The Commonwealth of Virginia's Ultimate Blog

Thursday, January 26, 2006

Gay Marriage Amendment

I see from today's WaPo and RTD that the Virginia Senate has passed a gay marriage ban with identical language to the House version, essentially assuring that the measure will be the subject of a referendum.
Now that the ban seems all but a certainty, I'd like to raise a few questions that I think don't get enough time in the debate. However, let me preface these questions by saying that I'm glad to see states pursuing these avenues in the democratic process, rather than relying on litigation to try and resolve what is clearly a political question.
Now, the questions:
1) Why do we refer to a religious ceremony and the civil ceremony by the same name? That is, our belief that "marriage" is between a man and a woman comes from the Bible. Why don't religious conservatives object to the fact that two raving atheists can be married just like the same as those married before God?
2) Given that we allow two atheists to have their civil commitment called "marriage", how is letting two God-fearing women get "married" any different?
3) Assume, arguendo, that a bill was proposed to call only religiously recognized unions marriage, and all other unions "civil unions" -- do you think opposition to gay "civil unions" would be as strong?
4) Why do we care if two people of the same sex make contracts with each other? If "Adam and Steve" want to exercise power of attorney for each other, why do we care?

I'm actually genuinely interested in responses, since I've always sensed there was something about this debate I was missing. I mean, we've let Brittany Spears get married twice -- clearly the institution of marriage could use some work. How about we attach a marriage education plan to the gay marriage ban?


Blogger Virginia Centrist said...

You're not missing anything. This debate is silly. Anyone who honestly thinks that we should prohibit contracts between same sex people is an idiot. Plain and simple.

10:11 AM

Anonymous Kaveh S. said...

I just can't get over this idea that "our belief that "marriage" is between a man and a woman comes from the Bible." The pre-Christ Romans engaged in marriage between a man and a woman, complete with the notions of dowery, divorce, etc. Do people seriously believe that the Romans (and the Greeks, Phoenicians, etc.) who engaged in heterosexual unions did so because of a Jewish influence? "You know, we don't really dig that whole one vengeful God/original sin/Ten Commandments spiel, but this marriage idea. . .those Jews really have something there." Give me a break.

Now, as to the notion that "anyone who honestly thinks we should prohibit contracts between same sex people is an idiot." Do we not regulate contracts all the time? Even contracts of marriage. Can two first cousins enter into a civil marriage in (most states) of this country? Can a mother and son enter into a civil marriage in this country? If same-sex marriage were legal, would it be ok for a father and son to get married? The answer, in our society, is justifiably and correctly HELL NO! And that's because our laws reflect the societal norms of the time. The human race (regardless of how long you think we've been here) has always been engaged in an evolution of morality and societal law, whether we were in a religious society or not. Waldo Jaquith posted about the "confidence of being correct" on the notion of gay marriage; while this may hold true on an individual basis, society is never "correct". Our norms change; our standards change; our laws change. This idea that it is fundamental for homosexuals to engage in contracts of marriage seems to me flawed; why are the above incestuous not fundamental? This is not, of course, intended to equate homosexuality to incest. Rather, it is (just like interracial marriage was at the time) possibly in opposition to the societal norm. I firmly believe that homosexuals should be allowed to enjoy the benefits of civil marriage. But we need to keep in mind that this "movement" to legalize gay marriage has been going for an extremely short period as compared to the centuries (millenia?) where the concept of homosexual union has been out of the norm. I hope we can forgive society for not being there yet.

And there's my $.02.

11:19 AM

Anonymous Waldo Jaquith said...

Kaveh, if there's any restriction preventing a mother and child from forming a marriage-like contract, I don't know what it is.

My in-laws have contracts with my 92-year-old grandmother-in-law that, now that I think about, substantially simulate marriage, although the contract provides more power to her caretakers than to her, of course.

I've never heard anybody complain about such contracts. I can't see why they would -- it's none of anybody else's business.

2:52 PM

Blogger James Atticus Bowden said...

Mad: We had a long thread on this on Bacon's Rebellion Blog.

