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Judge Walker: Clueless about the “Historical Core” of Marriage

Posted by B. Daniel Blatt at 12:28 pm - August 5, 2010.
Filed under: Constitutional Issues,Gay Marriage

While Judge Walker is right about one thing in his discussion of marriage, but dead-wrong about another:

Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. . . . Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

“Miscegenation” laws prohibiting marriages between individuals of different races were a statutory invention.  The historical (as well as literary, see, e.g., Othello) record is full of such marriages.

Sex difference, however, has always been at the core of the definition of marriage  – long before governments recognized such unions.  If you don’t believe me, I suggest you study the marriage rituals of any culture; you’ll find that each treats the bride and groom differently.

Or, look at the cultures which have recognized same-sex unions.  They either called them something other than marriage or required that one spouse live in the guise of the opposite sex — at a time when sexual roles were far more stratified that they are today.  In Native American cultures (called either berdache or Two-Spirit), that meant that in male-male unions partner not only had to dress like a woman, but perform or social roles as well.

With his opinion, one federal judge both demonstrates a cluelessness about the history of marriage and a determination to remove one of its defining aspects from its legal meaning.

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57 Comments

  1. I thought this was the most hilarious part of the ruling.

    I mean, seriously? This guy believes that “changing roles” negates gender? My brother-in-law is a stay-at-home dad, but that didn’t magically mean he was the one carrying the babies.

    Furthermore, how is recognizing the fact that there are differences between males and females destroying the “union of equals”? Does the ban on blind people receiving driver’s licenses mean that they are “unequal” and that this should be struck down under the Fourteenth Amendment?

    The core of Walker’s attempt at argument appears to be that, because the states don’t codify procreation as a requirement for marriage, that procreation is completely and totally irrelevant to marriage.

    What that ignores completely is the fact that the only way to fully enjoy and access the benefits of marriage is to have children. Furthermore, it ignores bans on different types of marriage, such as plural and incestuous, that specifically refer to and speak of the necessity of the marital structure and the people involved in it being a specific way to avoid potential harm to the children that could be produced by a union.

    Comment by North Dallas Thirty — August 5, 2010 @ 12:41 pm - August 5, 2010

  2. The French once had a ‘Statement of Brotherhood’ or a similar name. However, I think – but could be wrong – it wasn’t a legalization of gay marriage, per se, but rather an answer to a question considered much more important: With a lack of heir from the resultant union, who inherited the property?

    Comment by Adriane — August 5, 2010 @ 12:45 pm - August 5, 2010

  3. I think he is trying to say that there has always been some presumption of role equality (if not role interchangeability) in marriages here.

    YMMV.

    Comment by celticdragonchick — August 5, 2010 @ 1:27 pm - August 5, 2010

  4. you forget that 14th amendment speaks of “equal protection of the law”.A properly asked question about equal protection can’t be eliminated by history,or by lack of history. see united states v. virginia

    Comment by volpi — August 5, 2010 @ 1:48 pm - August 5, 2010

  5. And anglo-american constitutional law about same-sex marriage can’t forget the long history of legal discrimination under buggery act and subsequent laws.Blackstone never heard of two spirit person,but he analized sodomy laws with care. past Discrimination should be analized under higher scrutiny. I repeat my analysis on older female,constitutionally sterile,that confutes the “scope of marriage ” argument

    Comment by volpi — August 5, 2010 @ 1:56 pm - August 5, 2010

  6. If gender roles have changed, could someone please show me the men who have taken on the role of gestator? breastfeeder? mother?

    We are told that gays can raise children just as well as heterosexuals because they can go outside their relationship to provide positive opposite sex role role models, but that rather negates their claim that gay unions are equal because straight couples dont HAVE to go outside their relationships.

    Comment by American Elephant — August 5, 2010 @ 1:57 pm - August 5, 2010

  7. I repeat my analysis on older female,constitutionally sterile,that confutes the “scope of marriage ” argument.

    Argument to exceptions, volpi.

    Based on that, I can argue for the repeal of laws preventing child marriage because, although the vast and overwhelming majority of children are not capable of consent, the damage of inconveniencing the few who are outweighs the majority.

    Furthermore, opposite-sex couples may or may not be fertile, and those who are not are usually in that state due to no conscious choice or action on their part. However, under no circumstances can same-sex couples be fertile, regardless of their choice in the matter.

    Comment by North Dallas Thirty — August 5, 2010 @ 2:16 pm - August 5, 2010

  8. If you really want to find the origin of marriage it is not even the union of man and woman. It is the union of two families between their opposite sex children and in many cases the latter had no say in the matter. THe important thing is that marriage has changed or evolved with time so it’s initial conception centuries ago is irrelevant.

    Comment by MDuran — August 5, 2010 @ 2:23 pm - August 5, 2010

  9. Um, MDuran, what’s your source for that? If you studied the history of marriage, you’ll realize just how wrong you are.

