Oct 13, 2014

Doing As Little As Possible On Same Sex Marriages

     It appears that the Department of Justice is still telling the Social Security Administration to do as little as possible on same sex marriage. The approach is still state by state, waiting for each frivolous appeal to end. This could drag on for months.


Anonymous said...

"frivolous appeal"? Really? Protesting the overturning of a couple of thousand years of precedent by the actions of politically-motivated judges in defiance of the legislative will of the people is frivolous? Wow, welcome to 21st-century America.....

Anonymous said...

Legislative will of 13% of the voting populace here in NC, but sure, the will of the people.

He means it's frivolous because with the way our legal system works, the appeal is frivolous. The 4th Circuit ruled same sex marriage bans are unconstitutional. That ruling applies to all states in the 4th Circuit. Including NC. That ruling was appealed to the Supreme Court (the only and last place the ruling could be appealed), but that court decided not to rule, leaving the 4th Circuit decision in place. The end.

If you want to hear a great rebuttal of the thousands of years of tradition argument, I strongly recommend you listen to Posner's questioning in the recent Wisconsin/Indiana cases. As far as "in defiance of the legislative will of the people," well, that's how our system works. If the courts see a legislative act they find unconstitutional or otherwise contrary to law, they step in an invalidate it.

Your beef here isn't with the system of law (I'm sure you'd be all in favor of courts stepping in an invalidating laws you don't find constitutional), but with what the judges involved find "constitutional" and "unconstitutional." Sorry, man, but the times are a-changing and very few people on the bench have a strict textualist approach to constitutional interpretation. Get over it before your blood pressure gets the best of you.

Anonymous said...

To 10:24 am--exactly my point--this is post-Constitutional America, where the laws are only what the judges(and the President) say they are. What goes around comes around, and in 20-30 years, it may be others' oxes being gored. Consider the changes in abortion and gun control since the 70's.

Anonymous said...


I'm not sure that the 3 commenters above actually understand our legal system and I'm completely sure that they don't understand the Constitution.

First one who can point to a place in the Constitution that forbids marriage between two people of the same sex wins.

I know, it's sort of a trick, no one can win because there is NO SUCH CLAUSE. Regardless of how many people think that it's right or wrong, it's not unconstitutional. Also, using the "will of the people" argument is just misdirection. The Constitution is not a popularity contest.

Anonymous said...

I am 10:24 and I am a licensed attorney. I know plenty about Constitutional law, but decided to keep it basic in my first post. I was going to go into a lot of detail re: the merits of Eastman's arguments in his motion to Osteen, but decided against it. But basically (and this really applies even to the textualists), it boils down to there is a ton more to Con law than the text of the constitution. There's years and years of court cases and precedent and defined terms and yada yada yada. The lay people who love to scream that "such and such isn't here in the constitution so it's forbidden" or left to the states or some such are neglecting that whole side of the law, which is infinitely more massive and important than the text of the document.

Either you accept con law jurisprudence, or you resign yourself to using only the text of the document. Pray tell, how does the constitution deal with the internet? Cars? Electronic banking? Aggression that isn't towards a state or state actor and isn't really a war? Exactly. At some point, even textualists are going to have to do some interpreting. And in the cases where no interpreting is needed, there would be so many areas where everything would be left up to each individual state. I don't know about you, but look around at your local leaders and tell me you're comfortable with those clowns running most every aspect of government aside from defense and international trade.

And 9:08, your whole "it's not in the Constitution" is pretty much the same stupid argument the aforementioned con law expert laypeople use, only less accurate because it's even more asinine (and logically inaccurate) to say that things not prohibited by the constitution are necessarily not prohibited than to assert that things not permitted by the constitution are necessarily impermissible.

Anonymous said...

@4:59...i agree, there is more to the Constitution than the actual text. Can you point to any other interpretation/case law/etc. that would prohibit gay marriage?

Anonymous said...

The issue is not whether the Constitution prohibits gay marriage (especially as it says nothing about marriage at all), but whether the Constitution prohibits the States (through either the legislative bodies or amendments to state constitutions) from passing laws prohibiting such conduct.

Whether gay marriage should or should be legal, acceptable, etc. is a very complicated queston that goes far beyond what any of us can express in a comments on a blog.

However, at least get the legal issue correct.

Anonymous said...

The issue is about whether marriage, as a fundamental right (that has long been settled by the Court), can be limited to a certain class of people, namely same sex couples.

It is about States' rights, and the key issue is whether States have some rational basis (assuming homosexuality is no type of suspect class) or some stronger basis (if homosexuality is some sort of suspect class. This gets really dicey because the Court has a bunch of different types of suspect classes and tests regarding laws singling out the various types of suspect classes) to deny a fundamental right to that class of people.

@ 8:35

just because I dumped on your reasoning doesn't mean I disagree with your contention; I believe laws preventing same sex marriages are unconstitutional violations of the equal protection clause of the 14th amendment, (for federal laws the equal protection clause would be reverse incorporated to the federal gov't via the 5th amendment by way of reverse incorporation). This would hold even if homosexuality was not a suspect class due any protection, as the Wisconsin/Indiana cases showed the opposition can't even assert any POTENTIAL rational basis for prohibiting homosexual marriage that isn't overbroad or underinclusive (listen to Posner).

Further, I believe homosexuals constitute a suspect class due some sort of protected class or quasi-protected class status because I see them meeting the four criteria of suspect class. Thus, it is even more obvious that laws banning their marriages would fail to satisfy whatever heightened level of scrutiny they would be entitled to.

Is that good enough for you?