As I tossed and turned each night this week, a thought kept coming back. What, exactly, constitutes a “right”?
We have passed legislation, called the “Voting Rights Act” which protects Americans’ right to vote from discrimination.Â
But is gay marriage a “RIGHT”? Is marriage a “RIGHT” at all? And who is to decide? What gay marriage activists always ignore is that “traditional marriage” is, in fact, a covenant between man, woman & God. So are gay activists saying only the Government has the power to provide, and therefore takeaway, “RIGHTS”?
The Founding Fathers would strongly disagree:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…
What about healthcare?  Do I have a “RIGHT” to smoke? Do I have a “RIGHT” to eat bad food? If, for example, healthcare is a “RIGHT” — then on the face of it, it cannot exist in the free market because “rights” have to be regulated/protected by the Government.
Too many people these days throw around the word “RIGHT” — and have absolutely no clue what they are talking about. In addition, “RIGHTS” are not free — they come with “RESPONSIBILITY”.  Again, not something the gay marriage activists wish to talk about.
There. Now you know what rolls around in my brain as the Ambien tries to win each night.
-Bruce (GayPatriot)
UPDATE (from Dan): Great minds think alike, but often with different styles. 🙂
I just caught this post (via Glenn) and intended to use it as a starting point from a piece on rights. Basically Professor Bainbridge notes how many of the things which contemporary liberals define as “rights” (he calls them “positive rights”) “cannot be achieved without limiting the liberty of individuals.”
“What gay marriage activists always ignore is that ‘traditional marriage’ is, in fact, a covenant between man, woman & God.”
Very true. Why then does the government feel the need to offer this sacred institution to its citizens in secular form, stripped of God with absolutely no spiritual foundation?
The left has a dangerous affinity for turning what they desire into a “right.” And then declaring that right to be absolute. I see this frequently when leftists argue for a “right” to health care, or an education, or housing, or clean air, or jobs. And the thing about these “rights” they are demanding is that they can only be fulfilled at the expense of other people. You can’t get health care unless a doctor is forced to provide it to you. You can’t get a house unless someone builds it for you. Unlike the enumerated rights of free speech, freedom to exercise religion, freedom to bear arms… the rights the left are demanding always come at the expense of some other person’s freedom.
In the care of gay marriage, that which must be taken away is all traditional cultural norms of marriage and family. The willingness of the Anti-Prop 8 side to embrace the complete abolition of marriage as an acceptable outcome is evidence of the real agenda at work here.
Just as socialism has never led to economic prosperity, no culture has ever survived the degree of self-absorption and narcissism in America today. The activists really don’t care what the consequences are for society, so long as they advance their self-centered agenda.
Bruce… I just agreed with something you wrote. Either my brain is rotting from coming here, or its the same principle that even a broken watch is right twice a day (you or me?). Not sure. Anyway… 🙂 I agree the word is tossed about far too frequently without thought as to what it means. Hence, the idea of “gay rights” is absurd. Underneath it, though, is a particular interpretation (or reinterpretation) of pre-existing rights, namely those of due process and equal protection. One may not have a right to marriage, but you do have a right to have the state apply its marriage laws equally. You may not have a right to sodomy, but you have a right against unreasonable search and seizure, right to privacy, and a right to expect any ban will be enforced equally. Those rights (due process and equal protection) get jumbled up and lost in the discussion of “gay rights” or “right to marry” or whatever. The sloppy use of the word “rights” definitely confuses the issue and I think distracts from the underlying merits.
Bruce, here’s where I tell you that you are quite correct to toss and turn at night on this question, for it goes to heart of why we have governments.
Those of us who value liberty wish to have the minimum state required to secure our universal rights. As such, there is no obvious conflict with an expansive definition of civil unions, which is merely a consistent regime of contract law defining relationships between consenting adults.
This definition, however, will both inform and reflect cultural attitudes about permissible social behavior. Gay marriage advocates are correct to point this out. But I think they get the causality fundamentally backwards.
They really are not seeking the LEGAL benefits of marriage, as various forms of civil unions can deliver that — or SHOULD be able to deliver that if state power is sufficiently constrained. They seek — and understandably so — the cultural and social standing associated with state-sanctioned marriage. But the state does not bestow this standing — nor should it in a free society.
In effect, they imagine civil society to be a product of the state when the reverse is true. And the prevailing political attitude that the state exists to shape and CORRECT civil society readily feeds a notion of grievance and wrong which can be righted by political action and failing that, judicial fiat.
As a result, it is meaningless to talk of responsibilities when the primary object of contention is not rights, but status. Or more precisely, it drops out a step. Rights > responsibilities > status is the natural rights, minimal state formulation. Almost without exception, however, backers of a maximum state — knowingly or not — compress that formula to Rights > status. And we’re not even getting into the social determinists who hold that ours is a corrupt society in which Status > rights.
