Libertarian-leaning columnist Cathy Young writes in the Boston Globe on why the New Jersey decision (equal legal rights and civil protections to same-sex couples, but stopping short of endorsing a right to marriage) "may be best suited for this complicated moment in our social history."
I'm no fan of the so-called "judicial strategy" for same-sex marriage, but Arthur Leonard scores some good points on how what was meant to be a carefully honed approach, selectively applied, got so out of hand.
And David Boaz adds his voice to what's so wrong about Virginia's broadly expansive anti-gay marriage/anti-civil unions/anti-partnership-contracts amendment.
11 Comments for “Catching Up.”
posted by kittynboi on
All this talk over the “judicial strategy’ and how bad it is doesn’t convince me of much, because I’m sure if we pursued an electoral strategy instead, the religious reich would be doing the exact same thing that are now.
so criticizing the “judicial strategy”, at least from the angle that judicial decisions are angering people as I often see argued here and there, isn’t very convincing to me.
posted by Northeast Libertarian on
You’ve hit the problem’s origin square on the head, kittyn.
I’d only add that the genesis of this problem we find ourselves in is the perversion of the concept of “rights” which the old left and old right in this country have delivered.
Our Constitutional rights are now viewed as “privileges” which can be granted or taken away by government or “a majority.” Thus, Republican and Democratic idiots run around screaming “let the people decide the gay marriage issue” (they cannot) and “we live in a democracy” (no we don’t).
Constitutional rights, be they the right to free speech, free religion (or lack thereof), self-defense, the right to keep and bear arms, or equal protection laws (which make gay-excluding marriage laws unconstitutional) are viewed as a mere hindrance by our wannabe political masters. Any judicial decision which mandates adherence to the Constitution above various big-government, rights-destroying agendas of the Republicrats and Demopublicans is condemned by the former as “judicial activism” and the latter as “corporate judgeships.”
Meanwhile, the Dem and Rep wanna-be puppetmasters are desperately trying to convince us to drop our “unproductive” insistence on having our Constitutional rights adhered to by presenting us with new “rights.”
No, you don’t have a first amendment right to free speech anymore — get in the free speech zone or you’ll be arrested. But you *do* have a right to violate the rights of those people over there who you don’t like so much!
No, you idiot homos who insist on adherence to the constitution are undermining our program of change! Besides, your “right” to government-monopolized health care is much more important than your right to equal protection under the law.
No, you don’t have a right to a trial or habeus corpus, that’s inconvenient to our war on terror. Besides, it violates your “right to feel safe from terrorists” — even if you’re not really safe from terrorists.
No, you don’t have a right to seek redress from jurisprudence when populists insist that the Constitution doesn’t apply to you and your ilk. But we will use the court system to sue critics into oblivion and challenge any ballot results we don’t like!
And on and on it goes.
People who claim to be “pragmatic” in accepting second-class status and arguments which state that we don’t deserve Constitutional protection and are “ruining everything” by insisting on full, equal protection under the supreme governing document of this country are ensuring this country’s one-way ticket to moral and legal liquidation.
posted by North Dallas Thirty on
LOL….and yet, NL, for all your screaming about the Constitution and adherence to it, you overlook this very crucial part.
From this comes the beautiful and delicate balance that has preserved our system for well over two hundred years, despite the insistence of demagogues like yourself from time immemorial that the currents of the day or the politicians in power would destroy it.
And NL, while you portray yourself as only “appealing to jurisprudence”, as if you were somehow being wronged and seeking redress, the simple fact of the matter is that you are trying to use the judiciary to impose your will on voters. The fact that you and yours, instead of accepting the decision of one, or even more judges, continue to file repeated and identical lawsuits in every venue available to you.
In short, you’re judge-shopping. And the fact that you’re doing it has been made patently obvious to the electorate, who, for the first time in this country’s history, are instantaneously privy to things happening in the multiple states — and are united against them.
