my post, it's weak) it seems odd that an attorney general's opinion could sway a judge to completely toss the (5-year old?) Amendment because of a vague and supposed "limiting of same-sex contracts". Especially considering that no contracts have been denied, and none were in question that i know of. At least none that were not so similar to "marriage" as to fall explititly within the narrowed scope of the Amendment.

Someone mentioned "same-sex organ donation" on another blog? Do you really think such a contract would have been prohibited by the Nebraska Amendment? If it had been, would it have really stood up? Not the amendment -- but the specific contract of organ donation, which any reasonable person can see is in no way "similar" to marriage, CU, or DP. (and an aside, are male/femal organs really that interchangeable? wouldn't a same-sex donation almost always be preferable?)

Seems to me a contract is just a contract. Whether or not a specific contract is too "similar" to SSM should be for a court to decide -- clearly the Amendment doesn't prohibit all contracts by members of the same-sex. But the court should rule on the contract in question, not a vague notion of potential unfairness.

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