    Comment by B. Daniel Blatt — August 5, 2010 @ 2:27 pm - August 5, 2010

  10. With his opinion, one federal judge both demonstrates a cluelessness about the history of marriage and a determination to remove one of its defining aspects from its legal meaning.

    Not to mention contempt for the people and the Constitution of the United States.

    Comment by American Elephant — August 5, 2010 @ 3:24 pm - August 5, 2010

  11. If you really want to find the origin of marriage it is not even the union of man and woman

    Can we please stop all this CRAP about the “origins of marriage”? They are utterly irrelevant. This is the United States of America and the ONLY definition of marriage that matters are the ones crafted by the elected representatives of the people and those representatives have spoken and reiterated the definition and the reasons. Thats that. That is how we do things in the United States.

    THe important thing is that marriage has changed or evolved with time so it’s initial conception centuries ago is irrelevant.

    No, the important thing is that in the United States our Constitution demands that the ONLY time the definition of institutions change is when the people change them through their duly elected representatives legislative branch.

    ANY other kind of change is tyranny.

    Comment by American Elephant — August 5, 2010 @ 3:32 pm - August 5, 2010

  12. .I can not imagine a law that declare an underage person able of consent.it would be a major problem of psicology at least for persons close to the consent age. a law banning marriage for women above 58 years would be very simple and could save state money for procreative marriages.Pass such law and same-sex marriage could become incostitent with the definition of marriage

    Comment by volpi — August 5, 2010 @ 3:33 pm - August 5, 2010

  13. NDT, can you explain this statement a little more?

    What that ignores completely is the fact that the only way to fully enjoy and access the benefits of marriage is to have children.

    Why are children necessary to fully enjoy and access the benefits? I completely understand and do not generally disagree with the arguments that stable child-rearing is the primary purpose of marriage. But I don’t think one can make the leap that children are a necessity.

    Comment by Neptune — August 5, 2010 @ 3:33 pm - August 5, 2010

  14. I don’t know where you got your copy of the United States Constitution. Nowhere in my copy is “historical core” mentioned. But mine does have sections that deal with due process and equal protection under the law.

    It’s always good when a federal judge upholds the Constitution. I hope that when this reaches the U. S. Supreme Court Justice Kennedy, who crafted the majority in Lawrence vs Texas, will vote to uphold Judge Walker’s decision. It’s likely that Roberts, Scalia, Thomas and Alito will, as usual, twist the Constitution to support their far-right personal views.

    Comment by Lee — August 5, 2010 @ 3:49 pm - August 5, 2010

  15. Why are children necessary to fully enjoy and access the benefits?

    Because there are benefits of marriage, not accessible to unmarried couples, that childless couples do not receive or access due to their lack of having children.

    The reason that’s important is because it establishes that the state HAS codified procreation into the structure of marriage, which directly contradict’s Walker’s attempt to state that marriage has never had anything to do with procreation.

    But mine does have sections that deal with due process and equal protection under the law.

    Oh really? Since bans on marriage always violate due process and equal protection in your constitution, why aren’t you out agitating for child, plural, incestuous, and bestial marriages?

    Answer: Because marriage is not a constitutional right, no matter how desperately Judge Walker wants to make it one.

    Comment by North Dallas Thirty — August 5, 2010 @ 4:07 pm - August 5, 2010

  16. Um, Lee, twisting the constitution? That’s just what Judge Walker did. He didn’t uphold the constitution, he read his provisions to mean precisely what he wanted them to mean without any consideration of their original meaning.

    Comment by B. Daniel Blatt — August 5, 2010 @ 4:14 pm - August 5, 2010

  17. Because there are benefits of marriage, not accessible to unmarried couples, that childless couples do not receive or access due to their lack of having children.

    What are those benefits? I am really not asking this to be a wiseacre; I’m just not sure what you’re referring to. If you mean tax and financial benefits, I would disagree (somewhat) since single parents get those benefits too, which to me means that the state codifies support for children, not necessarily marriage. Certainly the state does use such things to encourage responsible marriages and parenting. If you mean something else, I’m curious what it would be.

    Comment by Neptune — August 5, 2010 @ 4:15 pm - August 5, 2010

  18. To all that defend Prop 8 as legal given the majority vote, are you serious? When did we enter a time when it’s allowed and acceptable for a simple majority to restrict the rights of a minority?

    The contract that exists between two consenting adults has no incremental impact or burden on you so why should any of you have a choice on the actions of these two people?

    Most of the dialogue on this thread appears to be built on tradition rather than logic.

    Comment by Circle — August 5, 2010 @ 5:01 pm - August 5, 2010

  19. To all that defend Prop 8 as legal given the majority vote, are you serious? When did we enter a time when it’s allowed and acceptable for a simple majority to restrict the rights of a minority?

    When we wrote into fundamental law that said majority could do so, which is what the California Constitution says.

