J.D. Hayworth Embarrasses Himself with Marriage Comment
If J.D. Hayworth weren’t such a pontificating blowhard, I might be more sympathetic of his campaign for the U.S. Senate.
Now, I certainly agree with him that it’s not for courts to define marriage and that while intimacy is a major part of a serious marriage, it is not its defining aspect. So, now, we’ve got him saying that if state courts deciding marriage, it could lead to people marrying their horses:
Hayworth, during an interview with an Orlando, Fla., radio station explained: “You see, the Massachusetts Supreme Court, when it started this move toward same-sex marriage, actually defined marriage — now get this — it defined marriage as simply, ‘the establishment of intimacy.’”
“Now how dangerous is that?” asked Hayworth, who is challenging Sen. John McCain from the right in Arizona’s GOP Senate primary.
“I mean, I don’t mean to be absurd about it, but I guess I can make the point of absurdity with an absurd point,” he continued. “I guess that would mean if you really had affection for your horse, I guess you could marry your horse.”
Yeah, I know what he’s getting at. Trying to show the slippery slop onto which such court decisions put us. So, why not simply remove marriage from the jurisdiction of courts and make it instead (as it should be) the province of legislatures? Instead, he wants the constitution to define marriage via a federal marriage amendment.
This pompous man’s pontificating shows he’s more interesting in getting attention than making a serious argument on a serious issue. If he were serious about the slippery slope, he would favor a less draconian solution than the federal marriage amendment he backs.
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So, why not simply remove marriage from the jurisdiction of courts and make it instead (as it should be) the province of legislatures? Instead, he wants the constitution to define marriage via a federal marriage amendment.
Well, let’s take a look at the text of the FMA.
Marriage in the United States shall consist solely of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
The key words there are “construed to require”. It doesn’t say that a law that does grant the legal incidents is unconstitutional; it simply states that there’s no guarantee of same-sex (or any other combination other than one man-one woman) marriage in the Constitution, or that the other states have to recognize it.
In short, it does exactly what you want, which is to make it clear that redefining marriage is beyond the power of the judiciary and lies squarely with the legislative power.
Comment by North Dallas Thirty — March 15, 2010 @ 4:15 pm - March 15, 2010
Huh? I agree that Hayworth is a blowhard, but I dont follow your logic that serious belief in the danger of a slippery-slope means opposing a federal marriage amendment.
When courts are out of control there are few checks available:
1. impeachment of judges, which never happens,
2. a Constitutional amendment, and
3. taking jurisdiction away from lower courts, which you mentioned, but Congress cannot take jurisdiction away from the Supreme Court, and this remedy seems the least desirable. It accomplishes virtually the same end as amending the Constitution except without the higher threshold of 2/3 of both houses and 3/4 of the states.
A precedent that undermines our system of checks and balances.
A Constitutional amendment or impeachment are the better remedies to activist courts.
Comment by American Elephant — March 15, 2010 @ 4:21 pm - March 15, 2010
So, why not a constitutional amendment saying the only state legislatures can define marriage in their respective jurisdictions?
Comment by B. Daniel Blatt — March 15, 2010 @ 4:24 pm - March 15, 2010
Because the vast majority of politicians either in or currently running for office who talk about a constitutional amendment on this issue are only interested in an amendment in so far as it blocks same-sex marriage. Leaving a loophole like that would make it pointless to them, because they know full well that state legislatures will vote in favour of same-sex marriage down the line, so they need to take power away from them too.
You may say that this is going to change, that after 2010 or 2012 there will be politicians in office who are interested in giving power back to the people. I say I’ll believe that when I see it.
Comment by Serenity — March 15, 2010 @ 4:47 pm - March 15, 2010
Well, one would think that was made clear by the separation of powers to begin with. But what precedent does that set if we amend the Constitution to establish that courts may not redefine marriage.
Doesn’t that imply and thus support the idea that they MAY redefine everything else?
Which is, of course, not the proper role of the courts.
Comment by American Elephant — March 15, 2010 @ 5:55 pm - March 15, 2010
2: Actually, there still remains an untested area of Art III, Sect 2 that Congress could try if it ever chose to:
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Such a move would provide a very interesting constitutional clash with no clear avenue for resolution. Yet until that is tried and succeeds, all that remains are the options you list.
Comment by John — March 15, 2010 @ 7:02 pm - March 15, 2010
Which for the forseeable future has about as much a chance of being adopted as the Balanced Budget Amendment does.
