Lost post found
I'm not sure if I just made a mistake and deleted a very well-written post or if there's something afoul in blogger land, but I saw that a post I wrote on Saturday disappeared. I found a cached copy and am re-attaching it here.
It's just like losing one of your babies, I tell ya.
Originally here:
I'm BAAAAACK! I'm back in the saddle again...
Actually, that's partially true. Still have a nasty headache but I'm not as fuzzy as I was all day yesterday. Acccordingly, I can respond to one of Clay's questions:
"Regarding state rights my question is this if we are strict constitutionalist how can any state deny marriage to anyone?"
Amendment XIV - Citizenship rights. Ratified 7/9/1868. Note History1. 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.
After reading this question, my first thought was about the constitutionality of marriage itself. By definition, it’s a deprivation of liberty, so it seems that the institution itself is unconstitutional. By issuing a license, the state ipso facto bestows the ability to individuals to deprive the other party of liberties they enjoyed when they were single.
I joke, I joke, I keed, I keed.
Next, I thought about the possibility of arguing that marriage, in and of itself, does not bestow any rights on you…other laws at state and federal levels do. Because there are no rights granted, there are no rights denied. But that’s a somewhat slippery (and entirely too time-consuming) argument, so I abandoned it.
Then, I thought about going the “Original Meaning Theory” route. If we, as a much more enlightened society, so vehemently oppose same-sex marriage, it’s a pretty safe bet that the drafters of the 14th Amendment, did not mean to allow homosexuals to “bastardize” the institution of marriage…especially since some states had statutes on the books which specifically outlawed homosexuality. Those laws were not overturned until 2003 by the Lawrence case. More on Lawrence later.
Finally, I just decided to see if this had ever been before the courts. No need for me to argue a case that the Supreme Court has already decided. Sure enough, it was.
In Baker v. Nelson, the Minnesota Supreme Court ruled that a law restricting same-sex marriage “does not offend the First, Eighth, Ninth or Fourteenth Amendments” because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex".
When the plaintiff tried to appeal, the US Supreme Court refused to hear it “for want of a substantial Federal question” The “dismissal for want of a substantial federal question constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts.” This is a binding precedent until such time as the Supreme Court overrules it.
Of course, Lawrence v. Texas slightly opens the door to the possibility that the court may decide to overrule this precedent. In fact, it can be argued that the decision opens the door to striking down statutes which prohibit many things you and I may find distasteful and immoral in the name of “sexual liberty”.
Of course, I don’t see that happening any time soon. The majority opinion tried to limit the decision to criminal penalty for engaging in homosexual acts, but who’s to say that Lawrence won’t be significantly broadened in the future to accommodate all sorts of "deviant behavior"?
Wikipedia has a pretty good write-up on the case.
Personally, I hope that marriage continues to be the union between a man and a woman and I acknowledge that this is based on my personal feelings and not on a well-thought-out logical position. As far as civil unions go, I’m going to let Dick Cheney speak for me:
“…people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard...The next step then, of course, is the question you ask of whether or not there ought to be some kind of official sanction, if you will, of the relationship, or if these relationships should be treated the same as a conventional marriage is. That's a tougher problem. That's not a slam dunk. I think the fact of the matter is that matter is regulated by the states. I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area. I try to be open minded about it as much as I can and tolerant of those relationships. And like Joe [Lieberman], I’m also wrestling with the extent to which there ought to be legal sanction of those relationships. I think we ought to do everything we can to tolerate and accommodate whatever kind of relationships people want to enter into."
I’ve had quite a few gay friends over the years and consider myself to be very tolerant of their lifestyle (even though I think it's ookie). Do I believe that we should ensure that gay couples enjoy the rights conferred on married couples as it relates to inheritances, hospital visitations, last wishes, etc.? Sure.
Do I believe that we should completely re-define the institution of marriage? No.
It's just like losing one of your babies, I tell ya.
Originally here:
I'm BAAAAACK! I'm back in the saddle again...
Actually, that's partially true. Still have a nasty headache but I'm not as fuzzy as I was all day yesterday. Acccordingly, I can respond to one of Clay's questions:
"Regarding state rights my question is this if we are strict constitutionalist how can any state deny marriage to anyone?"
Amendment XIV - Citizenship rights. Ratified 7/9/1868. Note History1. 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.
After reading this question, my first thought was about the constitutionality of marriage itself. By definition, it’s a deprivation of liberty, so it seems that the institution itself is unconstitutional. By issuing a license, the state ipso facto bestows the ability to individuals to deprive the other party of liberties they enjoyed when they were single.
I joke, I joke, I keed, I keed.
Next, I thought about the possibility of arguing that marriage, in and of itself, does not bestow any rights on you…other laws at state and federal levels do. Because there are no rights granted, there are no rights denied. But that’s a somewhat slippery (and entirely too time-consuming) argument, so I abandoned it.
Then, I thought about going the “Original Meaning Theory” route. If we, as a much more enlightened society, so vehemently oppose same-sex marriage, it’s a pretty safe bet that the drafters of the 14th Amendment, did not mean to allow homosexuals to “bastardize” the institution of marriage…especially since some states had statutes on the books which specifically outlawed homosexuality. Those laws were not overturned until 2003 by the Lawrence case. More on Lawrence later.
Finally, I just decided to see if this had ever been before the courts. No need for me to argue a case that the Supreme Court has already decided. Sure enough, it was.
In Baker v. Nelson, the Minnesota Supreme Court ruled that a law restricting same-sex marriage “does not offend the First, Eighth, Ninth or Fourteenth Amendments” because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex".
When the plaintiff tried to appeal, the US Supreme Court refused to hear it “for want of a substantial Federal question” The “dismissal for want of a substantial federal question constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts.” This is a binding precedent until such time as the Supreme Court overrules it.
Of course, Lawrence v. Texas slightly opens the door to the possibility that the court may decide to overrule this precedent. In fact, it can be argued that the decision opens the door to striking down statutes which prohibit many things you and I may find distasteful and immoral in the name of “sexual liberty”.
Of course, I don’t see that happening any time soon. The majority opinion tried to limit the decision to criminal penalty for engaging in homosexual acts, but who’s to say that Lawrence won’t be significantly broadened in the future to accommodate all sorts of "deviant behavior"?
Wikipedia has a pretty good write-up on the case.
Personally, I hope that marriage continues to be the union between a man and a woman and I acknowledge that this is based on my personal feelings and not on a well-thought-out logical position. As far as civil unions go, I’m going to let Dick Cheney speak for me:
“…people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard...The next step then, of course, is the question you ask of whether or not there ought to be some kind of official sanction, if you will, of the relationship, or if these relationships should be treated the same as a conventional marriage is. That's a tougher problem. That's not a slam dunk. I think the fact of the matter is that matter is regulated by the states. I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area. I try to be open minded about it as much as I can and tolerant of those relationships. And like Joe [Lieberman], I’m also wrestling with the extent to which there ought to be legal sanction of those relationships. I think we ought to do everything we can to tolerate and accommodate whatever kind of relationships people want to enter into."
I’ve had quite a few gay friends over the years and consider myself to be very tolerant of their lifestyle (even though I think it's ookie). Do I believe that we should ensure that gay couples enjoy the rights conferred on married couples as it relates to inheritances, hospital visitations, last wishes, etc.? Sure.
Do I believe that we should completely re-define the institution of marriage? No.
posted by Big Bad Dad at 5:25 PM
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