The two ceremonies are called marriage because they refer to the same thing from two perspectives: one religious and one civil.

Persons in the Commonwealth may enter into all sorts of contracts with one another. But, dressing up some contracts to call them civil unions or some other term for faux marriage are both unnecessary and a small legal step to get homosexual marriage.

Forget the religious stuff. It isn't a religious issue because it isn't within the churches and subject to church administration. Churches can 'marry' whoever they like.

The Commonwealth has a compelling interest to say what marriage is and isn't. Marriage and families which naturally result from marital sexual relations are an institution which predates the Commonwealth, yet remains a foundational institution of our culture.

Marriage since we got a legislature (which met in a church) in 1619, has been between one man and one woman.

No culture from the tiniest tribe to the greatest civilization has had marriage as anything other than between man and woman. The numbers of men and women vary with polygamy and polyandry among the choices. Even declining civilizations which promoted homosexuality never confused homosexual sex with marriage.

No one has ever been confused about marriage being between two different genders for 5000 years of recorded history - until social Liberals got befuddled today. The Judeo-Christian standard for at least 2000 years has narrowed that to one man and one woman.

2:58 PM

Blogger Elliot said...

James, this still seems to be a bit of a tautology: Marriage is between a man and a woman because that's what it is and that's what it has always been. The question a lot of us are lodging, I think, is Why? Why does it marriage to be that, and why would it be harmful for that definition to change?

3:53 PM

Blogger GOPHokie said...

B/c it would destroy what marriage is. If gay marriage is allowed, why couldnt you "marry" your dog? Or how about mother and daughter? Sure these ideas may be sick, but couldnt they be used as a vehicle for something like health insurance benefits or car insurance?
Also, many consider marriage to be a sacred bond that only exists between certain people. Sure, that bond is violated more times than anyone would care to talk about. Even so, the basic idea is the same.
I know this explanation is not good enough for someone who supports gay marriage, and thats ok.
Each side can present their opinions and let the people decide.

4:54 PM

Blogger Doug said...

I'm with Virginia Centrist on this one. This whole debate is silly. The idea that Republicans are promoting the idea that the state should tell people what kind of private contracts they can and cannot enter into tells us just how little the idea of individual liberty is respected among modern politicians.

5:01 PM

Blogger Elliot said...


Ok, but here's what I don't understand about that slippery slope argument. You couldn't "marry" your dog because the dog can't consent. Similarly, you couldn't "marry" a 10-year-old because the 10-year-old couldn't reasonably consent. But if you have two consenting adults who aren't doing anything that puts an undue burden on society (e.g. incest which can produce health-related problems for the children), how is it society's concern?

Also, you say that many consider marriage to be a scared bond that only exists between certain people. Sure, that's true. But again, Why? If the answer is (as I have found it to be most times) religious, then aren't we imposing religious beliefs on secular government by limited marriage to its religious definition?

I know we're not likely to convince each other one way or another, but I would like to fully understand this line of reasoning.

5:09 PM

Anonymous Greg said...

Thanks Elliot.

I'm torn between being tolerant of other people's beliefs/desires and wanting some sensible restraints for "Marriage".

Contracts are contracts in a court and sanctioned by law, so sensible restraints are good. I want people to get the benefit of civil unions because I think it's just fair. That's the State. Marriage is a social custom and should be defined by us, not the State.

You put it in a way I haven't been able to, so I'm going to use your words. You won't get a lot of recognition, footnotes, etc, though.

7:52 PM

Anonymous Anonymous said...

Ok, so what's with the "marry your dog" crap? Really, aside from consent issues, it is impossible to marry a dog. First, in what language would the ceremony be conducted? Second, how would you document the age of the dog on the health insurance policy (since that's a fear of rightwingers...fully-insured gays)? Third, would keeping your doggiespouse locked up in a pen on or a lease violate domestic violence laws?

See, this is exactly why sane people should totally walk away from this gay marriage thing. This is such a false issue. Come on? Marry your mother or sibling? Truly, if someone is that much of a sicko, how is Constitution going to matter to them? Also, that would totally screw up soap opera plots...

