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Saturday, March 30, 2002
Will VehrsWow, I couldn't have been more wrong about the first game of the NCAA men's basketball semi-finals. The Hoosiers played with more heart than the Sooners. Oklahoma was ready to blow the game open early, didn't, and I think it shook their confidence. They never regained it.
Kansas will topple Maryland in a classic tonight.
Tony, I welcome your research on Justice Kennedy. I was just passing along scuttlebutt that I've read about him, along with my own admittedly non-learned opinions. He's been on the Supreme Court longer than he was on the Ninth Circuit, so I don't think you're going find much that is useful from those long ago opinions. If Kennedy is concerned with wanting liberal arguments to be correct before he joins them, he apparently hasn't found all that many to his liking.
Research Project: Which Way Does Kennedy Swing?
Tony AdragnaI hafta disagree, Will. I think that Kennedy is more like Stevens (who can actually be quite conservative on some issues) then he is like Scalia or Thomas. Kennedy's a Californian, and spent 13 years on the Ninth Circuit. So what if he's nominally a conservative, so was Chief Justice Warren, another Californian.
I think that Kennedy is liberal in spirit, but he's more concerned with wanting to be convinced that the liberal arguments are correct before he joins those opinions. I think that Scalia and Thomas are truly conservative in spirit, and seek opportunities to prove that the liberal arguments are wrong.
I'm looking for some evidence of my theory that Kennedy may tend to dissent from Scalia and Thomas, and am in the process of reviewing opinions. There's gotta be something more than just the desire to catch the limelight, which is a charge that I think flows more out of disappointement expressed by conservatives -- their expectations weren't met -- than any real attention to who Kennedy is. A review of his record on the Ninth Circuit may shed some light - it's quite possible that he never was what conservative expected him to be.
Will VehrsWell, another crushing disappointment to report ... once again, the Ipse Dixit Caption Contest Winner is not from The Refuge. Of course, what happened last week--disqualification of the winner--could happen again. The full story of that controversy has yet to be told.
Anyway, I thought JulieC's "cool toy" entry was the class of the field, but that's just me. Dan Dickinson and "Rags" also gave it their best shot. This week's contest has potential.
Tonight are semi-finals for the NCAA basketball championship. I'm rooting for Maryland, but I fear that it will be Kansas-Oklahoma final, with Oklahoma taking home the trophy. Wouldn't it be amazing if they won both the men's and women's championship? The Sooners might have to re-examine their commitment to football.
Friday, March 29, 2002
Justice Kennedy: To the Limelight, Left or Right
Will VehrsTony, I'm keeping a low profile, but I'm still alive. You wrote:
Watch out for Justice Kennedy. I've argued in the past, and still maintain, that if Mr. Bush attempts putting another Scalia or Thomas on the Court, then he may end up pushing Kennedy to the Left.
Yes, Tony, another conservative on the court might end up pushing Kennedy to the left, but Justice Kennedy could just as easily move to the right, or, ideally, continue to be an attention-grabbing swing vote. Kennedy is most concerned with his own self-importance. I believe he thinks he still thinks he is Chief Justice material--younger than O'Connor (who might retire), much less of a lightning rod than Scalia or a conservative from the outside, and more acceptable to Democrats because of his "swing" status. I think Kennedy will do or say whatever it takes to be Chief Justice, or, barring that, whatever it takes to heighten his influence within the court. If the Senate goes Republican after the fall elections and there is not a Chief Justice vacancy, look for him to move right. If the Senate gets more Democratic after November, look for him to tack left.
I don't think he's one of the great legal minds on the court and I think he is the most cunningly political of the justices. Any move he makes will be calculated, not the result of an ideological shift in his own thinking.
Am I wrong about 14th Amendment?
Tony AdragnaThis will be my last entry on the topic for now. I've been accused of "beating the drum" when all I've been doing is responding to criticism of my initial post. The lastest comes from Edward Boyd, who says that I've conflated the general Constitutional principle of equality under the law, and the specific protections granted at the 14th Amendment.