Bottomline, when your head hits the pillow, be soothed by the fact that you stand with free men and women of goodwill and against all-too imperfect and clumsy state power as these issues play out.
Bruce, this all sounds very, very similar to an earlier post and resulting comments thread over at American Spectator last week where a group of us were talking about that very section of the Declaration and I noted that there’s no way to read it and not come to the conclusion that it is govt of men that is to protect/secure our rights –including those of life, liberty and the pursuit of happiness.
If society sees gay marriage as a “right”, then it is the obligation of govt to secure that right for gays. Be it the courts, the legislature or the executive.
Of course, most Americans in most elections –even in lovely uber-liberal California– don’t see gay marriage as a right. In fact, in some places the majority see it as wrong and have taken peremptory steps to fashion a “No Gay Marriage Here” amendment into their state constitution.
Back to the American Spectator discussion… the conservatives there thought this argument made perfect sense. But then a little later they were labeling me a Marxist, a socialist, a tax & spend liberal, a Democrat, Obama’s butt boy (hey, they must listen to RushBlow).
So, I didn’t care so much about the latter (how can one really get mad at well-intentioned but horribly misinformed conservatives)… as long as they bought into the former argument about gay marriage and the Declaration’s postive duty on govt to act to secure certain, inalienable rights.
Nice post. Good thinking.
What V the K said.
V the K’s comment reminded me of a terrific column that I read last year called “How common sense is lost in the endless battle over rights.” I’m glad I still have it bookmarked because it deals precisely with the definition of “rights” and I recommend it to everyone.
http://www.belfasttelegraph.co.uk/opinion/article13912028.ece?startindex=-1
The column makes the point that in a rights-dependent society (where every preference and desire of every individual is elevated to a “right”)–there are no rights. Just an “individualistic free-for-all” in which a court must have the final say. Great quote:
“liberal ideology is the first religion ever to trade solely in a variety of emotional responses, but no enduring certainties within. In other words, a moral marketplace, awash with a flux of competing dogmas. Who’s right in all this? No one’s right. No one can be ‘right’ when conflicting rights meet head-on in a rights-dependent culture.”
Of course, Ann Coulter addressed this issue a few years ago: “‘Constitutional right’ means ‘Whatever Liberals Want.'”
Thanks AE and Sean A, your checks are in the mail.
A right is something that you are morally entitled to, regardless of whether government recognizes it. Government does not create fundamental rights; fundamental rights pre-exist government. Government *recognizes* such rights, because any government that doesn’t recognize them is immoral and tyrannical. Example: The rights to life, liberty and property, which in turn require (or imply) rights to free thought and speech, self-defense, etc.
It depends. Marriage, in our society, has two components:
1) The commitment between the 2 people to put each other first, support and care for each other, etc.
2) A State license which recognizes and legally embodies their commitment, putting obligations on third parties (in some instances) to support it.
The first part is a right. Notice that it doesn’t necessarily involve the public. It resides in the freedom of action (i.e., the rights) of the two people involved. The second part is *NOT* a right. It is a privilege that society chooses to extend to those meeting certain qualifications. Such a thing can never be a right.
Everyone, and no one. What I’ve said above is objectively true, i.e., it is all “features of reality”. I didn’t get to “decide” it; I only get to discern it. Whether I discern it or not, doesn’t change the fact that it’s true. Same for others.
Listen to them, MM. Take a hint. You probably misrepresented some argument of theirs, or tried to name-drop on them, or said something about how great Big Government and “moderation” and the big-spending Ford Administration were/are 😉
Yeah. That’s what makes them, *not* rights, but the opposite: Actual wrongs. Actual oppression of other people. The Left’s genius at Orwellian doublespeak is astounding: they have taken actual wrongs, acts of tyranny and exploitation on others, and made them sound like “rights”.
Remember, ILC, “Ford on his worst day was better than Reagan on his best Day.” 😉
It’s very simple….if our government (federal, state, local) got out of the business of granting special rights, via laws, that go along with a marriage certificate, then this issue would go away. But, it won’t.
I have some friends who are partners who have lived in 2 different states in the time they’ve been together. They directed their lawyers to setup legal agreements giving each other the same legal rights they would have for each other as if they were a married couple. Luckily, they are financially well off, because the legal benefits that came with a marriage license (less than $100) cost them $50,000. Naturally, this can’t even include things like the ability to file income tax as spouses.
Rights don’t exist in nature, they were created by man as part of the ways we should be able to exist in society. So you know what? If our government is going to give rights to people, then they need to do it equally – like actually following the equal protection clauses of the constitution. Also, I notice in these discussions how you lob out things like John Kerry and Barack Obama saying they don’t believe in gay marriage, but you do leave out the fact that they recognize gay family units and relationships and support gay civil unions (ie, goverment issued licenses)
For all the freedom that conservatives seem to love to blather about, they sure seem hell bent on telling people what they can and can’t do.