    My suggestion is that you not mess with that, since it’s “majority rule” that allows us to create laws against a “minority” of people who engage in criminal behavior. But if you want to be truly consistent, please state that you advocate that the rights of a minority always override the majority.

    Comment by North Dallas Thirty — August 5, 2010 @ 5:12 pm - August 5, 2010

  20. The contract that exists between two consenting adults has no incremental impact or burden on you so why should any of you have a choice on the actions of these two people?

    As I always ask: How does allowing incestuous, polygamous, bestialist, and pedophile groups to marry have any impact or burden on you?

    Give details. How are you harmed by other people being allowed to marry children?

    Comment by North Dallas Thirty — August 5, 2010 @ 5:13 pm - August 5, 2010

  21. When we wrote into fundamental law that said majority could do so, which is what the California Constitution says.

    Yet this wasn’t decided upon the basis of the CA Constitution but instead on an interpretation of the US Constitution, one that will no doubt sail through the 9th Circuit only to crash and burn by at least a 5-4 decision when it reaches SCOTUS. Nothing in the state constitutions can trump the rights guaranteed by the US Constitution.

    Comment by John — August 5, 2010 @ 5:48 pm - August 5, 2010

  22. This is the United States of America and the ONLY definition of marriage that matters are the ones crafted by the elected representatives of the people and those representatives have spoken and reiterated the definition and the reasons. Thats that. That is how we do things in the United States.

    This is most assuredly not true if such a definition contravenes the rights guaranteed by the US Constitution unless the People through Article V revise that document. Judge Walker’s ruling is but Round One. Wait until the Final Round when SCOTUS intervenes and then the real fun begins! I’m curious to see how SCOTUS handles not only Perry but also Gill and Massachusetts.

    Let’s assume that SCTOUS strikes down Perry, which I predict will happen by at least 5-4, then Massachusetts would undoubtedly be struck down as well on similiar grounds. Yet what would the grounds be? A complete reversal that sets precedence like Baker? Such would set SSM back 20 years or more, a la Bowers till Lawrence. What about a partial reversal, i.e. one that finds adequate remedies in civil unions for the alleged violation of constitutional rights both Perry & Massachusetts found. If that happens, what then? Expect lawsuits in the 19 states that ban BOTH same-sex marriage AND civil unions. This would at least punt the issue for a generation or so and there might even evolve a consensus that “marriage” is for hetero couples while “civil unions” are for homo couples yet the legal rights and responsibilities are essentially the same in theory at least. The Wild Card in this in my view is Gill. That ruling is the strongest and it isn’t inconceivable that enough Justices could strike down both Perry and Massachusetts, fully or in part, only to rule in favor of Gill. If that happens, as it should, than unless SCOTUS made it part of their ruling on Gill, expect lawsuits based upon the Full Faith & Credit Clause. All in all this isn’t over yet for awhile, even if anti-SSM activists win the Trifecta and all 3. No, the Culture War is still going on strong.

    Comment by John — August 5, 2010 @ 6:07 pm - August 5, 2010

  23. When did we enter a time when it’s allowed and acceptable for a simple majority to restrict the rights of a minority?

    We haven’t. You HAVE the same right to marry as anyone else. Your rights have not been restricted.

    What we have entered is a time when a tyrannical MINORITY is attempting to redefine what rights are in the first place.

    You do not have a right to be treated the same for doing something fundamentally different.

    Comment by American Elephant — August 5, 2010 @ 6:22 pm - August 5, 2010

  24. NOR do you have the right to redefine the reasons for an institution’s existence simply because its current definition makes you feel bad by reminding you that you are NOT the same, but fundamentally, consequentially different.

    Comment by American Elephant — August 5, 2010 @ 6:27 pm - August 5, 2010

  25. The origin of marriage is God. God created marriage so that people wouldn’t be alone. Humans did not invent marriage.

    I think God created same-sex covenants for gay people as well.

    Just thought I’d toss that in.

    Comment by Ashpenaz — August 5, 2010 @ 6:28 pm - August 5, 2010

  26. Excuse me??!! “Sex difference, however, has always been at the core of the definition of marriage ” No it has not. In fact gays have a more legitimate right to the term Marriage than heterosexuals.

    I’m always amazed at how Christians and Monotheists in general constantly screw this up. Marriage is never mentioned in the Bible, the original not the fake King James. In the original Aramaic text, the term for the union of opposite sex bonding is Betrothal or Companion. Marriage, from the Latin/Roman Matrimonium, was a pagan rite that allowed the union of either heterosexual or homosexual couples. The ceremony, right down to the exchanging of rings comes from this Roman Pagan ritual called MARRIAGE. The ceremony and all it’s trappins were usurped by the Church at the Council of Niceah by Constantine. Up until this point, MARRIAGE was entered into to by both opposite and same-sex couples.