-- Conaway

8:42 PM

Anonymous Kaveh S. said...

Waldo--I think we both recognize that the real issue here isn't the power of contract formation. Civil marriage, while by no means the same as religious marriage, is still a whole hell of a lot more than a simple contract. This "civil union" concept is red herring; it's simply a marriage by another name, and because the word marriage is a loaded word for so many people, it makes them a bit more comfortable with the idea. To their credit, the homosexual community (along with the more, shall I say, "tolerant" members of our society) has advanced this label of "civil union" and embraced the notion that all it is is a contract, and that has somehow fooled the some of the intolerant (i.e., the Prez) into reluctantly buying it. Change "civil union" to "contract guaranteeing eternal damnation" and some more begrudging supporters would come out of the closet (pun intended). As long as it's not "marriage" (*shudder*). Which it is. You can't tell me that what the homosexual community wants is equivilant to the arrangement between your in-laws and grandmother.

James says to forget the religious stuff, and then says that "The Judeo-Christian standard for at least 2000 years has narrowed that to one man and one woman." I think people on the extreme sides of this are looking at it the wrong way. The anti-gay-marriage folk are simply begging the question when they state that marriage is between a man and a woman because, well, you know. The pro-"civil union" side either a) honestly believe that this is simply an extension of simple contract law (or, as I think, faking it to appease the other side), or that b) the other side is being unconscionable for thinking that gay people shouldn't get married.

Elliot--I see you points, and they are very good ones. I ask you, though (as much I as hate arguing through analogy): if a man wants to have 3 or 4 wives, should society stand back and accept it? I think you answer may be no, and if it is, do you think your reasons are really that much better than someone who is opposed to gay marriage?

"That's the State. Marriage is a social custom and should be defined by us, not the State." Who is the state? We are. We decide the laws, we decide public policy, and we do this based on what we think is right and just. It doesn't always work and very often takes time. But this idea that the law is divorced from societal values is ridiculous. If it were, why would we have legislatures constantly changing them? Why is pot illegal? Because we, through our representatives, have made it so. The law is a reflection of our society, or a reflection of what the morons we put in power thinks we want.

8:51 PM

Anonymous Anonymous said...

Conservatives who understand how important it is to limit the state's involvement in the minutiae of human relations ought to rush to the battlements to defeat this badly drafted amendment. the Virginia Bill of rights is an important historic document. We are now being asked to use it to constrict rights away from a certain class of persons and confine them to another class of persons. If "marriage" as a word or concept is the hang-up, use the statutes to define marriage. (Well, we've already done that). A rose by any other name would smell as sweet. But this amendment to a fundamental structural document defining the limits we as a people put on the state goes way beyond that concept. It is pure politics and pure ignorance wrapped up in a little unsavory ball. Come on, guys, tell the pols that you're not buying it, that we're going to keep government in its box and we're not going to let passions over the mores of the time turn us into gullible louts who will trample on a sacred document. I am a Christian, heterosexual, married (male to female) conservative Republican parent. I'd vigorously oppose gay marriages in my church. It's not my concern whether homosexuals (by the way they're sinners. by the way, so am I) enter into contractual relationships enforceable in the courts of the state to provide care, convey property, enforce obligations at the dissolution of their relationship etc. I've got bigger fish to fry. Most of those fish are not of this world, I am taught. But the constitution is no place to work out my religious issues. The next thing you know, we'll have an amendment to ban the Unitarians from speaking ill of the Trinity.

9:05 PM

Anonymous Tugboat Phil said...

To those of you who say that marrying a dog is silly, there was a story on mainstream TV news about a British heiress who travelled to Israel to "marry" a dolphin. And it was treated as a "well isn't that just nice" kind of funny story.

How can you look at some of the ridiculous court decisions that are handed down and not see that 30 years from now, since we've changed the definition of marriage, it will be just as easy to change the definition of "consenting." Why not change the definition of "adult?"

A 14 year old girl can get a surgical procedure (abortion) without parental notification. That pretty much makes her a de facto adult. I don't see 14 year old boys getting similar treatment legally.