#14: “I notice in these discussions how you lob out things like John Kerry and Barack Obama saying they don’t believe in gay marriage, but you do leave out the fact that they recognize gay family units and relationships and support gay civil unions (ie, goverment issued licenses)”
Well, Kevin, if it’s just fine that Kerry and Obama support gay civil unions (and don’t believe in gay marriage) then why isn’t that good enough for California?
I guess in other words, it’s enough that Barack Obama and John Kerry want to give Kevvie’s imaginary friends domestic partnerships, but its hateful and bigoted if any Republican does.
Bruce writes: “But is gay marriage a “RIGHTâ€? Is marriage a “RIGHT†at all? And who is to decide? What gay marriage activists always ignore is that “traditional marriage†is, in fact, a covenant between man, woman & God. So are gay activists saying only the Government has the power to provide, and therefore takeaway, “RIGHTSâ€?”
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Response:
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It is a given that the US Constitution is the highest law in the land — at least, this is a given for the purposes of discussing rights in non-religious contexts. All laws passed and enforced in the US must comport with the requirements of the US Constitution; when a law is found to violate the US Constitution, then the courts are empowered to declare such laws unconstitutional, and to enjoin their enforcement.
Rights flow from interpretations of the word “liberty” as this word is located in the Due Process Clauses of the Fifth and Fourteenth Amendments. Those jurists who do not accept the validity of the precept of substantive due process treat the Constitution as an entirely procedural document, failing to acknowledge that the law exists for a purpose, and that this purpose is as central and as significant to the powers of legislative bodies as are the procedures whereby the law is enforced.
Those jurists who do accept the precept of substantive due process acknowledge not just the how of the law, but also the why of the law. It is easy, when engaged in interpretation of a document as central to our experience as Americans, to get lost in arcane discussions — but we should always remember that the US Constitution was written for a purpose, and that that purpose was to realize the dreams and aspirations that animated the Declaration of Independence, and that continue to drive us today, in our ongoing search for freedom and independence.
Liberty is excruciatingly difficult to define — but our US Supreme Court recently elucidated this concept, in handing down Lawrence v. Texas, 539 U.S. 558 (2003), in the conclusion of the majority opinion. Writing for five members of the Court (A.J. Sandra Day O’Connor filed a separate opinion concurring in the judgment but arguing that an equal protection analysis would have been more appropriate), A.J. Anthony Kennedy acknowledged that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” [emphasis added]
Some rights are considered to be “fundamental” — up until recently, these rights were identified in terms of being “implicit in the concept of ordered liberty,” or being “deeply rooted in this Nation’s history and tradition”. However, the US Supreme Court recognized, in Lawrence, that this does not settle the matter; there exists an “emerging awareness” that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (see Lawrence, supra), and that “history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry”.
In short, rights are implicit in our ability to exercise our liberty interests without governmental interference.
Rights are also implicit in the assurance that the government must treat us in accordance with the principles of equal protection. This assurance is articulated in the text of the Equal Protection Clause of the Fourteenth Amendment, which guarantees that no state may “deny to any person within its jurisdiction the equal protection of the laws.” This guarantee is also made binding on the US government through operation of the equal protection component of the Fifth Amendment’s Due Process Clause, as discussed in Bolling v. Sharpe, 347 U.S. 497 (1954). As the Court so eloquently stated, the “concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”
It is thus clear that “rights” must be viewed in the light of the operation of both the Due Process Clauses (of the Fifth and Fourteenth Amendments) and the Equal Protection Clause of the Fourteenth Amendment (and its Fifth Amendment implied counterpart). Due process and equal protection are closely related, and both concepts must be acknowledged when discussing rights. As the Court noted in Lawrence, “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests”.
The gravamen of almost every equal protection challenge lies in the assertion that two groups of persons who are similarly situated in relation to the law in question are treated differently, with resultant adverse impact to members of one of the groups in question. Thus, the existence of a “right” is, at least in part, defined in terms of its exercise by a specific group of people.
When the government grants to a specific group of people privileges and benefits not granted to another group of people, principles of equal protection may be offended. We thus determine whether the law in question draws a suspect classification, and whether the law in question interferes with a “fundamental” right. If either of these conditions are met, the differential treatment must pass the strict scrutiny test. If neither condition is met, then the law is presumed to be constitutional and will be upheld provided it bears some rational relationship to a legitimate state interest. But the point is that a “right” can be created when the government grants privileges and benefits to members of a particular, identifiable group without granting the same privileges and benefits to members of another identifiable group — and that is the dynamic at work with respect to gay marriage.