No, Edward, that's not what I'm doing. What I am instead doing is arguing that if strict construction is to be applied -- that is, if every word is to have full meaning and effect -- then the Equal Protection Clause covers "any person" just like the amendment says:
Section. 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.Now, I never argued that 14th Amendment jurisprudence has ever been interpreted to cover "behaviors", and I don't do so now. I also never argued that the 14th Amendment has ever been interpreted as covering homosexuals, but I will now!
Edward is just plain wrong. In Romer v. Evans (1996), Justice Kennedy wrote for the Court:
The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271- 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. ___, ___ (1993) (slip op., at 6).Who is the "single named group" that Amendment 2 targeted? Justice Kennedy names that group in the second paragraph of Section 1 of the opinion:
Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians....[emphasis added]Um, excuse me - I'm not a Constitutional scholar, nor a lawyer, but I can read a Supreme Court opinion. Again, Justice Kennedy speaking for the Court in Romer v. Evans:
One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution.[emphasis added]OK now, going forward from that precedent, I've advanced an argument that denying recognition of homosexual marriages is a denial of Equal Protection. The Court may not buy the argument, but there is affirmative 14th Amendment precedent in sexual orientation cases.
Thanks for the history lesson, Edward, now get current!
n.b.: Watch out for Justice Kennedy. I've argued in the past, and still maintain, that if Mr. Bush attempts putting another Scalia or Thomas on the Court, then he may end up pushing Kennedy to the Left.
[Now I don't need to prove that marriage is a right - that's already established a precedent. All I need do is prove that homosexuals have that right, and the State's failure to recognize legal marriage for homosexuals "burdens a fundamental right"]
Fenn Shouts Back Louder
Tony AdragnaI had hoped that Louder Fenn would respond, and he did!
And yes, you did "impute" some things Fenn.
First, I never said that a sectarian view of morality has no place in debate, whether on policy or law. My assertion is that sectarian morality can't trump the Constitution in civil society. The reason ought be obvious - what one sect finds objectionable, another might find of no concern, or even essential. Civil society -- that is, the place where we all come together outside of our sectarian differences -- might allow one or the other view to prevail, and be wrong in either case. I won't give the arguments from history, lest doing so gives rise to some other imputations.
Yes, a proper civil society depends upon morality, but whose morality? Must I accept your morality and you mine, or might there be some basic truths -- that oft misunderstood notion of Natural Law -- over which we can come together? It's only the latter that can be the basis for Law in a pluralistic society.
That's not to say that sectarian views ought have no wieght in public debate, but they do have less weight balanced against principles embodied in the Constitution and Bill of Rights.
Maybe my "conflation" assertion was misread - Fenn said "sin", and asserted that the State oughtn't grant approbation of "sin". The State's interest isn't in protecting society from "sin" - it's in protecting society from crime. Asking the State to make a judgement on the basis of "sin" is a conflation of the respective interests. That's not to say that the State has no interest in promoting morality, but "sin" is the Church's business.
On alduterous marriages, Fenn actually clears up the double standard with respect to his beliefs -- he condemns the State's approbation of remarriage. But, and I gotta be careful because I don't mean to say that Fenn's voice counts for nothing -- I don't hear that same condemnation of remarriage from the policymakers, and so, in the public debate and at legislative proposals the double standard is operative.
But, Fenn goes further in stating that the view of remarriages as adulterous is a minority opinion within Christianity. That may be true of Christian opinion in the aggregate, but I understand that the majority opinion amongst Christian Church's (big C - the institutions, including their teachings and traditions) is that marriage is eternal, making any remarriage invalid so far as the Church is concerned. That's my understanding, but let me speak to what I know -- in my own Church civil divorces and remarriage are recognized as legitimate, but you cannot get remarried within the Church without a declaration from the Church that the first marriage was invalid. So, my assertion stands -- the State will do what the Church won't.