It is really easy to dismiss these ideas and toss them into the "never going to happen" bin. But I grew up in a world where me a my friends could walk down the street carrying our .22s to go squirrel hunting. No one called the police or reported us to school psychologists (which also didn't exist).

Incrementalism is the tool of social do-gooders. We have gone from a world where homosexuality was considered a mental disease to the darling of prime time TV. What changed? The behavior is still the same. And what started as "please tolerate us" has now become "completely accept us" or we'll prosecute you for hate thought.

Homosexuals can already get married. They just have to do it with someone of the opposite sex. If you want to legalize these unions, pick a different word.

9:13 PM

Blogger GOPHokie said...

All I can figure is the country is just a bunch of gay haters. Obviously, according to some of you there, is no good arguement in favor of banning gay marriage, so why do you guys have such a hard time convincing people otherwise?

9:29 PM

Blogger James Atticus Bowden said...

After the SCOTUS's Lawrence decision creating a right to sodomy, a fellow in Ky (?) petitioned the court to marry his adult sister and a fellow in Utah petitioned to make his 'marriage' to many women legal.

Justice Ruth Bader Ginsburg lobbied to reduce the age of consent to 13. So, why not 10 or 8? That is what the Pediophiles want.

Aren't pediophiles a class of persons just like homosexuals? If not, why not? What constitutes a class of persons when their personhood, apparently, is distinguished by the sexual behavior. One sexual behavior is love your dog, sheep, horse etc (FYI, Conaway).

Kaveh, sorry if I gummed up my point against the red herring of 'theocracy'. You are right with "Who is the state? We are. We decide the laws, we decide public policy, and we do this based on what we think is right and just. It doesn't always work and very often takes time. But this idea that the law is divorced from societal values is ridiculous." That is why the Judeo-Christian standard is relevant. We are formerly Judeo-Christian consensus culture. Now it is conflict with the Liberal Human Secualarism as a world view. Or 'make it up as you go along' culture of feelings and being.

7:51 AM

Anonymous Waldo Jaquith said...

Justice Ruth Bader Ginsburg lobbied to reduce the age of consent to 13.

No she didn't, James. Even Eugene Volokh confesses that it's just not true --- she never said or wrote any such thing. It's a Republican myth.

8:35 AM

Anonymous Kaveh S. said...

James--We are/were a Judeo-Christian consensus culture that at some point over the previous 300 years:
-subjugated the rights of women
-considered negroes personal property
-believed that putting 8 year olds to work was acceptable
-believed allowing pre-pubescents to get married was acceptable

there is no need to go on, is there?

There is a reason theocracies don't work. Society is a creature of progress; religion. . .not so much. Religion is a fine system of governance for an individual, but society must progress. Look at the Arab world. Islam isn't substantially different from Judaism & Christianity (in fact, it is most certainly in the Judeo-Christian tradition). The primary difference between the Arab world and us is that they believe that their religious dogma should dictate their rule of law. Relgion influences us, and we influence the law.

Phil said: "Incrementalism is the tool of social do-gooders. We have gone from a world where homosexuality was considered a mental disease to the darling of prime time TV. What changed? The behavior is still the same." Women are still the same. Children are still the same. Blacks are still the same. What changed? Society has progressed.

9:29 AM

Blogger Madisonian said...

James (and others):
Thank you for the comments -- I think this debate has done a reasonable job fleshing out the issue. However, I think we have moved away from the primary question, which implicates the Contracts Clause as much as the Bill of Rights.

James said, "The two ceremonies are called marriage because they refer to the same thing from two perspectives: one religious and one civil."

My difficulty is, I'm just not sure that is right. It's one thing to say what we call soccer and Europeans call football are the same game by a different name, even though that ignores differences in attitudes towards the sport, its prevalence, etc.

But I can't shake the feeling there is something different between a religious marriage and a civil one. Legally, they are the same. That is, the legal benefits/responsibilities of marriage are the same whether you get married in a church or a courthouse. And what are those benefits?
(1) Being allowed to file taxes jointly
(2) Getting the benefit of your spouse's health insurance
(3) Survivor rights
(4) An assumption of paternity and shared parental rights
(5) Assumed power of attorney

Certainly, there are others which I'm sure my shorthand list has left out. And both civilly married and religiously married persons would say there is more to a marriage than that -- things like love, loyalty, support, etc.