(Note that state constitutions are frequently more generous, either by their terms or as construed by state high courts, than is the US Supreme Court with respect to the protections they afford to their citizens, and the rights that they protect.)
In short, there are rights to be free from government interference on the one hand, and rights to receive the benefits of government largesse on the other hand. The first category of rights is closely linked to the principle of due process of law, whereas the second category of rights is closely linked to the principle of the equal protection of the laws.
You argue that “traditional marriage” is a “covenant between man, woman, and God.” While I appreciate that you have every right to your religious beliefs, I vehemently protest any efforts to inscribe those beliefs into law and public policy. For the purposes of the law, marriage is both a civil and a spiritual contract; the law concerns itself only with the civil aspect, which is why so many people choose to get married in City Hall as opposed to in church.
I respectfully argue that the principles of due process and equal protection discussed above compel those states that offer marriage to heterosexual couples (all 50 of them) to offer marriage to gay couples too.
PHILIP CHANDLER
P.S. Try nitrazepam (Mogadon) or flurazepam (Dalmane) instead of zolpidem (Ambien)!
#16: Yes, V the K. By passing Prop. 8, California voters effectively told the gay left that they will not be entitled to same sex marriage. This necessarily implies that any state recognition of their relationships (and the rights that go with it) will be limited to the California DP law–which equates registered DPs with “spouses” under the law. If the California voters taking this position calls for rioting in the streets and nightly candle-light vigils, then why isn’t the same response warranted against Kerry and Obama for taking the same position?
No response from Kevin on this issue, naturally.
…For left-liberals who may believe such garbage as:
Morally, there are no group rights. None. Real rights (as opposed to leftist-created pseudo rights) are inherently individual. And – Largesse created and supplied by whom? Not by government. Government creates law and order; people create goods and values. Economically speaking, government creates nothing. People create; government takes.
If only liberals could remember that! The D of I talked about our fundamental rights (preceding government) to life, liberty and the pursuit of happiness, and how government tends to damage those (while also being instituted to protect them), so that we must be ever-vigilant against the growth of government. The U.S. Constitution, in its turn, implicitly recognized the vagueness of the “pursuit of happiness” part by changing it to the protection of “life, liberty and property”. If only left-liberals could recognize that the purpose of government (and the Constitution) is to protect those things for individuals absolutely, and that government must never trample them!
Sean A writes: “If the California voters taking this position calls for rioting in the streets and nightly candle-light vigils, then why isn’t the same response warranted against Kerry and Obama for taking the same position?”
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Response:
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For the simple reason that they gay community has been forced, repeatedly, to vote for the candidate who will do us the least damage. That is the way we have been treated for the past 40 years, since we first emerged as a coherent voting bloc.
I am fully aware of the fact that there are homophobic Democrats and that there are gay-supportive Republicans, but when Democrats are compared to Republicans — as a group and looking at trends — Republicans have consistently and repeatedly screwed us. I am also aware of the fact that there are homophobic liberals and gay-supportive conservatives (the late Barry Goldwater comes to mind immediately as an example of the latter), but when liberals are compared to conservatives — as a group and looking at trends — conservatives have consistently and repeatedly screwed us.
President Obama has promised to throw his full weight, as President, behind efforts to repeal the DOMA in its entirety — and I believe that he means it. In 2004 (long before he became a serious contender for the White House), he described the DOMA as “an abhorrent law”, and he accused those in Congress who supported and voted for the DOMA as “perpetuating division and affirming a wedge issue”. President Obama has also promised to do everything in his power to repeal the so-called “Don’t Ask, Don’t Tell” policy (more accurately known as “Lie and Hide”) that prevents openly gay people from serving in the armed forces. Contrast these positions with those of McCain and Palin, and it should be no surprise that the gay community consistently votes for the people so sneeringly referred to as “liberals”. President Obama most certainly does not take the same position (as the proponents of Proposition 8). Get your facts straight.
As for “rioting in the streets” — this is a patently offensive generalization, based on the fact that a total of seven (seven) people were arrested for disturbing the peace shortly after passage of Proposition 8 (police donned riot gear and went on a tactical alert). The overwhelming majority of people who took to the streets did so peacefully, in an exercise of their First Amendment rights. I wish to make it absolutely clear that I have no sympathy for rioters whatsoever, and believe that those gay people who did riot played straight into the hands of the hard right. But the overwhelming majority of people who demonstrated following passage of Proposition 8 did so peacefully and without breaking the law. Certainly, nightly candle-light vigils are a legitimate and legal form of political expression.