I saved my strongest objection for last - here it goes. Fenn say:
Tony might, in the end, grant that he is moral; he would probably also note: "But my morality is non-religious!" -- and hence the only sort of morality suitable to the State. Again: Tony gets to run the world; I can just keep quiet.Fenn has crossed from imputation to assumption and straw man arguments. He put words in my mouth, beliefs in my mind -- you're not allowed to do that in argument Fenn -- and then used his own construct in argument against me.[Isn't there something about "bearing false witness"? Did I just catch Fenn in a "sin"? Next time Fenn, try doing me the courtesy of responding to what I said, as I did in my intial response to your post]
For the record: I am a deeply religious gay Roman Catholic who abstains from sex out of respect for the teachings of my church. I studied the teachings of my church as a highschool student at a parochial school, and while a candidate for the priesthood. I have a very well founded sense of morality, and a good knowledge of where that morality comes from. I simply don't believe that religion is the only source of morality, especially since most of moral teaching comes not from religion per se, but from clerics who applied studies in philosophical traditions -- much of which predates Christinaity and comes to us from Greeks -- to our own understanding of what it means to be Moral.
But, my view of morality really doesn't matter in this debate, because I'm not asking the State to impose my view on you. Nobody's asking you, or your Church, to accept homosexual marriages. It is you who, through insisting that your sectarian views ought prevail in limiting what the State may approve, is trying to impose your view on me.
All I want is to be free to follow my conscience within reasonable limits Constitutionally defensible.
Thursday, March 28, 2002
There Is No Right To Marry
Tony AdragnaI asked for proof that gays and lesbians have no right to marry, and Orrin Judd delivers an argument that nobody has a right to marriage. Orrin pointed me to an essay, responding to Andrew Sullivan's Book Virtually Normal: An Argument About Homosexuality, in which Orrin says:
There simply is no "right" to marry. Marriage is a privilege, granted by the state, along with a series of benefits, for the central purpose of continuing its own existence--procreation--and the raising of healthy citizens--in the nuclear family, for which we have yet to find an effective substitute.I'll certainly concede that the ancillary "privilege" of benefits is granted, but "marriage" definitely is not "granted".
Before I go any further in this debate, let's have a definition of marriage:
1. legal relationship between spouses: a legally recognized relationship, established by a civil or religious ceremony, between two people who intend to live together as sexual and domestic partnersThat's an OK definition, except that it obscures an important point: what gives marriage validity. It's not the clause in the middle -- if the mere act of going through a ceremony, whether civil or religious, is what gives marriage validity, then there would never be grounds for annulment. Remember, annullment is not dissolution -- as in divorce -- but a declaration that something never validly existed. On what grounds do civil or religious authorities reach such conclusions?
The only grounds for annullment are: (a) the parties were not competent to enter into marriage (usually either not old enough, or not in a sound state of mind), (b) the decision to get married was made under duress, or (c) the marriage has never been or cannot be consumated. What other area of law has similar grounds for finding an arrangement null? If your answer is Contract Law, then you get an A+. Contracts may be voided if either party wasn't competent, or the contract was entered into under duress, or if there is non-perfomance.
Marriages are covenants. What gives them effect and makes them enforceable are the sames things that apply in any other form of binding agreement.
See? Marriages aren't granted as a privileges, but merely recognized as legal realtionships. Even in civil ceremonies the only significant act that the State performs is recordation of the marriage certificate.
There's your State's Interest in marriage. It's in enforcing legal relationships. Sure, as a matter of policy the State attempts to insert itself into realtionships by granting benefits designed to promote marriages. But, sometimes the State inserts itself wrong way up -- denying a right with the intent of advancing toward some objective while the real problem resides where the right has already been recognized. Face the fact: it's heterosexuals who are having children out of wedlock, who are getting divorced, and are responsible for the decline in marriage[it can't be us, we're not allowed to get married].
Now, Orrin argued in a note to me that the history of regulation in marriage is proof that marriage is "privilege", not "right". Well, The Franchise is more heavily regulated than marriage has ever been -- would Orrin argue that there is no "right" to vote? Maybe he would, but I'll wait for that argument. I'll simply respond to the argument by referring Orrin to Loving v. Virginia - there goes your state regulation.
Addendum:[because I always leave somethin out] Yes, states do "grant" marriage licenses, and legal recognition, but that grant is pro forma. Nobody asks whether the marriage advances the "policy" before the license is issued and recognition is granted -- so long as the letter of the regulation is observed, the grant is automatic.