But having said all that, isn't there something different in the attitude towards marriage that is (or should be) signified by the decision to get married before God? If one is religious, shouldn't they take a compact that is not only a civil commitment but a promise before God more seriously? My point, made badly, is that we as a society view the two kinds of marriage differently already. If that is the case, then it is less of a stretch to imagine extending those legal rights to others.

James makes the point that the Commonwealth has an interest in regulating who receives those benefits, and he is absolutely right. And, in the case of incest, pedophilia, and bestiality certainly there is a compelling governmental interest to protect society from that behavior.
But from a purely legal standpoint, civil marriage is nothing more than a set of legal rights we bestow upon two people at their request. Can the government really refuse to allow some people to gain those rights just because we don't like their choice of partner? Remember not too long ago we tried to deny those rights because we didn't like the skin color of their partner. What makes a denial based on gender different?

10:00 AM

Anonymous Anonymous said...

Of course, to believe any of the posts opposed to the amendment you have to believe that the amendment will void contracts - and that is NOT true! Courts in Ohio, Michigan and Louisiana, which have similar amendments, have already ruled that the contract argument is a joke.

11:10 AM

Blogger Virginia Centrist said...

It's different text than those amendments...duh...

1:59 PM

Blogger Doug said...


The contract argument is an important part of the debate but, even if it were not an issue at all, I could not reconcile such a fundamentally anti-liberty amendment with my own personal belief in individual liberty. I may not agree with the personal relationships that people enter into, but unless they are actually causing harm to someone or involve persons incapable of giving valid consent, I don't believe that I have the right to tell them they can't enter into those relationships at all.

4:02 PM

Blogger James Atticus Bowden said...

Kaveh: You don't understand the role that worldview of the consensus culture means to the Civilization and Nation that rises from it.

The laundry list of past sins of American Civilization and the Nation - USA - doesn't prove anything. It doesn't establish a relationship or foundation for figuring out what is right and wrong.

The Judeo-Christian culture - as it is at any point in time (which is a normal curve of opinions on any issue) - informs individuals - again on a normal curve which includes people who are neither Jewish or Christian. Still with me?

Therefore, opposition to making up marriage because traditional marriage has conformed to the Judeo-Christian culture doesn't constitute theocracy. Go to Iran to see theocracy at work.

"Islam isn't substantially different from Judaism & Christianity (in fact, it is most certainly in the Judeo-Christian tradition). The primary difference between the Arab world and us is that they believe that their religious dogma should dictate their rule of law. Relgion influences us, and we influence the law." What utter nonsense. You need to read the Koran, the Bible and a lot of history.

Islam hasn't had a Renaissance, Reformation, Englightenment or Great Awakenings - which our culture has benefited from.

Islam is a hodge-podge of paganism, Judaism, and Christianity that the illiterate prophet slapped together. You really get the sense of that when you read the Koran. His religion calls Jews and Christians infidels and demands their suppression as well as calling them people of the book. The Muslims desparately want to be part of the Abrahamic religions, and they are culturally, but not theologically.

If you know the God of the Jews and the Christians vs. the God of the Muslims you would see the difference.

One God had his Son sacrificed for the people to be saved and go to Heaven. One God has people sacrifice their sons in suicide to be saved and go to Heaven.

Far afield indeed. But, that logic isn't logic. Gee, Virginia had slavery so it should have homosexual marriage now.

5:09 PM

Anonymous NoVA Scout said...

In most European countries, there is a civil cermony (mandatory for legal recognition of the marriage) and a religious ceremony (optional). That dichotomy, while a little more visible there than here, reflects the reality of marriage in the United States. The individual states have certain interests in the administration of the marriage relationship: e.g., protecting parties on dissolution, distribution of property at death of one of the parties, protection of the welfare of offspring of the union. The churches have their own concerns, largely of a theological nature. These interests and functions are parallel, but distinct. Two atheists can go to the county courthouse and get "married" just as "legally" as two ardent Anglicans (just to use my favorite example).