    This historical fact, so inconvenient for many in the right, is fact nonetheless. That many on the right choose to willfully lie and obfuscate, shows both a lack of intellect but also an incredible lack of integrity.

    One final point. Many on the right continually lie about Marriage being around for thousands of years, since the beginning of time. This is patently false and again show the lack of knowledge that seems to permeate the right at this juncture in time. One day, not so long from now, many will look back a this and shake their heads and wonder, why were so many afraid of so few.

    The answer is simple: Moral and Ethical cowardice.

    Rant’s over. I await the rationalizations and excuses to begin.

    Comment by Jon in Canada — August 5, 2010 @ 6:42 pm - August 5, 2010

  27. Jon in Canada, could you please source your rant?

    And I’d check John Boswell’s book wile you’re at it. His title might help you understand my point.

    Comment by B. Daniel Blatt — August 5, 2010 @ 6:51 pm - August 5, 2010

  28. The basic logic I think the Supreme Court will follow is twofold, John.

    First, it will establish that there is no constitutional right to same-sex marriage, or to marriage period. This is actually not reversing Loving, since the Reconstruction amendments (13, 14, and 15) specifically call out and refer to race — and, as the Court already pointed out in Loving, race does not interfere with the primary goals, including procreation, for the establishment of marriage.

    Second, having established that marriage is not a constitutional right, it will also reaffirm that states may define how they themselves wish to define marriage, but that such definitions are not binding on either the Federal government for purposes of benefits or the governments of other states.

    Or, another real possibility I see arising is a Constitutional amendment that simply states, “Nothing in this Constitution shall be interpreted to require recognition of relationships other than that of an consenting, unrelated, adult male and female who are not already married to others.”

    Note the language. Nothing requires, so that removes the threat of judicial fiat. But at the same time, there is no preventative.

    Comment by North Dallas Thirty — August 5, 2010 @ 7:10 pm - August 5, 2010

  29. Wel considering marriage at its core was all about property, why don’t we go back to that? You just combine properties together and everyone is happy. Its not really about anything else, just passing on property and maybe political and power alliances.

    Comment by darkeyedresolve — August 5, 2010 @ 8:34 pm - August 5, 2010

  30. you forget that 14th amendment speaks of “equal protection of the law”.A properly asked question about equal protection can’t be eliminated by history,or by lack of history. see united states v. virginia

    And you forget that the Supreme Court had ruled on this issue before in Baker v. Nelson , when they dismissed, for want of a substantial federal question, an appeal ( PDF ) that alleged that denying marriage licenses on the basis of the sex of the partners violated the due process and equal protection clauses of the 14th Amendment. Dismissals on that basis constitute decisions based on the merits. From Hicks v. Miranda :

    We agree with appellants that the District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S.C. § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one.

    Thus, Baker was controlling precedent. And in Rodriguez de Quijas v. Shearson/American Express, Inc., the Court noted:

    We do not suggest that the Court of Appeals, on its own authority, should have taken the step of renouncing Wilko . If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

    Judge Walker was bound to follow Baker , and dismiss the suit. That he did not was in violation of the rule in Rodriguez . Even if there was a credible argument that Baker was inconsistent with the original public understanding of the 14th Amendment, it was an argument to be decided by the Supreme Court, not a district court judge.

    Furthermore, Baker was not even mentioned in the ruling. It would be like a federal judge overturning a ban on polygamy without mentioning Reynolds v. United States or Davis v. Beason , or a judge upholding a ban on interracial marriage without mentioning Loving v. Virginia .

    By interpreting the 14th Amendment in a manner that was explicitly rejected by the Supreme Court, Judge Walker de facto amended the Constitution in his district. Judges twisting the meaning of the Constitution and defying higher court precedent to suit their own policy preferences is much more harmful to gay rights than Proposition 8 was.

    As I always ask: How does allowing incestuous, polygamous, bestialist, and pedophile groups to marry have any impact or burden on you?

    It would not have any personal impact on me.

    The Constitution does not protect a right to polygamy.

    Or, another real possibility I see arising is a Constitutional amendment that simply states, “Nothing in this Constitution shall be interpreted to require recognition of relationships other than that of an consenting, unrelated, adult male and female who are not already married to others.”

    That would foreclose on this issue.

    But I do wonder what would happen if an Equal Rights Amendment was ratified after passage of such an amendment. (Blatt opined that such an amendment would, indeed, invalidate Proposition 8.) Would such an amendment override the marriage amendment?

    Comment by Michael Ejercito — August 5, 2010 @ 9:10 pm - August 5, 2010

  31. NDT: SCOTUS may determine that there is no violation of constitutional rights with Prop 8, but I doubt it will touch whether marriage is a fundamental right or not. For one thing, such would indeed overturn a portion of Loving which found otherwise and secondly assuming 4 Justices would sign onto such a ruling getting a 5th to concur in such a sweeping decision would be extremely difficult. No, I think it will be something more narrow, possibly finding that civil unions already provide remedy for any potential constitutional problems. That of course would spark another round of lawsuits in states where civil unions are banned as well as SSM. However it’s achieved, yes I would agree that Perry and Massachusetts will not stand fully intact at least. Pity but realistic methinks.