What is particularly sickening is the response of organizations such as the “American Family Association” (AFA). This organization (perhaps the ugliest of the hard right pressure groups) does everything in its power to attack the gay community, and has organized boycotts of businesses that have adopted gay-friendly policies (such as the extension of medical benefits to the spouses of gay employees, on equal terms with the extension of medical benefits to the spouses of heterosexual employees). After months of boycotting Ford, the AFA finally called off its boycott, claiming that it had pressured Ford into dropping its gay-friendly advertising and other policies (in fact, Ford had made no changes whatsoever, and emphasized this — but declaring victory and quitting can be an effective tool to extricate an organization from an untenable position). Yet this organization (and others such as the “Family Research Council” (FRC)) actually filed suit, seeking to have those who contributed $100.00 or more to the campaign to pass Proposition 8 exempted from campaign finance disclosure laws, due to the fact that these individuals and corporations were being targeted for boycotts by supporters of gay marriage! The hypocrisy on display here is stunningly overt — these people have harassed and badgered individuals and corporations that have adopted gay-friendly policies as a matter of course, but they now see fit to have themselves exempted from the very laws that they have used to prey upon others. (The court quite properly rejected their request.) Turnabout is fair play (notwithstanding the impassioned rant of the folks at http://www.constitutionallyright.com), and boycotts are entirely legal.
It is clear that this matter is far from settled. Reaction to the passage of Proposition 8 has continued, unabated by the passage of time, and organizations seeking equality for gay Americans have no intention of “making nice” with the Mormons, who had the unbridled audacity to call on the gay community for “healing” and “respect” following their flooding the State of California with almost four out of every five dollars contributed to the passage of Proposition 8.
We will be back in 2010 with a measure to restore gay marriage. If we fail in 2010, we will be back in 2012. If we fail in 2012, we will be back in 2014.
Eventually, we will win, and we will succeed in convincing the voters that gay marriage is warranted as a matter of basic fairness and common decency.
PHILIP CHANDLER
Sean A writes:
Morally, there are no group rights. None. Real rights (as opposed to leftist-created pseudo rights) are inherently individual.
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Response:
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When the government recognizes a group of people and then bestows upon members of that group of people benefits, privileges, and responsibilities that it refuses to bestow upon members of another group of people who are similarly situated to the first group in relation to the law (that benefits the one group but not the other), then the government may have violated the Equal Protection Clause of the Fourteenth Amendment (in the case of a state government), or the equal protection component of the Fifth Amendment’s Due Process Clause (in the case of the US government).
This is, as I mentioned, the gravamen of almost every equal protection challenge.
If the government creates a statutory system that confers upon a group of people privileges and benefits not conferred on other groups of people, then the potential for an equal protection violation exists.
The equal protection provisions of the US Constitution (and of state constitutions) articulate a right — the right to the equal protection of the laws. I do not refer to what the government has done “morally” — I refer to what the government has done as a matter of law.
Yes, rights belong to individuals. However, they are frequently only identified when a group of people is adversely impacted by legislation that classifies impermissibly. Hence, the identification by the California Supreme Court of the right of gay people to marry.
That is what I was trying to convey.
You have every right to disagree. But is it really necessary to become insulting and downright rude?
PHILIP CHANDLER
#20: “For the simple reason that they gay community has been forced, repeatedly, to vote for the candidate who will do us the least damage. That is the way we have been treated for the past 40 years, since we first emerged as a coherent voting bloc…as a group and looking at trends — conservatives have consistently and repeatedly screwed us.”
I can see how you have this view if (1) your party affiliation is determined solely through the narrow prism of whether candidate X’s agenda includes specific items promised to gays alone, and (2) you define “consistently and repeatedly screwed” as excluding the most brazen betrayals of the gay community that have actually occurred in recent memory. As for (1), you are clearly defining the “least damage” to mean the least damage to the sole issues of gay marriage, DADT and federal protection in the workplace. What I find most baffling is not that gays would decide to vote for the party that goes on the record in favor of the most “gay issues,” but that their allegiance to that party (Dem, obviously) doesn’t end there at all. Gay Democrats across the board embrace EVERY facet of the Democratic Party’s agenda. They don’t JUST vote Dem because that party makes the most promises related to gay marriage, etc. They are on board for ALL OF IT–anti-war, pro-abortion, pro-higher taxes, pro-Fairness Doctrine, pro-socialized medicine, anti-gun, pro-amnesty, and on and on and on. That’s what I don’t understand. The fiercest debates on this blog are not just about gay marriage–the same commenters on this blog condemning Prop. 8 will just as often write dissertations going TO THE MAT on Iraq, the economy and healthcare.