In short, what you and your fellow “activists” have never realized is this; people have no problem with convicted criminals being allowed to appeal decisions, but are enormously turned off by people who repeatedly file appeals, briefs, and requests even after being repeatedly rebuffed. They see the former as using the system and the latter as abusing — and they take steps to limit the latter.
In short, had you only appealed for redress, you’d be fine. But when you made it clear that your point was to abuse the legal system, that’s when tolerance went away.
posted by Northeast Libertarian on
for all your screaming about the Constitution and adherence to it, you overlook this very crucial part.
I haven’t overlooked the amendment process at all. Your party has attempted, twice — and failed, twice — to write gays out of the Constitution.
while you portray yourself as only “appealing to jurisprudence”, as if you were somehow being wronged and seeking redress, the simple fact of the matter is that you are trying to use the judiciary to impose your will on voters
This argument will come back to bite you and your neoconservative friends squarely on the ass, and rather soon.
You see, the popularity of the Second Amendment right to keep and bear arms is waning quickly. Laws to ban possession and make registration mandatory are quickly being passed — and they’re very popular. Eventually, confiscation of guns will be a reality in several states — with the overwhelming 60% support of voters.
You and your party’s gun rights lobby will be fucked, because you will already have created a precedent which says that challenging such laws in court because of their unconstitutional basis is “overriding the will of the majority.”
Whereas I’ll be there, again, fighting for the Constitution — this time, on your side.
You see, unlike you and your ilk, I believe in the idea of America — limited government, strictly governed by the Constitution, with strong restrictions on the ability of a majority to remove the unalienable rights of a minority through a simple fiat vote.
You’ve tried to amend the Constitution. You’ve failed. It doesn’t mean you can now ignore what you’ve tried to amend and claim that the Constitution is “subverting the will of the voters.”
posted by Northeast Libertarian on
people have no problem with convicted criminals being allowed to appeal decisions, but are enormously turned off by people who repeatedly file appeals, briefs, and requests even after being repeatedly rebuffed
Gee, you mean like your party’s God-botherers and their efforts to force courts to display the Ten Commandments?
Or your party’s persistent efforts to ban abortion and get around Roe v. Wade?
Physician, heal thyself.
posted by North Dallas Thirty on
You and your party’s gun rights lobby will be fucked, because you will already have created a precedent which says that challenging such laws in court because of their unconstitutional basis is “overriding the will of the majority.”
Not likely.
You see, NL, the right to keep and bear arms is there, plain as day, black and white, clearly written and spelled out, in the United States Constitution. And your doomsday scenario has already been played out; seriously, if that’s your idea of “fucked”, I’ll take that in a heartbeat.
I haven’t overlooked the amendment process at all. Your party has attempted, twice — and failed, twice — to write gays out of the Constitution.
Meanwhile, at the state level, such amendments are passing with overwhelming majorities.
What that tells me is that voters are not yet ready to amend the Federal constitution because they can handle it at the state level; however, if state laws are overridden, especially by a Federal court, all bets are off.
Don’t assume, NL, that because the electorate only sent you to your room without supper, that they won’t spank you if your actions require it.
If you were smart, you’d be working with voters, instead of trying lawsuit after lawsuit. But the simple fact of the matter is that facing voters requires you to be nice and polite to people who you think are below you, and you can’t do that.
Gee, you mean like your party’s God-botherers and their efforts to force courts to display the Ten Commandments?
Or your party’s persistent efforts to ban abortion and get around Roe v. Wade?
Physician, heal thyself.
Why? That’s the extreme right following the same “judicial strategy” that you are.
The utterly-amazing thing for me, NL, is how you can correctly point out how stupid that strategy is in others, yet so strongly advocate it yourself.
posted by Northeast Libertarian on
the right to keep and bear arms is there, plain as day, black and white, clearly written and spelled out, in the United States Constitution
So is the equal protection clause (which includes gay marriage law).
And habeus corpus.
Hasn’t stopped your party from taking a pot shot at those, too.
voters are not yet ready to amend the Federal constitution because they can handle it at the state level
Voters don’t amend the federal Constitution.
Please, get a grasp of the process before lecturing me about it.