I'm still searching for the need for this amendment of our Virginia Bill of Rights. Look forward to hearing more. At some point perhaps a rationale will emerge. I'm still not seeing it clearly.

Conservatives, properly educated and grounded, are strong civil libertarians and are supsicious of state intervention in individual pursuits. However the individual conservative comes down on this issue, the analysis should have a strong civil liberties component and a very clear notion of what the proper limited functions of government is in its relationship to individual activity. It certainly cannot be that the civil marriage concept must have government intervention to conform that concept to religious sacramental concerns. That apporach is very threatening to religion and to religious liberty.

8:40 PM

Blogger James Atticus Bowden said...

NoVa: Conservatives, properly educated and grounded, are traditionalists for what works and is best from the past and embrace good change to shove the best into the future. They are suspicious of state intervention to overturn tradtional orthodoxy for institutions that work best - because people who reject, and often hate, the religious thought providing the worldview for that orthodoxy want it changed - because of their 'feelings'.

In a representative democracy the majority rules. If the majority are Liberal Puritans in their worldview, as in Massachusetts, then the source that shaped their thinking is irrelevant. Even if it is stuffing Pagan values down everyone's throat. Likewise, a Judeo-Christian worldview if it is the majority isn't threatening to anyone's religion and religious liberty.

When 40% of the references to why anything should be thus and so in the debates around the Declaration and Constitution refer to the King James Bible was that a threat to religion and religious liberty?

The state has a compelling interest to regulate marriage for the social contract with all Virginians. The definition of those regulations falls to majority rule respecting inalienable individual rights. The civil marriage, thus, can and should reflect the consensus culture - which until 1962 was Judeo-Christian - or the majority when the consensus is shattered - which remains Judeo-Christian for a majority of Virginians.

If the majority were Muslim, then the civil standard would be up to 4 wives.

11:37 PM

Anonymous NOVA Scout said...

JAB: What the hell happened in 1962? Other than the Cuban Missile Crisis.

10:33 AM

Blogger James Atticus Bowden said...

1962 is the SCOTUS (Engle v Vitale) no prayer in public schools ruling. Bad ruling, but a good demarcation for when the Liberal Secular Humanists had enough strength to really start making their Civil War (ACW II). Just as some folks date WW IV - from the Iranian hostage crisis (1979) or the 1st attack on the Trade Towers (93) or the 2nd 9-11-01.

10:08 PM

Anonymous NoVA Scout said...

I was afraid you might say that, but didn't want to presume. I view that decision as one that protects religious expression from the state and strenthens religious life in America. I want the government to keep its mitts off my religion and I don't want government-paid schoolteachers having the slightest role in matters as important as religious instruction or theology. They are not qualified and that's not what we pay them for. I think a lot of Conservative Christians feel the same way.

9:05 AM

Blogger James Atticus Bowden said...

Nova: I agree that the schools shouldn't be leading prayers - like the Lord's Prayer we said in my Virginia elementary school.

The issue is the gross abuse of power to misconstrue the 1st Amendment establishment clause.

The 1st Amendment establishment clause is about Congress and the Federal government having a particular Christian sect as the official church. Under the Constitution the States could do as they please - and did. The problem of school prayer should have been fixed by the state legislatures.

It's a symbolic date anyway - a demarcation line when the Courts, lead by SCOTUS, really started abusing their power for social engineering and the Culture War was clearer to see.

8:09 AM

Anonymous NOVA Scout said...

If you agree with the substance, you might want to find a different line of demarcation. The Court decides when it decides. That the states might have eventually sorted it out is not a reason for the Court not to act. I doubt that in 1962 or perhaps even now many state legislatures that were willing to intervene to halt a state-mandated prayer. I'm just not accustomed to seeing that kind of backbone from state legislators. There are many issues that have benefitted from Supreme Court intervention, both as to substance and timing. Probably a few that have been made worse also. but that's the way the founders set up the system.

10:41 AM

Blogger James Atticus Bowden said...