    You may be right about Gill, but I don’t think so. Kennedy will be the key vote for this one and while he may not agree with Full Faith & Credit arguments this time around I can easily see him signing on to upholding Gill by striking down Section 3 of DOMA. I say this based upon his opinions in Romer and Lawrence.

    As for the Federal Marriage Amendment, I have a better chance of winning the lottery than this getting out of Congress let alone being ratified by the requisite number of States. It takes more than a simple majority to amend the Constitution and the will for FMA isn’t strong enough to adopt it.

    Comment by John — August 5, 2010 @ 9:15 pm - August 5, 2010

  32. And you forget that the Supreme Court had ruled on this issue before in Baker v. Nelson

    I wouldn’t rest too comfortably on Baker. There have been significant cases since then which might render Baker as inconsequential as Bowers. Romer and Lawrence will be key in SCOTUS’ decisions no matter how they rule.

    Comment by John — August 5, 2010 @ 9:19 pm - August 5, 2010

  33. I’m still of the opinion that marriage is not now, nor will in the future be considered germaine to Judge Walker’s Prop 8 decision because he has put on display the larger issues of legal anarchy through judicial fiat, whether in this case or in the case of Arizona; and America’s growing impatience with the usurpation of participatory federal democracy by unelected, unaccountable people.

    I say the issue of marriage is not germaine because Judge Walker defines marriage in one way. Another judge will define it another way. Today SSM is legal to spite the people of California, and tomorrow it may be illegal to spite gays. How can anyone live a long and productive life with another person as members of a society that changes its interpretation of the law on a whim?

    Judges judge, they are not, and never were expected by our Founding Fathers to be, rulers. We the People have allowed them to gain and maintain that power. It’s past time to reign these tinhorn despots.

    Comment by DaveOnotinSF — August 6, 2010 @ 12:02 am - August 6, 2010

  34. I’m always amazed at how Christians and Monotheists in general constantly screw this up.

    I’m always amazed at how leftist assholes bastardize history to suit their purposes. I’d be amused if this douchenozzle comes back and provides backup for the bs spewed forth above.

    Comment by ThatGayConservative — August 6, 2010 @ 2:05 am - August 6, 2010

  35. i must say that you must consinder the effect of lemon v.kansas. and romer v. evans. they are more recent than baker v. nelson and apply rational basis scrutiny.

    Comment by volpi — August 6, 2010 @ 3:41 am - August 6, 2010

  36. First time to this site. Wow. I thought I had seen some self-hating homos before, but Blatt, you take the cake! Too bad you are completely wrong on so many issues because you write really well.

    Comment by Andy — August 6, 2010 @ 8:36 am - August 6, 2010

  37. I would like to read Walker’s opinion on the wrack and ruin “polyphobes”* have brought on our culture.

    *polyphobes: Straight and gay people who oppose plural marriages.

    Comment by heliotrope — August 6, 2010 @ 9:14 am - August 6, 2010

  38. That of course would spark another round of lawsuits in states where civil unions are banned as well as SSM. However it’s achieved, yes I would agree that Perry and Massachusetts will not stand fully intact at least. Pity but realistic methinks.

    There is another lawsuit in Louisiana, Bonilla v. Hurst , making similar claims, and it is still pending in courts.

    Louisiana presently does not offer same-sex couples the privilege of entering into an officially recognized and protected family relationship.

    I would be very surprised if the decision in Perry did not embolden the Bonilla plaintiffs and attorneys. Would the judge expedite hearing the case and making the decision due to the decision in Perry ? And how would Bonilla play in the Fifth Circuit? (Any decision in Bonilla will almost certainly be appealed.)

    I wouldn’t rest too comfortably on Baker. There have been significant cases since then which might render Baker as inconsequential as Bowers. Romer and Lawrence will be key in SCOTUS’ decisions no matter how they rule.

    As Justice Kennedy pointed out, Lawrence did not

    involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

    Courts have recognized the narrow scope of Lawrence . The Connecticut Supreme Court had refused to apply Lawrence to a case involving sexual conduct between a teacher and his female students, and the U.S. Supreme Court has yet to review that case. The U.S. Supreme Court denied cert to State v. Holm , a Utah Supreme Court case that upheld a bigamy conviction and rejected the argument that Lawrence overturned anti-bigamy laws, probably because a minor was involved in that case.

    i must say that you must consinder the effect of lemon v.kansas. and romer v. evans. they are more recent than baker v. nelson and apply rational basis scrutiny.