In Defense of Marriage
Tony AdragnaDear Kevin offers to tackle my argument on the indefensibility of banning gay marriages.
I'm sorry, Kevin, but you failed the test!
My criticism of Louder Fenn's argument took two tacks: (a) Fenn used the word "sin", which is not simply a matter of morality, but of sectarian religious morality, and (b) it's an equal protection issue. Kevin, thankfully, sticks to (b), which makes my life alot easier.
Kevin begins by addressing the states role in granting Marriage licenses:
essentially saying that a marriage license is simply a legal recognition by the state of a legal relationship and that denial of this to homosexuals is a denial of their rights under the equal protection clause of the constitution. I disagree not because I think the state should oppose homosexuality or outlaw it, etc. but because I think marriage is and has been defined as a relationship between a man and a women.Note that Kevin doesn't dispute that "a marriage license is simply a legal recognition by the state of a legal relationship", but jumps instead to a defense of why there's no Equal Protection issue: "marriage is and has been defined as a relationship between a man and a women." Yes, that is the traditional definition of marriage, but must the law define marriage that way? The answer is -- No! It's up to States -- the issuing authority -- to define marriage at state law, which they have done either through statute, or through regulation. How do states define marriage?
Believe it or not, until homosexuals began suing states on the refusal to issue licenses, some states did not have language specifying marriage as "between a man and a woman." When courts decided the cases where there was no sex-specific language the decisions have relied on the absence of legislative intent to include anything other than traditional marriage. Note well the term legislative intent -- that means that the law of marriage, including how the law defines marriage, is whatever the legislature intends it to be.
Now, I have problems with what Kevin says here:
I further beli[e]ve that the state supports marriage (not just be licensing it but by tax code etc.) because it is a crucial part of a stable family and stable families are a integral part of a stable society. In other words a stable two parent family is generally the best environment to raise children therefor[e] the state has an interest in supporting the institution of marriage.That might be the State's intent, but does limiting licensing and giving favourable tax treatment really support marriage? If so, then how do you explain the fact that prior to state licensing of marriages -- i.e., when the only state sanctioned marriages were those between nobility or other people with property interests, and the majority of other marriages were either common law or only church sanctioned -- marriages were more stable (excepting amongst those nobles). And, since the time that States began regulating marriage through legislation, the incidence of divorce and children raised in broken homes has increased.
And the "tax code" argument only makes sense recently -- married people filing jointly with no dependants actually paid more taxes as a percentage of income than single people with comparable offsets.
Besides, the argument is a reason to "support marriage", not a reason to "disallow same-sex marriage." So, where's the argument?
Here it is:
It seems to me that any move that changes the definition of marriage to open it up to those outside the traditional family structure (man-woman-children-etc.) weakens that structure. The reason it does so is that it opens it up not only to gay couples but to other non-traditional arrangements.That's an assertion that "non-traditional arrangements", which, by the way, include same-sex marriages, "weakens the structure [of marriage]." Prove it!
Let me give an example - benefits. One of the main reasons this issue is in the forefront is because of insurance/employer benefits. Gay couples want to be able to share benefits as a family unit but the laws and company policies are structured so as to deny them that ability. So activists are seeking to change the laws and benefit policies to make them applicable to gay couples. But this often leads to a breakdown in definitions. If gay couples who are not married can share benefits why not unmarried couples or simply close friends living together? In fact in places where the rules regarding benefits have changed these type of relationships have been included. This, it seems to me, is breaking down the original reason for the policy - to strengthen families.[emphasis added]Yes, there is a change in definition, but where's the adverse impact? Are we sure that we know that the "original reason for the policy" was "to strengthen families"? Kevin is talking about benefits law and company policies. Company policies have never had anything to do with strengthening families, and everything to do with economics, rewarding employees, and compliance with benefits law. Benefits law has nothing to do with strengthening families, and everything to do with protecting employees. But, there are other "benefits" at issue. so lets' examine Kevin's argument further:
Let me just say that I have no problem with private companies offering benefits to whoever they want - that is their business and their money, they must decide what works for them. When it comes to government/state benefits, however, I think citizens have a right to some input because it is their tax dollars at work and it sets the tone for the community. If a city or state feels that giving benefits to non-married couples fits within the goals and standards of the community great but if they don't that is fine too.I agree, but that's not an argument against same-sex marriage. It is an argument for leaving it up to "citizens" through their legislatures to decide such questions. The problem is that with respect to marriage -- that's what my argument is about, despite the fact that we've somehow started talking about benefits -- which isn't a "benefit" but a "right" (though, not one recognized for same-sex marriages), we run into the Full Faith and Credit clause. DOMA allows one state to refuse recognition of a marriage that is fully legal in another state.