In short, it does exactly what you want, which is to make it clear that redefining marriage is beyond the power of the judiciary and lies squarely with the legislative power.
Along with abridging the Full Faith & Credit Clause as well as the Equal Protection Clause of course, not mention the principle of Federalism in the very first sentence. Ironic.
Comment by John — March 15, 2010 @ 7:05 pm - March 15, 2010
3: Such would never pass but you can add to the 10,000+ attempts to amend the Constitution which have failed if you like.
Comment by John — March 15, 2010 @ 7:07 pm - March 15, 2010
I don’t think the text you quote means what you think it means. If I follow you correctly, you believe that passage authorizes Congress to limit the Supreme Court’s jurisdiction, but I think what it does is establishes that the Supreme Court’s role is as an appellate court, not as the finders of fact. Their jurisdiction, however, is still clearly spelled out as extending to ALL cases, and any attempt to limit it would be struck down by the Supreme Court as unconstitutional.
What that clause means is that if Congress wants to, it can give the Supreme Court the ADDITIONAL role of fact-finding not that it can take away jurisdiction.
Comment by American Elephant — March 15, 2010 @ 7:24 pm - March 15, 2010
9: That would probably be SCOTUS’ ruling in the matter should such an attempt be made. I suspect such would prevail too since Congress rarely has the stones to even pick a fight with SCOTUS, let alone go all the way to the mat with it. Still, it would be a very interesting clash and I like it when the 3 branches fight. Such tends to shake things up a bit.
Comment by John — March 15, 2010 @ 7:44 pm - March 15, 2010
Can you really guarantee that some court, somewhere, won’t divine a right to inter-species marriage?
Given what we’ve seen over the last few years, what was once thought absurd and impossible is becoming mainstream.
If I were an AZ voter, I don’t think I could pull the lever for McCain… I’d have to hold my nose and vote for JD.
Comment by SoCalRobert — March 15, 2010 @ 8:22 pm - March 15, 2010
SoCal,if I were an Arizona voter, I know I couldn’t pull the lever for JD.
Comment by B. Daniel Blatt — March 15, 2010 @ 8:37 pm - March 15, 2010
J.D. Hayworth made an absurd statement that nevertheless exposes a real danger. As SoCalRobert so aptly put it, “…what was once thought absurd and impossible is becoming mainstream”. EXACTLY!!! And that’s the truth that proponents of SSM refuse to acknowledge. Forty or even a mere twenty years ago gay marriage would’ve sounded absurd and impossible to most Americans. Few, if any Americans back then, could’ve envisioned a time in their own life time when believing that marriage is between a man and a woman would get you branded a Nazi, a fascist, and all around hater. BUT THAT’S EXACTLY THE WORLD WE NOW LIVE IN, thanks to gay agitators and their straight enablers. So how can anyone say that the slippery slope, which people like you B. Daniel constantly mock, is so farfetched?
Comment by Seane-Anna — March 15, 2010 @ 9:20 pm - March 15, 2010
Funny you should say that SA because 40 years a sizeable majority of Americans found interracial marriage to be “absurd and impossible”. Indeed, Gallup couldn’t find a majority in favor of interracial marriage until 1994 – 27 years after the landmark Loving v. Virginia ruling striking down anti-miscenegation laws.
http://www.gallup.com/poll/28417/most-americans-approve-interracial-marriages.aspx
In order for bans on inter-species marriage (which I assume you mean between humans and non-sapient creatures since we’ve yet to find E.T.’s and mate with them) to be found unconstitutional the sapience of both parties would have to be established. Such is a basic requirement in contractual arrangements. Then of course comes the ability to freely give consent, a hurdle unto itself.
Comment by John — March 15, 2010 @ 9:47 pm - March 15, 2010
A good point. This seems to happen to people when they go into politics.
Perhaps. The problem is that we are dealing here with judicial activism, and any attempt to attack that will be seen as draconian by many.
As for Hayworth embarrassing himself, his horse-marriage example as an attempt to illustrate absurdity by being absurd is far less embarrassing than a court defining marriage as “the establishment of intimacy.”
Comment by Classical Liberal Dave — March 15, 2010 @ 10:26 pm - March 15, 2010
Average Gay Joe on the FMA (@ 7):
This, I’m afraid, is nonsense.
The issue of same-sex marriage (or civil union, etc.) vs. opposite-sex marriage has no equal protection clause implications. That clause is about arbitrary distinctions made between individuals; it is not about different sorts of relationships, institutions, etc.