I get why the gay-specific issues tip the scale for most gay voters over to the Democratic side. But my questions is, when we get to the point where gays have everything they could possibly want–repeal of DADT, gay marriage (or comparable civil unions) in every state, and federal protection in the workplace (and we will be there very soon), what on Earth will the Democratic Party have left to offer gays then? Don’t you find it interesting (or dubious) that 75-80% of gays vote Democrat clearly because of the gay-specific issues, and virtually all of the same Democrat gays are also fiercely pro-abortion. Why is that? Why do 80% of gays vote Democrat for the gay issues, AND 99% of that same group are also vehemently against the Iraq War (some of whom routinely call for Bush, Rove and Cheney’s imprisonment on this blog). What’s the reason for the lack of any detectible diversity among Democratic gays on the non-gay-specific issues? Seriously, there are people on here that condemned any efforts made by the Bush Administration to reign in Iran’s nuclear ambitions. But now that Obama is in office, they ignore the issue completely. Meanwhile, even the UN is admitting that Iran’s about to get their nukes. This is an Islamic theocracy with a judiciary that routinely hangs gays in the public square in broad daylight. Ho hum. Whatever. (And when Bush was in office it was, “who are we to tell another sovereign country that they can or can’t have nuclear weapons?!”)
Most gays vote Democrat because of the “gay issues”–we get it. But the fact that they also march in lockstep with their party on every other issue exemplifies a strange and misguided strain of partisanship that makes absolutely no sense to me.
P.S. Don’t even get me started on the gays’ defense of the “stimulus” package–that will absolutely destroy the economy for everyone, gays included. Gays are more likely to be single, no children, career-oriented, high-earners–right there in the bracket that Obama plans to hit up for more taxes. Why aren’t the gays AT LEAST neutral on this issue? But no, the gay lefties on this blog have been defending it for weeks, defiantly claiming that there is no possibility of failure. Happy days are here again. What the fu*k happened to all the gays that want gay marriage but also like to blow cash on sports cars and Prada loafers?
I hate the filter. And it obviously decided to hate me too, a long time ago.
I am saddened by current indications that the California Supreme Court will uphold Proposition 8, and I frankly don’t understand how the Court can do this, given the law of the case.
In in re Marriage Cases, S147999 (2008), the court held that marriage is a “fundamental” right, and that gay persons comprise a “suspect class” for the purposes of equal protection analysis.
A suspect class is a group of people who share a history of invidious and purposeful discrimination, triggered by the expression of a characteristic that bears no relationship to the ability of members of that group to contribute to society; furthermore, the characteristic in question is either immutable, or changeable only at unacceptable personal cost to members of the group concerned, and the group can usually demonstrate a history of relative political powerlessness. The courts apply far greater weight to the first two factors than to the last two.
The US Supreme Court recognizes only four suspect classes — classes based on race, religion, national origin, and alienage.
When a law infringes the rights of a suspect class, the courts apply a standard of judicial review referred to as “strict scrutiny”. This is the most demanding level of judicial review; when a legislative enactment or executive policy is subjected to strict scrutiny, the usual presumption of constitutionality is turned on its head (ordinarily, a law is presumed to be constitutional until it is proved, beyond a reasonable doubt, to be unconstitutional).
When a law is subjected to strict scrutiny, the burden falls to the government to demonstrate that the law promotes a “compelling state interest” and that the law promotes that interest in the “least restrictive” manner possible; i.e., the law sweeps no more broadly than is absolutely necessary to promote the interest in question. In practice, very few statutes or policies survive strict scrutiny. Very few state interests qualify as “compelling” (an example may be national security), and in many cases where a state interest is compelling, the relevant law may sweep too broadly.
Fundamental right are rights of such significance as to be “implicit in the concept or ordered libertyâ€, or such that “neither liberty nor Justice would exist if they were sacrificedâ€. More recently, the US Supreme Court has recognized an “emerging awareness†that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex†(Lawrence v. Texas, 539 U.S. 558 (2003)). Any law that infringes on a fundamental right is also subjected to strict scrutiny when challenged in court.
In handing down in re Marriage Cases (supra), the California Supreme Court held that gay people comprise a suspect class, and that the right to marry is a fundamental right. This holding was not disturbed by Proposition 8; the courts, not legislative bodies, decide the manner in which they will adjudicate the constitutionality of laws implicated in cases brought before them. Proposition 8 therefore serves to withdraw a fundamental right from a suspect class. Proposition 8 alters the state constitution so as to deny gay people the right to marry. From a purely legal standpoint, Proposition 8 is no different from a measure intended to prevent Jewish people from publishing books, or to prevent Catholics from voting. Both of these measures would deprive a suspect class of a fundamental right. However, I have no doubt that the state high court would invalidate these hypothetical measures in a heartbeat. Yet current indications are that the court will uphold Proposition 8.