That’s the extreme right following the same “judicial strategy” that you are.
You consider President Bush and the majority leaders in the Senate and House to be the “extreme right,” eh?
Well, at least you’re being honest for a change! 😉
posted by North Dallas Thirty on
So is the equal protection clause (which includes gay marriage law).
Let’s do a compare and contrast.
Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As I said, there it is in black and white, specifically referring to the right of the people to keep and bear arms.
Now, to the Fourteenth Amendment, in which NL claims the right to gay marriage is clearly enumerated with the same obviousness, force, and strength as the right to keep and bear arms is within the Second Amendment:
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Nope, didn’t think so.
Of course, what NL is trying to argue is that it isn’t “equal protection” for states to allow heterosexuals to marry, but not gays.
Of course, what he conveniently leaves out is that several groups of heterosexuals — for instance, polygamists, bestialists, pedophiles, and the like — aren’t allowed to marry either. Indeed, several kinds of heterosexuals even have their sexual activity conducted in private criminalized — prostitutes, child molestors, etc. are great examples.
In short, if NL were honestly applying the “equal protection” argument, he would have to admit that the only limit that states can put on sex or marriage is that outlined in the Fourteenth Amendment — which is “person within its jurisdiction”.
Now, if NL were arguing that states should extend their marriage laws to include gay couples, that would be entirely constitutional. However, the simple fact is that the vast majority of states won’t; thus, NL is clumsily attempting to use the Fourteenth Amendment to force it on them.
Won’t work.
Voters don’t amend the federal Constitution.
Article V. Deal with it. Unless you want to argue that the will of voters has nothing to do with Congress, the legislatures of the states, or constitutional conventions.
You consider President Bush and the majority leaders in the Senate and House to be the “extreme right,” eh?
LOL….diversionary tactics won’t work, NL.
Why, since you oppose attempts to block or overturn court decisions, either legislatively or by lawsuit, do you and your fellow gay leftists continue to file lawsuit after lawsuit in state and Federal courts trying to get previous decisions that support bans on gay marriage overturned?
In short, if those tactics are “extremist”, since you use them, what does that make you?
posted by Northeast Libertarian on
nor deny to any person within its jurisdiction the equal protection of the laws
Seems pretty straightforward to me — unless you’re arguing that gay people aren’t “persons.”
you oppose attempts to block or overturn court decisions, either legislatively or by lawsuit
How does one “block or overturn court decisions” legislatively? The last time I checked, the legislature doesn’t have any permission to administer the judiciary, or the other way around, and jurisprudence is the ultimate arbiter of legal questions.
You guys know so little about the Constitution and its processes designed to defend all of our freedoms, it’s no wonder you’re working to metaphorically shred it.
diversionary tactics won’t work
I’m sorry that you view the operation of the Constitution as a diversion. I happen to view it as the supreme law of the land and the best legal document to ever be formulated in human history. I guess we’ll have to disagree on this fundamental point.
posted by North Dallas Thirty on
Seems pretty straightforward to me — unless you’re arguing that gay people aren’t “persons.”
Not at all.
What you’re trying to do is ignore the fact that polygamists, bestialists, child molestors, pedophiles, incest practitioners, and others also qualify under the definition of “person”.
What I’m asking you to do is to be honest and say that the Fourteenth Amendment allows everyone to get married, regardless of their sexual partner or preference — since you quite obviously believe it.
How does one “block or overturn court decisions” legislatively?
Isn’t that what you and yours claim the MPA, FMA, and other things do?
And how about the “lawsuit” part? Why do you have so much trouble admitting that you want others to respect court decisions and not file lawsuits, but that that shouldn’t apply to you?
As for the last, NL, you only respect the portions of the Constitution that give you what you want. But what you can’t handle is that the Constitution gives the electorate the power to get rid of things it doesn’t like — and given your attitude and rhetoric towards voters, I’m not surprised that they do.
The problem is that you base your antireligious bigotry, hate, and immaturity on the fact that you’re gay — and thus people like me are nicked as well.
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