Kevin then deals with the issue of discrimination:
It is not discriminatory to refuse to change the benefits when those benefits were clear prior to being hired. Gay couples or non-married straight couples or close friends living together or whatever do not have a right to the benefits of married couples because they are not married and they [k]new that going in[emphais added]I certainly agree with part of this statement. The question with respect to benefits is whether or not the discrimination is in compliance with benefits law. If the claimant has no right at law, then there's no claim. But, saying that we have no right because we "are not married" is a tautology -- we have no right because we're not married, but we're not married bacause the State says that we have no right to marry. Now, will you please prove to me that we have no right to get married to a partner of the same sex.
Kevin's summary is open, as is his mind, to new thoughts.
Here are my thoughts.
The Supreme Court has found that there is a right to get married. I believe that the right extends to same sex couples. That the Court hasn't yet reached that opinion isn't surprising -- the Court has still yet to find that same-sex couples have an expectation of privacy in their own bedrooms. I heard Bill O'Reilly ask Rosie why homosexuals put their orientation out on the front porch - that's a strawman: the reason why Rosie ended up on the porch is becuase the State of Florida was "in peoples' bedrooms" deciding who would make good parents.
There's no proof that homosexuals don't make good parents. In fact, the best indicator of how well adjusted the child will be is how well adjusted the parent is. By that indicator, I can think of alotta parents -- including my own -- who should never be allowed to marry and have kids.
The arguments against same-sex marriage boil down to [disproved] assertions and [unproven] assumptions.
The assertion that the State supports marriage through licensing and favourable tax treatment is counterfactual. The assertion that approving same-sex marriage has an adverse impact on traditional marriages is a non-sequitor -- how does it follow that straight people will stop getting married and having children and rasing them in good environments simply because gays and lesbians are allowed to marry and adopt? There's an unstated assumption that homosexuals can't have stable relationships and be good parents, though the assumption comes through very clearly in the argument.
But, heterosexuals get divorced and reamarried, and have their kids taken away from them for being bad parents. If it's a pursuit of stable families and good parents that we want, then why aren't we making it illegal to get divorced and remarried, and why isn't the State involved before the fact in heterosexual couples' decisions to have children? Answer me these questions.
Then, explain to me, without referencing "traditional marriage" or Supreme Court precedent, why I oughtn't have a right to civil marriage with someone of the same sex...
n.b. How is this all an Equal Protection argument? It's actually not as convoluted as all of the matter above. The assertion that disallowing same-sex marriages is an Equal Protection claim rests on the Supreme Court's finding that marriage is a "right". Individual rights must prevail unless there's a State interest sufficent to limit the right. So far all we've seen are arguments on "definition" & "legislative intent" that are easily overcome, arguments on "interest" that are counterfactual & counterintuitive, and arguments at law that are, especially in the case of DOMA, Constitutionally suspect.
Addendum: A bit more on "benefits". History proves my assertion that the "original reason" for company policy on employer-provided benefits had nothing to do with supporting traditional families - these benefits originated in the labor movement (can we say "socialists"?). The idea of employers offering "family friendly packages" of paid benefits -- i.e. flex time, family leave, etc. -- is a fairly recent innovation.
Further, the State's "original reason" for providing benefit was not the support of marriage, but the protection of property interests -- the only benefit that was originally provided (except, again with those nobles, there was also a "stability" issue - political stability of the realm -- because whoever controlled the realm's property controlled the realm). Promoting marriage and supporting families is a fairly recent innovation at legislative intent, and is intended mostly to revise & reform government benefits policy that had its begin in FDR's New Deal.
Wednesday, March 27, 2002