I fail to understand the legal theory on which the court will predicate its judgment (assuming that it does indeed uphold Proposition 8). Two constitutional provisions are now in conflict with each other, and it would seem to me that, under such circumstances, the court has an affirmative duty to decide which of these two provisions to uphold and which of them to strike. The court could have avoided this situation by tossing the issue back into the lap of the legislature, by holding that Proposition 8 should have been enacted pursuant to the state constitutional revision process, as opposed to the state constitutional amendment process (the former requires ratification by a supermajority of the state legislature, whereas the latter requires only a majority of the voters).
I await the decision with grim anticipation…
PHILIP CHANDLER
Actually, I didn’t write that quote regarding “group rights.” I wrote a longer response earlier, but it’s stuck in the filter.
Actually, I have some “inside” information about the Prop. 8 case that I thought would interest everyone. I’m a lawyer and have a case in which opposing counsel is an attorney from Gloria Allred’s firm. I guess she and one of her partners, Michael Moroko, gave the opening argument at the Prop. 8 hearing. Anyway, the lawyer that I deal with was heavily involved with preparing the briefs they submitted and attended the hearing with Allred and Moroko. When I spoke to him Friday afternoon about the case I have with him and he mentioned the hearing and told me that it “didn’t go very well” (which I had heard in passing from another gay lawyer at my firm who is closely following the case). He told me that his prediction is that the Court will (1) uphold Prop. 8 (I think he said he thought it would be a 5-2 decision), and (2) uphold the validity of the marriages that were entered into prior to the adoption of Prop. 8 (I think he said he expected a 7-0 decision).
Anyway, that’s what he told me, for what it’s worth.
I said:
Philip replied:
Philip, you have neither understood nor addressed what I said. I’ll try to give you a couple hints.
– You’re talking the current state of U.S. law. I’m talking morality and logic. They can be quite different.
– You’re also mixing apples and oranges. Just look at your phrase, “benefits, privileges and rights”. What a mess! I was talking about rights, period. Rights are different from privileges. Fundamental rights are morally and logically yours, whether or not government recognizes them; non-tyrannical, wise governments then proceed to recognize them, and protect them. Example: The right to self-defense in your home, recently dealt with in a SCOTUS decision as something logically prior to government, not as something that is granted or created by government. Privileges, by contrast, are something granted or created by government. We had an American Revolution to establish (among several other points) that privileges must be created or voted on democratically. A State license for something – be it driving, fishing, hunting, professional practice, a business document of incorporation, or a marriage license – is morally and logically a privilege; it is never a fundamental right. That means the People should be able to set the qualifications for getting it. Those meeting the qualifications become one group, and those excluded become another group (think of a Venn diagram). Also, the State may extend define and extend a privilege to individuals who qualify by forming themselves into a specific group: for example, John and Sally forming “the marriage of John and Sally”. Legally, the privileges and associated benefits of that new grouping may be treated as “rights”, but that’s a different use of the word. Thus, morally and logically, privileges can sometimes inhere in groups; rights never do. Real (that is, logically and morally valid and fundamental) rights derive from an individual’s right to life, liberty and property. We the People institute governments to protect them. To the extent that governments fail to do so, or even muddy the waters – say, by expropriating the “largesse” (property) of some of us to “redistribute” to others, as but one example – said governments are tyrannical.
Agreed. Because, this time, you said “privileges and benefits” (leaving rights out of it). But how exactly does it apply to marriage? A State marriage license is, again, a privilege that the People choose to extend to those meeting the qualifications. The People get to set the qualifications. The setting and measuring of qualifications is inherently discriminatory; the question is whether the discrimination is invidious. Because of the 14th Amendment (as interpreted correctly, in time, by the Loving decision), the qualifications can’t be racial – or more precisely, the presence of a racial difference in a couple can never be used as a disqualification. Racial discrimination is invidious. But Loving implicitly accepted other disqualifications, for example, excluding couples based on the parties’ age, prior kinship, bigamy or polygamy, mental incapacity, and – drumroll – lack of a gender difference between them. If I am talking about the state of U.S. law, now – as you seem to prefer – then yes, the People certainly get to require a gender difference in the couple as a qualification for the privilege of a State marriage license. That is stupid in my opinion, but under current U.S. constitutional jurisprudence, it is the People’s choice to make. Or take your case to SCOTUS, if you think it isn’t.
…cannot be applied blindly to privileges, which, again, inherently involve discrimination, i.e., the setting and measuring of qualifications.
Where?
At #20, I spoke of political left-liberals as a group, and I rejected their concept of group “rights” forcefully. I did so without assuming necessarily or absolutely that you were one of them, and with no rudeness. Your reaction, accusing me of having been rude to you, would seem to show that (1) you include yourself as a liberal, and (2) you find forceful objections to the views of liberals to be, per se, “rude”. Very interesting.
Fundamental right are rights of such significance as to be “implicit in the concept or ordered libertyâ€, or such that “neither liberty nor Justice would exist if they were sacrificedâ€.