As for the full faith and credit clause… (how many times do I have to repeat this on the Web?!)
That clause, in full:
When people who favor same-sex marriage mention the full faith & credit clause, they typically ignore its second sentence (which I have put in bold).
Even given Congress’ power in this matter, the meaning of full faith and credit cannot be changed. Giving full faith and credit to another state’s public acts does not mean that a state becomes thereby bound by the other state’s laws. Each state is a sovereign entity independent of the others. So by recognizing that someone is licensed for such-and-such in state A does not in any way alter state B’s laws on that activity.
Comment by Classical Liberal Dave — March 15, 2010 @ 10:43 pm - March 15, 2010
Ah, John! You bring up the interracial marriage canard. Ok, let me address it. Removing the ban on interracial marriage in NO WAY redefined marriage. Marriage was still understood to be a one man/one woman arrangement. Lifting the ban on interracial marriage was about which MAN could marry which WOMAN; it was NOT about altering the very understanding of marriage itself as legalizing gay “marriage” would do. Understand the difference, Jean?
Comment by Seane-Anna — March 15, 2010 @ 11:00 pm - March 15, 2010
And John, falling back on the interracial marriage canard doesn’t answer the question of just how gays are going to stop the steamroller of change once homosexual nuptials are legalized. Just what is the mysterious stopping mechanism that’s supposed to spring into action right after gays get the marriage franchise, ensuring that no more expansion–to use B. Daniel’s word–of holy matrimony will take place?
Comment by Seane-Anna — March 15, 2010 @ 11:07 pm - March 15, 2010
I tell you those damn activist judges. They really have some nerve. I tell you those evil judges allowing colored people to have equal rights. To go to school with white kids. And again those damn activists judges allowing blacks and whites to marry. Yep they suck.
Comment by Tim W — March 15, 2010 @ 11:08 pm - March 15, 2010
Before mouthing off, Tim W, about activist judges, try to understand the difference between violations of the plain meaning of the constitution and twisting its meaning far beyond the intentions of those who wrote it and its various amendments.
Comment by B. Daniel Blatt — March 15, 2010 @ 11:56 pm - March 15, 2010
gee dan, before posting a condescending response about the vacuous term “judicial activism,” try to explain why it took almost 100 years for the supreme court to overturn bans on interracial marriage based on the equal protection clause, especially since you seem to think its mean is so plain and obvious.
Comment by Chad — March 16, 2010 @ 12:38 am - March 16, 2010
What a c-f this thread is – and must be. The MA court may possibly have done something stupid, if they didn’t adequately define their terms. But didn’t they? It would seem clear, reading their decision in context, that they were talking about *people* being intimate. Thus, Hayworth and his supporters have done something even more stupid (taking the Court’s words out of context). Then noted homophobe Seane-Anna jumps in to try and lecture John, while Tim W raises canards in a lame/tired effort to be clever. Good grief. I could answer a lot of the points here but I don’t foresee this thread going someplace good.
Comment by ILoveCapitalism — March 16, 2010 @ 2:27 am - March 16, 2010
At least Mr. Hayworth could’ve used a little more imagination with his statement. That old marrying horses line dates back to at least the mid-70s. Unfortunately, Mr. Hayworth has foot-in-mouth disease. Several more bloopers are waiting in the wings. And don’t think his ties with Mr. Abramoff won’t surface during this campaign.
Comment by Jim Michaud — March 16, 2010 @ 2:33 am - March 16, 2010
because Chad, judicial activism is not a vacuous term. And the Supremes also in Plessy went against the plain meaning of the 14th amendment. So, maybe had the court done it job sooner, we wouldn’t have needed wait those 100 years.
Comment by B. Daniel Blatt — March 16, 2010 @ 2:46 am - March 16, 2010
I tell you those damn activist judges. They really have some nerve. I tell you those evil judges allowing colored people to have equal rights. To go to school with white kids. And again those damn activists judges allowing blacks and whites to marry. Yep they suck.
Well, Tim W, your rhetoric makes sense, given how you and your fellow liberals like Evan Hurst really feel about black people.
So tell us, why do you bring up interracial anything when you and your fellow liberal gays are screaming at black people and calling them “n*****s” for exercising their right to vote? It’s more than obvious that you think the only rights black people should have are the ones to worship your presence and do whatever their white massas tell them.