    I have read Romer . Justice Kennedy repeatedly referenced the broadness and breadth of the law at issue, and stated that protections were denied “across the board”. By contrast, Baker upholds the simple denial of a marriage license to a couple based on the sex of the partners. It does not even address if same-sex couples are entitled to a license of another name that recognizes their relationship or grants them legal privileges that married couples have. (There are other Supreme Court decisions that would justify denying same-sex couples any sort of license against a constitutional challenge, but that is another issue.) Since Romer overturned a broad law denying protections across the board, and Baker’s scope is strictly limited to the applicability of the due process and equal protection clauses to denials of marriage licenses on the basis of the sex of partners, they can be reasonably reconciled.

    As I always ask: How does allowing incestuous, polygamous, bestialist, and pedophile groups to marry have any impact or burden on you?

    The Supreme Court explained in Davis v. Beason concerning polygamy:

    They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man.

    First time to this site. Wow. I thought I had seen some self-hating homos before, but Blatt, you take the cake! Too bad you are completely wrong on so many issues because you write really well.

    How is he self-hating?

    He explained how the reasoning in the decision is poor.

    Judge Walker used an interpretation of the 14th Amendment that not only would have been rejected in 1868, but was rejected by the Supreme Court in 1972.

    Comment by Michael Ejercito — August 6, 2010 @ 11:39 am - August 6, 2010

  39. Abraham Lincoln: How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.

    ——–

    People keep telling me that marriage isn’t a sacred institution, but even the most objective people in society behave in ways that cannot be explained ‘scientifically’. Even atheists believe in ‘Good and Evil’. Even atheists fall in love. Even atheists get married?

    I still don’t understand why someone would choose to generalize the identity of others instead of emphasizing an identity of their own. Aren’t the differences between people what makes them individuals? Isn’t it the differences between us that gives each of us value?

    If each of us is not entitled to our own identity, how can any of us be free? Are we a great herd for the shepherds to do with as they please? Are we a crop for the farmers to cultivate?

    Whats so wrong with creating the legally functional equivalent of marriage?
    .

    Comment by gastorgrab — August 6, 2010 @ 11:39 am - August 6, 2010

  40. If each of us is not entitled to our own identity, how can any of us be free? Are we a great herd for the shepherds to do with as they please? Are we a crop for the farmers to cultivate?

    It is strange that some gays want to maintain their identity as gay people, and yet claim that using a different word to describe their relationships, even if they are officially recognized and protected with the same benefits as marriage, is somehow the violation of a basic human right.

    Comment by Michael Ejercito — August 6, 2010 @ 12:16 pm - August 6, 2010

  41. I would be very surprised if the decision in Perry did not embolden the Bonilla plaintiffs and attorneys. Would the judge expedite hearing the case and making the decision due to the decision in Perry ? And how would Bonilla play in the Fifth Circuit? (Any decision in Bonilla will almost certainly be appealed.)

    I doubt much will happen to expedite this case, too many judicial eyes are on SCOTUS to see how they will deal with Perry et al. first.

    As Justice Kennedy pointed out, Lawrence did not

    You may be right, Kennedy is slippery to pin down exactly, but given Judge Walker’s practical love note to appeal to the Justice and that some Justices, particularly those of the swing vote variety, tend to “evolve” over time don’t be too surprised. Even in 2003 when Lawrence was handed down I agreed with Scalia that it would eventually lead to same-sex marriage, I just never thought the attempt would be made so soon. Scalia is right that Lawrence has enough, combined with Romer, for SCOTUS to uphold a decision like Perry. I don’t think Kennedy would do that for Perry or Massachusetts but I could see him doing so for Gill, which leads to the same end result even if it takes more time. Then again, he could actually decide not to on any of these. Like I said, difficult to pin the man down with certainty. :)

    Judge Walker used an interpretation of the 14th Amendment that not only would have been rejected in 1868, but was rejected by the Supreme Court in 1972.

    And yet as we saw with Plessy,Brown,Miller,McDonald, Heller, Bowers, Lawrence, etc., the Court’s views on the Constitution are not static. This Court will undoubtedly overturn Perry but this doesn’t mean that’s it because as we’ve seen give it a few more years after losing and you can get a different result that changes everything. If you want to make an originalist argument though do not forget that the findings in Loving NEVER were intended by the framers of the 14th Amendment.

    Comment by John — August 6, 2010 @ 1:10 pm - August 6, 2010

  42. And yet as we saw with Plessy,Brown,Miller,McDonald, Heller, Bowers, Lawrence, etc., the Court’s views on the Constitution are not static.

    I wish it were static.

    It would mean that we would need to amend the Constitution if we believed that a right or privilege should be protected or granted by the Constitution; it would also mean that the protections already recognized would stay recognized unless the Constitution is amended. And if I remember correctly, there were circuit level judges that actually ruled that the Second Amendment does not protect an individual right to keep and bear arms.