The Founding Fathers didn't set up the system for SCOTUS to make law. Neither did they make up a system for SCOTUS to violate the Constitution or in the words of Justice Frankfurter, "the Constitution is what I say it is", make it up as they go along. Just because they have gotten away with the abuse of power doesn't make it right. It's time for the legislatures and executives at every level to stand up and assert their Constitutional duties. You are so right that it may take spinal transplants.

1962 remains useful for my shorthand.

11:25 AM

Anonymous TrvlnMn said...

The difference between the words "Marriage" and "Civil Union" is the difference between having government benefits and not having them.

Example: Two lesbians get married (or have a civil union) and via artifical insemination one of them has a child. Both of them raise the child as primary caregivers (having taken the needed legal mesures via adoption of the non biological parent to insure both are legally recognized as parents of the child). And then one parent dies.

Now if this were a hetrosexual traditional "married couple" the spouse and/or minor child would be entitled to draw social security benefits of the deceased parent.

But because it is most likely a civil union, with a lot of extra legal hurdles to go thru to grant each partner the same rights a married couple get by default, because it is a civil union.. the child is denied the benefits that would be granted to the "traditional" family.

Religion is the equivalent of "smoke and mirrors" in this issue.. it's something to distract you from the real reasons politicians have to oppose equal marriage rights for same sex couples. That reason is pure and simple- Money.

And personally I'm in favor of equal marriage rights for same sex couples. Give them the same rights to mess up their lives as hetrosexual couples have.

6:47 PM

Anonymous NOVA Scout said...

JAB: I'm sure all or virtually all members of the Court over the past 30 years (if not longer) would agree with your initial points in your most recent comment. So what's the deal? This isn't controversial. The Court can't act extra-constitutionally and can't make up law out of whole cloth. In a situation like Government-mandated prayer or post-Plessey rulings on racial segregation, they seem to have been doing their job.

9:29 PM

Blogger James Atticus Bowden said...

NoVa Scout: You make our differences in opinion clear.

The Judicial Branch is the third POLITICAL branch of government. The Courts are made up of all manner of men and women who can do things that are extra-constitutional, un-constitutional, a-onstitutional, stupid, wrong and damaging to the Republic - and they do too.

Roe v Wade was made up law - whole cloth.

What a shock that the people who make up law because no one will stop them, wouldn't dispute not having the power to make up law. Tyrants are like that. Remember the Divine Right of Kings?

8:32 AM

Blogger James Atticus Bowden said...

oops the tyrants would dispute being told they DON'T have the power to legislate and execute laws.

8:34 AM

Anonymous NOVA Scout said...

JAB: I always thought monarchs were great champions of the divine right of kings. My point was that the federal judiciary, in front of which I spend a good deal of my time, would not assert that they have authority to create or execute the law. Sure, there are controversial, even wrong, decisions, but they have a way of getting rectified thorugh the political process if they run contrary to the democratic consensus of what is proper in this Republic.

There are substantial checks on judicial activities. If there is democratic consensus that they have strayed, adjustments can be made through constitutional amendment or, in some cases, statutory clarifications. In extreme cases they can be impeached. The appointment and approval process controls who gets on. They're hardly as "royal" as you make out. If the citizenry is up in arms about it, Roe v Wade could be remedied PDQ by an amendment clarifying that there is no right of privacy or some such thing. That this hasn't happened suggests that, despite strong vocal opposition from some quarters, Roe is not as objectionable to some politicians as they would like the voters to think.

I agree that Roe was a bad opinion. But its reliance on the concept of foetal viability means that it has been undermined by technology, I think it likely that it will be revisited and modified in the near future.

10:19 AM

Blogger Gary47a said...

Now (in 2013) that Perry v Hollingsworth (the California challenge to marriage bans) is waiting SCOTUS' conclusion, I just found your blog. I have felt for several years that Olsen and Boies picked the wrong case. Challenging the Michigan and Virginia bans seem far riper. I don't see how court could uphold these. They seem Prima Facia violations of the Federal contracts clause. Any lawyers care to respond to this civics class student?

5:21 PM


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