Comment by North Dallas Thirty — March 16, 2010 @ 3:01 am - March 16, 2010
Not to mention… the simple fact that all those cases did was enforce the plain language of the 13th-15th ammendments. Might be nice for our lib posters to realize that.
As to J.D. Hayworth’s comments. He’s an idiot. If he wants to argue the MA court’s stupidity of ‘the establishment of intimacy’ then just point out it’s the ultimate intrusion into the privacy of the home.
Government official: Do you love your partner? May we watch?
Feh. The Government determining intimacy.
Comment by The_Livewire — March 16, 2010 @ 6:47 am - March 16, 2010
As many times as you like, but such will not strike out the Equal Protection Clause of the 14th Amendment. Sorry if it bothers you in this case, but the two go hand-in-hand.
Except such state sovereignty is incapable of trumping our rights guaranteed by the US Constitution. Why are marriages by first cousins not performed in some states still considered to be valid in that state if they are performed in another state where they are allowed? Full Faith & Credit Clause.
Comment by John — March 16, 2010 @ 7:18 am - March 16, 2010
How marriage is defined by religious institutions or popular belief is irrelevant since the Constitution makes no such distinctions. Government has no mandate to be involved in marriage but once it chooses to be it cannot deny equal access to everyone without a very compelling reason. Telling me that this is how we define marriage, or that this is how we supposedly have always defined marriage, or our religious beliefs largely favor marriage in a certain manner, etc., is all very interesting but essentially meaningless.
Comment by John — March 16, 2010 @ 7:23 am - March 16, 2010
You mean like the 14th Amendment and Loving v. Virginia, Dan? Nowhere has anyone produced evidence that the original meaning of the 14th Amendment prohibits bans on interracial marriage. Nothing. Zilch. Zip. Nada. And so on and NDT likes to put it. Yet lo and behold, SCOTUS found such bans to violations of the Equal Protection Clause of the 14th Amendment with the government’s reasons against such marriages to be not very compelling at all. Was this a ruling by so-called judicial activists or proper judicial review? Why?
Comment by John — March 16, 2010 @ 7:28 am - March 16, 2010
And you base this on what, exactly? An understanding of the 14th Amendment that was definitely not in the meanstream at this amendment’s adoption nor can you show was the author’s intent? No. You are basing this upon an understanding of the Equal Protection Clause that slowly became mainstream post-Plessy and arguably was still highly controversial at the time of the Board ruling decades later. Yet somehow, God knoweth how, you claim the segregation “clearly” violates Equal Protection. Yeah. While eviscerating the generally-held conservative philosophy of strict constructionism. In Plessy SCOTUS was clearly in keeping with the mainstream understanding of the 14th Amendment at that time – you know, the actual time in which said amendment was drafted and adopted. The court “did its job” in Plessy, you just don’t like the outcome (understandably so) but fail to remain consistent in your reasoning when it comes to the later Board decision.
Comment by John — March 16, 2010 @ 7:37 am - March 16, 2010
If you are speaking of Evan Hurst with TWO, I’m not a fan of his but I fail to see the connection on the link you provided. Are you saying he made some disparaging remarks post-Prop 8? I didn’t see that there but I suppose I could be missing it.
Comment by John — March 16, 2010 @ 7:42 am - March 16, 2010
Not just libs, try libertarians and Ted Olson conservatives too. While I have no problems with your argument here, such reasoning fails when we employ strict constructionism. Neither segregation or anti-miscenegation laws are “clearly” prohibited by any of these amendments nor can you show that the original intent of the authors of these amendments had such in mind. Hence why you have rulings like the Plessy decision. Such understanding developed later on and you anachronistically inserting it into an earlier era.
Comment by John — March 16, 2010 @ 7:46 am - March 16, 2010
NDF,
There you go again with your obsession with me. It’s kind of unhealthy. And now you are projecting fantasies about me where I made comments about African Americans and how they voted. How sweet my own little stalker with his delusional beliefs about me.
I have never made comments about how people voted so not sure where that came from.
John,
Thank you for making some great arguments. When it comes to the end of the day they truly believe that Loving vs. Virginia was judicial activism. They just won’t say it. Same with Plessy or for that matter Brown v. Board of Education.
Comment by Tim W — March 16, 2010 @ 8:58 am - March 16, 2010
26: Except Hayworth is wrong as the MA Court did not say anything about an “etablishment of intimacy”. As Allahpundit notes on Hot Air, this is the only part where the word “intimacy” is even found in the MA Court’s ruling:
That’s very different from what Hayworth claimed. Now since the MA Court’s ultimate decision was grounded upon the MA Constitution and MA legal precedent I haven’t a clue as a non-MA’er whether such was reasonable or not since I am not at all familiar with either of those.