    Comment by Michael Ejercito — August 6, 2010 @ 1:35 pm - August 6, 2010

  43. You may be right, Kennedy is slippery to pin down exactly, but given Judge Walker’s practical love note to appeal to the Justice and that some Justices, particularly those of the swing vote variety, tend to “evolve” over time don’t be too surprised.

    If the Supreme Court were to interpret Lawrence more broadly (thus effectively overruling a portion of Lawrence ), how does that affect State v. Holm and Connecticut v. McKenzie-Adams ? Would it lead the Supreme Court to revisit those cases?

    Comment by Michael Ejercito — August 6, 2010 @ 1:40 pm - August 6, 2010

  44. DaveOnotInSF: Judges judge, they are not, and never were expected by our Founding Fathers to be, rulers. We the People have allowed them to gain and maintain that power. It’s past time to reign these tinhorn despots.

    I’ve seen various versions of this argument all over the place in the past few days, and I still don’t understand it. What happened in this case is a textbook example of what the judiciary is supposed to do (or, at least, has done since Marbury v. Madison, at a time when many of the Founding Fathers were still around).

    California passed an amendment to the state constitution; in response a group of people sued the state in federal court, indicating that they believed their rights under the U.S. Constitution were being abrogated by the CA law. The judge reviewed the case, as well as the facts and arguments introduced into evidence, and agreed with the plaintiffs.

    Regardless of your opinion of the findings in this case, do you seriously believe that there is some set of laws which ought to be beyond the reach of the judiciary? That seems to me like it opens up Pandora’s Box: imagine a Massachusetts law which bans personal ownership of firearms, or a California ballot proposition which nullifies federal drug laws. Should the judiciary in general lose the ability to review those laws, because this judge made an unpopular decision?

    Comment by kzoovoter — August 6, 2010 @ 3:42 pm - August 6, 2010

  45. Regardless of your opinion of the findings in this case, do you seriously believe that there is some set of laws which ought to be beyond the reach of the judiciary?

    The U.S. Constitution.

    When judges refuse to apply the original public understanding and relevant case law (as the Supreme Court did in Plessy v. Ferguson ), they de facto amend the Constitution.

    I fail to see how a constitutional provision that did not protect the right of a woman to vote somehow protects the right of a woman to “marry” a woman.

    If you want to make an originalist argument though do not forget that the findings in Loving NEVER were intended by the framers of the 14th Amendment.

    At the present time, no one is willing to enact and enforce a ban on interracial marriage and force the Supreme Court to reconsider Loving in light of the original public understanding of the 14th Amendment.

    Comment by Michael Ejercito — August 6, 2010 @ 5:10 pm - August 6, 2010

  46. Regardless of your opinion of the findings in this case, do you seriously believe that there is some set of laws which ought to be beyond the reach of the judiciary? (…) Should the judiciary in general lose the ability to review those laws, because this judge made an unpopular decision?

    Should we amend the Constitution to formalize the power of Judicial Review?

    Are judges superior to the thinking of the people and the legislatures?

    kzoovoter, you failed to comment on the appellate system. Why do other judges get to overturn lower judges until the Big Nine weigh in?

    How come judges have to give reasons and their reasoning as to how they reasoned out their epiphanies?

    The problem with “interpreting” the Constitution is that is all entangled with legal precedent. The Constitution does not lay out the framework of how the courts operate and proceed. And the fact is, the Congress can pass a law which bars the Supreme Court from engaging in Judicial Review. Judicial Review is a pure concoction of the Supreme Court itself.

    The “commerce clause” has expanded the powers of Congress to make Pete Stark correct in stating that there is nothing the National Government can not regulate. Obama has ordered buying health insurance as a condition of citizenship.

    Judge Walker could easily have said that he can not find the marriage right in the Constitution. Nor could he find anything in the Constitution that denies the state marriage right to any man or woman who met the state code. But he did not.

    So, we will watch this thing play out and see if the Supreme Court has enough people who can find the glow of unknown rights emanating from the penumbra of certain words, phrases or interpreted concepts of the Constitution to create a new right previously hidden from view.

    A willing liberal activist on the court can find booger swapping as a high cultural mandate.

    The Constitution has ten Amendments that came on the heels of its ratification. Seventeen Amendments follow those first ten and were passed over all the years this country has been operating. Prohibition and canceling prohibition make two of the Amendments dead wood.

    However, Article One, Section 8 lists the specific powers of Congress and clever legislators have stretched the power of the US government to reach into the tags on your mattress and the transfats on your menu.

    If Judicial Review were really important, shouldn’t every law have to be examined automatically by the all powerful Judicial Review Court to see if it based on a clear power enumerated in the Constitution? Shouldn’t the crowd be able to force the Judicial Review Court to decide whether “deeming” a law passed is the same as actually following the rules laid out by the House and Senate?

    Regarless of your opinion of the findings in this case kzoovoter, do you really think the courts are populated with apolitical men and women of good will?