Of course, if that is the case, then bans on polygamous, child, bestial, and other forms of marriage are violations of that so-called “fundamental right”.
Perhaps the justices can explain to us why, if marriage is a “fundamental right”, and “fundamental rights” cannot be denied to anyone, why they did not strike down every single marriage ban in California law.
I’m more concerned that the court is being given the power to say “We will tell you what ammendments you can make.”
you’re a braver guy than me – I’d never blog while on ambien. The ambien ALWAYS WINS!
The LA Times has a surprisingly good roundup of the recent Prop 8 hearings:
http://www.latimes.com/news/local/la-me-prop8-supreme-court6-2009mar06,0,7164365,full.story
“If you’re in the marriage business, do it equally,” he said. If same-sex couples cannot marry, “then straight couples don’t have that right either.” -Michael Maroko
Sounds like Attmay’s soul mate.
One thing amused me…
“The two sides spent a total of more than $80 million, the most ever for an initiative about a social issue.” What was the spending ratio again?
A statement that I agree with 100%. A State marriage license, again, *is not* a right. It is a privilege that the People choose to extend, to those meeting whatever qualifications the People have chosen to vote in. That goes for straight couples as well as gay ones: it’s a privilege for them also, that the People could vote out if the People wanted to.
oh I agree ILC, it’s not a right. But his arguement was “Well if they can’t have it, no one should!”
That’s a 6 year old arguing in front of the surpreme court of CA.
17: Seriously: do you live in a little hut writing letters with words cut out of magazines?
Kevin, who do you think V the K is?
Bill Ayers?
Yes, marriage is a right. See: Loving v Virginia.
*sigh* It’s sad to have to explain this to another gay person. At least do some research before you regurgitate anti-gay talking points.
#35: Typical. Kevin is asked a legitimate question based on his own statements (#16), and to avoid answering it, he equates V the K with the Unibomber. That’s okay, Kevin. We hear your answer loud and clear. You’re a hypocrite who praises Kerry and Obama for their support of civil unions (and NOT same sex marriage), and condemns California voters as bigoted, hateful monsters for having the exact same opinion.
Yes, marriage is a right. See: Loving v Virginia.
Also see Baker v. Nelson, in which the same Supreme Court that decided Loving ruled that bans on gay marriage were perfectly OK and not a violation of a “fundamental right”.
Indeed, the fact that the Supreme Court has not struck down bans on incestuous marriage, plural marriage, child marriage, bestial marriage, and whatever other odd combinations one can think of shows that marriage is in no way a “fundamental right”.
Bruce has a point that the government is not the exclusive source of rights, and marriage is much more religious that secular. However, if the government is in the business of giving out marriage licenses, it should do so fairly and equally, and that should extend to gay couples.
One of the commentors also suggested that the true aim of the gay community is the elimination of marriage altogether. (It’s not, by the way.) As far as a government “right,” I have no problem with the government getting out of the marriage business, and religious institutions should not have a problem with that either. What would the chruches do if the government suddenly decided to regulate who could or could not be baptized? How about regulating who could become pastors, rabbis or priests? They would be up in arms, and rightfully so. How about just civil unions for all couples from the government, regardless of gender, and then marriage is left to the religious community?
Jeff,
1) Any single man can marry any single woman, and have that union recognized by the state. How does that discriminate against individuals?
2) That’s not me saying it, it’s the lawyer arguing the case before the California Supreme Court it may not be the ‘goal’ but it apparently is acceptable loss.
D’oh!
Addendum to 1 above based on qualifications determined by the state
Any single man can marry any single woman, and have that union recognized by the state. How does that discriminate against individuals?
Because a single woman (unlike a single man) cannot marry any single woman. Further, a married person cannot marry any single woman (unless that person is a man, and has his marriage terminated). And it also discriminates against children and close relatives to a single woman. Of course, the question is, which group of persons should be discriminated against and not allowed to marry any single woman?
Bruce — two posts (admittedly lengthy — one is a post in which I introduce myself, and the other is a discourse on marriage as a fundamental right) appear to be bogged down in your filter. I would be most grateful if you would post them, or contact me should they not be visible to you.
Thank you,
PHILIP CHANDLER
I tried breaking one comment in half and posting the first half, but it was also blocked by the filter.
PHILIP CHANDLER
Pat, thus my addendum.
38: I think my point is clear….in a place that is allegedly available for people to post thoughts on the topics, posters like VtheK (and a few others) regularly, and without fail digress to personal attacks, name-calling, etc. Supposedly, the owners of this site have some kind of standards, but if they really did have standards, they would stop the posts that simply engage in name-calling. Of course, the owners here have started a number of their posts that also engage in name-calling.