In response to my last posting, a very knowledgable guy wrote me and let me know that I was mistaken in several places in my last entry. I've posted the e-mail exchange for the benefit of people following this.
[Update] I've been holding a parallel discussion over at The Daily Kos. Take a look at the discussion. There has been some interesting comments in response to this entry.
Note the indentations from the e-mail converstaion. His words are in italics, while mine are in plain text.
1. "Powers" not rights are reserved to the states or to the people (10th Amend.). The states recognize marriage and government has done so for 2000+ years on the assumption that "marriage" is a union between a man and a woman. If states wish to change the meaning of marriage -- by exercising their power -- they can do so. But a single judge (elected or appointed) is not so authorized to make this judgment.
I agree with the sympathy that judges shouldn't be making laws and all that, but I don't see how a prohibition on gay marriages stands up (logically) to equal protection scrutiny in light of rulings like Lawrence v. Texas. Maybe my understanding of equal protection is flawed -- but it seems that if you're offering tax benefits to heterosexual couples (and family units), it doesn't follow for me that you could deny those same benefits to homosexual couples without equal protection problems. How do you get around the 14th amendment in these cases?The tax benefits work the other way. There's something called the marriage penalty. No one has managed to knock it down on EP grounds. Besides, the EPC applies to STATE governments with particularity in the 14th amendment. Lawrence v. TX rested on a Due Process liberty interest, not EP.
2. Gay marriage may be the third rail of electoral politics. I think any candidate who supports gay marriage (as opposed to gay union) is dead in the south. And we know the difficulty of forming a minimum winning coalition without a single southern state. Just imagine when Howard Dean gives his acceptance speech for the nomination and gets to the line in his address where he asserts his support for gay marriage. The camera pans to two guys who embrace in one of those big kisses (like the Gores). The Dems will sink like stones, IMHO.
Agreed. But I don't think that the support is there for the federal marriage amendment as I've heard it described. It seems like the supermajority required to close this door via an amendment is just not there and shrinking daily.
3. There is strong opposition to gay marriage because the majority view "marriage" in the traditional sense. This is quintessentially a public policy issue, not a rights issue. It should be fought -- and won or lost -- in electoral politics and in the legislature. And it is difficult for me to comprehend --as it is difficult for George to grasp -- that a single Massachusetts judge will decide the fate of this issue for the country when it is so strongly -- and will be bitterly -- contested.
Maybe this is Roe for the new century. :-) I agree with the sentiment that it should be decided by legislatures, but again, how do you not run afoul of the 14th amendment?Not an EP issue...yet. Remember that Lawrence rested on Due Process ground.
And what is the limit to your argument? Given your EP assumptions, could a child marry a parent? (Assume different sexes; parent is beyond child-bearing/creating age.)
Given my argument, a child marrying a parent is an allowable outcome. As is probably polygamy and other alternative family forms. I can't say that I'm a fan of it -- I just don't see how you get around the equal protection arguments. Of course, I may have just completely forgotten the limitations that can be placed on an equal protection argument. Perhaps Scalia wasn't so paranoid after all when speaking about what could happen in a post-Lawrence era.
-- End E-Mail --
So in retrospect, it looks like I was mistaken on a few points -- namely that Lawrence v. Texas (doh!) was decided on equal protection grounds and that there is some tax benefit when being married (Can someone clear this up for me or is this a state by state thing?). I agree with his assessment that judges shouldn't be legislating -- my main beef with the Roe opinion -- and it appears that there is not an equal protection issue yet with respect to this situation. Barbara brought up the idea that marriage is only a contract -- gotta love law students (*ducks*) -- so if this is the case, what do homosexual couples lose out on by being unable to marry? Isn't it possible to forge contracts and other documents that show a partner's wishes with respect to their partner's visitation rights, inheritance, and other such things? In other words, if you're a gay couple, why bother with getting married to begin with?
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a couple points:
1. haven't read L v. T since last june, but if i remember correctly at least a concurrence (O'Connor I think) based her opin on E.P. this isn't to say that the case was decided on e.p. but that doesn't mean that it's not there to be cited next time around. especially considering o'connor's power on the court (what a babe!)
2. e.p. is required by the feds, too. it's encorporated into the 5th amendment's due process clause, even though it's not textually there. but, homosexuals aren't a protected class in the same way that african-americans, different nationalities, etc. are. generally they get rational basis review, though L v. T and a few other cases have upted the anti to rational basis "with a bite" or perhaps even intermediate scrutiny (like for gender and religion).
3. none of the above actually applies to the MA case since it was decided under the state's constitution and not the federal one. the state constitution has its own precedent which i do not know at all beyond the area of disability discrimination and landlord-tenant law :-)
4. there's a marriage benefit in tax (and a penalty). they don't quite wash each other out and i think in general, it comes out to being a benefit though i'd have to review that chunk of tax law and i'm not up to it in my studying yet. i'll update you if i get a clue.
5. the contracts issue. it's not that marriage is only a contract and it's not that i'm a law student. my feelings on this come much more from being jewish than from being a law student anyway. in a traditional jewish ceremony, you sign something called a "ketubah" which is a marriage contract promising whatever. in traditional christian ceremonies it's "to have and to hold, in richness and in poorness, etc." also pretty contractual. i think the general religious feeling is that it's a contract witnessed by g-d.
but beyond that, it's not that you can't just create a joint tenancy in everything you own (sorry, legal mumbo jumbo) and create all sorts of joint-liability partnerships for everything you do. you can, and with a lot a lot of work and liberal enforcement by courts, you could probably come pretty close to the same rights that a married couple shares.
but there are so many implied rights and so many things we take for granted (joint custody of children by marrieds, hospital visitation rights, power of attorney, etc.) that would be absurd to try to contract for all that a marriage simply creates. why should it be harder just because the person you choose to share those rights and privileges with is the same gender as you? (beyond that medical coverage and other benefits that can't be contracted for because they involve 3rd parties who aren't parties to the contract) and i think that's what brings you full circle back to e.p.
in the federal context: is there a rational basis for preventing homosexual couples the same marital rights (and obligations) that heterosexual couples have and does that rational basis serve a legitimate state interest? for now, probably. it's very, very rare that anything fails under rational basis review.
in the amendment context - if somehow congress managed to pass a hetero-marriage amendment and somehow the states managed to ratify it (can we say incredibly unlikely and years and years away in which all of gen-Y and below comes of age and votes in a much more liberal and tolerant world), the Court may just strike it down anyway, depending on who's on the bench then. and i think the easiest way to strike it down would be to say that Congress has no right to regulate marriage, it's a police power left to the states. Congress (and the exec, assuming it's another Bush-y type) then say, "commerce clause!" and i think the Court reponds by saying bullshit and citing SAAMTA. the same conservative court that wanted to limit federal powers and boost states rights by writing SAAMTA (and admittedly this is Rehnquist more than anyone and his days are numbered) is not going to allow a sweeping federal marriage act.
ok, that's more than enough for now. call me when the wind dies down :-)
on a side note, while i respect the fact that you were probably looking for comments in support of robbie and knew that in this case (despite my obvious love and affection for him) you weren't going to get it from me, who is this "smart guy" and why wasn't i consulted? sniff. thankfully peteyp (whoever that may be) rebutted him and you both on kos in much the same line as i did here, though much more eloquently.
i think it is wrong if god wanted men to marry men and women to marry women he wouldn't have made two genders?? duh!! gays should be tossed in jail it is wrong for another man to crave for sex with a man!! i feel that gay marriages should be outlawed in evey state!!!
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