    Comment by heliotrope — August 6, 2010 @ 5:19 pm - August 6, 2010

  47. Poor Ejercito. Doesn’t understand that there’s nothing in the constitution about gayhating, so nothing to amend. Luckily the constitution does not enshrine your prejudices, so you are pretty likely to see this judgement upheld.

    Comment by Dr Zen — August 6, 2010 @ 6:15 pm - August 6, 2010

  48. The relevance of what just happened is still sinking in……

    No matter how this case turned out, our government has been granted a new authority to determine the identity of a subset of “the people”. If Prop8 stood, the government would define something it never before attempted to describe. If Prop8 failed, the government would enforce that new ‘same-sex’ group identity.

    The problem? That which makes each of us unique, that which gives every individual value, is ours alone to decide. Free people are supposed to determine their own identity. It’s called self determination.

    I hope we haven’t given government the power to stereotype it’s citizens, and to govern the different groups of people by different rules. (Cultural Engineering?)

    Even in the best case scenario, our ‘self’ would be determined by popular vote.
    .

    Comment by gastorgrab — August 6, 2010 @ 10:14 pm - August 6, 2010

  49. Cultural/historical hand-waving notwithstanding, the FACTS are that marriage has many legal & civil benefits for couples & thus arbitrarily denying it to a certain group is explicitly discriminatory. The 14th Amendment is crystal-clear in condemning any & all such discrimination, & steadfast opposition to it should be the default position of anybody calling themselves a patriotic American. That both courts & Congress have either upheld or ignored this particular form of discrimination for so long is abhorrent & shameful.

    The strawman of child- or animal-marriage is both intellectually pathetic & irrelevant, as is that of polygamy (since immediate harm is both demonstrable & dire in each of these) … as were the fallacies dressed up as “arguments” that were presented in court in defense of Prop 8.

    Walker’s findings of fact in this case are overwhelming & numerous – & they all point in the same direction. Any higher court hearing this case on appeal has an easy job – if they intend to be stewards of the law, & not merely activists for a demographic that wishes it was still 1946.

    Comment by jim — August 6, 2010 @ 10:51 pm - August 6, 2010

  50. Ok, jim, please cite the specific language in the 14th amendment that is crystal clear in preventing states from making sexual difference a qualification for marriage.

    No, it’s not crystal clear at all. As to your last line, amazing the assumptions you make and the intolerance you demonstrate.

    Comment by B. Daniel Blatt — August 7, 2010 @ 1:27 am - August 7, 2010

  51. Luckily the constitution does not enshrine your prejudices, so you are pretty likely to see this judgement upheld.

    So then calling different things by different names is prejudice?

    Comment by Michael Ejercito — August 7, 2010 @ 1:38 am - August 7, 2010

  52. Still manfully struggling for your status as a second-class citizen, eh, Gaytriot? Keep reaching for that lack of a rainbow.

    Comment by Jack Elam — August 7, 2010 @ 8:20 am - August 7, 2010

  53. How do we justify giving a group of Americans (married people) a different set of rights/benefits than single persons?

    How do they, through a private arrangement between members of their group, expand their rights to something beyond what individual Americans are entitled to? How does an agreement between any two people grant them greater access to community resources?

    Were same-sex couples denied equality, or were they denied the same ‘preference’, the same ‘special access’ to government services, that couples of different-sex unions enjoy?

    All individuals are equal, but pairs of individuals are more equal???
    .

    Comment by gastorgrab — August 7, 2010 @ 11:27 am - August 7, 2010

  54. gastorgrab,

    Yes, we have equal access in the institution of marriage. The fact that a gay couple has to adapt to society is the same as my having to adapt to a normal pair of scissors, or driving for that matter.

    Comment by The_Livewire — August 7, 2010 @ 7:41 pm - August 7, 2010

  55. Still manfully struggling for your status as a second-class citizen, eh, Gaytriot? Keep reaching for that lack of a rainbow.

    If calling homosexual unions a different name than heterosexual unions means that homosexuals are second-class citizens, maybe we should stop calling homosexuals homosexual.

    Comment by Michael Ejercito — August 8, 2010 @ 1:06 pm - August 8, 2010

  56. Why don’t we call them ‘The Wolverines’? That’s a cool name.

    —EDIT—

    I sincerely regret my comments from 10 seconds ago, and in no way meant to imply that Wolverines were anything other that furry little animals with a bad attitude.

    I apologize! My comments were both insensitive and unfair.
    .

    Comment by gastorgrab — August 8, 2010 @ 8:35 pm - August 8, 2010

  57. [...]  This is not to say that it always must remain that way, but a reminder that sex difference, to borrow an expression, is the “historical core” of [...]

    Pingback by GayPatriot » Sex difference at core of classical definition of marriage — August 16, 2010 @ 1:54 pm - August 16, 2010

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