Comment by John — March 16, 2010 @ 9:19 am - March 16, 2010
Was this a ruling by so-called judicial activists or proper judicial review? Why?
Clearly, it was judicial activism, because marriage is not a constitutional right guaranteed to everyone by any stretch of the imagination.
That being said, the temper of the American people was clearly that, while some people may not have liked it, they didn’t dislike it enough to put the effort into countering it.
And that’s fine. The electorate has the ultimate power to overrule the courts and clarify exactly what the Constitution means. If it chooses not to do so, it’s essentially delegating its power, which it has the right to do.
The thing that you seem not to get, John, is that the courts are not the ultimate authority in our system. The voters are, and their right to vote on, amend, and change their own fundamental law is not to be abrogated under any circumstances. You continue trying to do so because you fail to convince voters — and instead of looking at your message and why you fail to convince voters, you attempt to rule by fiat. Voters have had it with activist judges who make up things out of whole cloth, i.e. the Kelo decision, out of the need to please their statist liberal friends, and have rediscovered that they have the right to tell the courts exactly what the answer is in regards to fundamental law.
Comment by North Dallas Thirty — March 16, 2010 @ 11:46 am - March 16, 2010
I said Equal Protection, not some guarantee of a benny to everyone. Get your facts straight before replying, otherwise don’t bother. So again, is it a violation of the Equal Protection Clause to prohibit persons of different races access to civil marriage?
Comment by John — March 16, 2010 @ 12:17 pm - March 16, 2010
So again, is it a violation of the Equal Protection Clause to prohibit persons of different races access to civil marriage?
The current interpretation by the Supreme Court is yes.
My personal belief is yes.
Do I think the court did it right? No; their language about marriage being a “fundamental right” is horrendous and incorrect, since by definition fundamental rights should not be denied to anyone.
You mean like abortion and Roe v. Wade or Kelo as you bring up?
Absolutely. These are controversial decisions, and there were strong legislative and electoral responses to them.
You keep forgetting that we have courts for a reason and when our personal rights are violated or denied and we cannot obtain redress by the legislature that’s where they decide the matter.
Wrong. The matter is ultimately decided at the ballot box. The courts are the proxies of the public, not their overlords.
Comment by North Dallas Thirty — March 16, 2010 @ 12:39 pm - March 16, 2010
While I happen to share this belief myself, the reasoning you have given thus far necessitates the question: On what grounds? Certainly not by the intent of the authors of the 14th Amendment or from anything actually in the text itself.
None of which negates the fact that both Roe and Kelo remain the supreme law of the land – contrary to what arguably a majority of the people desire in these cases.
Name for me a Supreme Court ruling that was overturned at the ballot box.
Comment by John — March 16, 2010 @ 1:54 pm - March 16, 2010
That sets up a bit of a straw man, since NDT’s language was rather that these matters are “ultimately decided” at the ballot box.
Following NDT’s language, it’s easy to name one: Dred Scott. (Overturned by the 14th Amendment in 1868, which in turn was “ultimately decided at the ballot box” in that it was passed by State and Federal legislators who had been elected in 1864-66 in large part because they were Republicans who would pass it.)
Comment by ILoveCapitalism — March 16, 2010 @ 2:18 pm - March 16, 2010
(i.e., the Civil War notwithstanding, the matter was ultimately decided at the ballot box)
Comment by ILoveCapitalism — March 16, 2010 @ 2:18 pm - March 16, 2010
In the world of political correct thought and outrageous attacks by Liberals towards Conservatives, what J.D. Hayworth said is actually quite refreshing and necessary. Besides, it is totally consistent with the slippery slope of the law.
Same-sex marriage “is” very absurb to me. IT’s almost the same as…. what J.D. Hayworth said.
Comment by anon2273892 — March 16, 2010 @ 2:54 pm - March 16, 2010
Then perhaps NDT should clarify his meaning because by his use of such language repeatedly it did seem like that was precisely what he intended to say.
Hmm…intriguing argument, although a bit different from what NDT seemed to be arguing about acts of legislation . I’ve repeatedly said that the People are always free to amend the Constitution as outlined in Article V in order to invalidate any ruling by SCOTUS. Good example nonetheless.
Comment by John — March 16, 2010 @ 3:19 pm - March 16, 2010