August 6, 2010

"Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him."

Writes Dahlia Lithwick, seemingly knowingly...
I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Justice Kennedy? Hot sauce to go with those words?...
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.
Justice Kennedy is certainly very important in the prediction of what the Supreme Court will do, and Walker may have written with the intent to influence him, but let's give Sandra Day O'Connor the respect she deserves. The line "moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation" is from O'Connor's concurring opinion in Lawrence — and Walker's opinion is clear about that (on p. 133).

No other Justice joined O'Connor, who rested on the Equal Protection ground. Justice Kennedy wrote the majority opinion relying on the Due Process ground — talking about "the heart of liberty" being "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." That's what Lithwick refers to in her last sentence about writing "eloquently about dignity and freedom." But the O'Connor opinion in Lawrence will be more important in determining the same-sex marriage question, because that isn't a request to be left alone. It's a request for equal legal status — for recognition from the state.

O'Connor wrote:
Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. 
Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” 
... The Equal Protection Clause “ ‘neither knows nor tolerates classes among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
Let's give Sandra Day O'Connor her due. She said some things no one else said.

ADDED: Indeed, the language from Kennedy's Lawrence opinion that speaks "most eloquently about dignity and freedom and the right to determine one's own humanity" is itself a quote from the plurality opinion in Planned Parenthood v. Casey — which was jointly written by O'Connor, Kennedy, and Souter.  Here's Kennedy in Lawrence:
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

73 comments:

KLDAVIS said...

I said it when the decision came down and I'll say it again, O'Connor's opinion in Lawrence is far more defensible than the majority's.

t-man/wurly/henry buck said...

Later in her opinion, however, O"Connor wrote (for those who may not follow the link):

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

El Pollo Real said...

Althouse: I don't think you'll ever give this topic a fair shake because you're too biased about the subject matter for personal reasons.

If you could just put that aside for a moment--can you not see any disadvantages of overriding public will and ruling by judicial fiat?

Others are trying to do this by saying "I'm all for gay marriage but..."

Others, including some prominent law bloggers, are saying nothing.

AC245 said...

Consider this an open invitation to anyone supporting Walker's argument to explain why bans against polygamy / polyandry / polyamory / multiple marriages should not also be considered unconstitutional under his ruling.

(Perhaps someone can offer a more substantive and persuasive rebuttal than sunsong's Fuck them, they should have to go to court and start over at square one! from the earlier thread today.)

KLDAVIS said...

El Pollo Real said, "[C]an you not see any disadvantages of overriding public will and ruling by judicial fiat?"

And, that's why I disagree with the majority in Lawrence. They construct a right out of thin air to reach the result they want. O'Connor is far more honest in her Equal Protection Clause analysis.

If the government is going to be in the marrying business, all citizens must be treated equal. To be honest, I'd prefer the government didn't have anything to do with marriage.

Lem said...

She said some things no one else said.

Good catch professor.

Lem said...

If you could just put that aside for a moment..

That's the definition of personal pollo.. there's not much room to put it aside ;)

rhhardin said...

Who was the last guy the MSM was saying was eloquent.

Chase said...

The California Constitution:
The Full Text of Article I. Section 7.5 :

Only marriage between a man and a woman is valid or recognized in California.

I'm having a hard time seeing "same-sex marriage ban" in those words.

Stupid me.

And El Pollo Real is correct about Professor Althouse. I believe she should recuse herself from the discussion.

As my whimsy leads me.. said...

A majority can be overwhelmingly wrong, as with Jim Crow laws. I don't know that this qualifies, since in California, gay people have the same rights granted to marriage through civil unions. What they want to do is change not just the law, but the dictionary. Definitions do change over time, but has anyone ever changed a definition through a lawsuit? What does anyone really gain?

On a different track, many states prohibit cousin marriages. Would all of the supporters of gay marriage support repealing those laws? The stated reasons for these bans are not supported by science, at least not anywhere near the level that is claimed. It is a fairly recent custom to altogether avoid cousin marriages.
(And don't be smart-alecky. Nearly everyone is descended from cousin marriages. To quote Trooper, "Just sayin'")

Toy

El Pollo Real said...

That's the definition of personal pollo.. there's not much room to put it aside ;)

Notice I tried to cast it in a sujunctive or hypothetical mood instead of the imperative.

Lem said...

And El Pollo Real is correct about Professor Althouse. I believe she should recuse herself from the discussion.

When someone doesn't agree with us.. sure.

Lem said...

Notice I tried to cast it in a sujunctive or hypothetical mood instead of the imperative.

Motion denied.

I'm the wise latino ;)

sunsong said...


jon stewart mocks reactions to walker’s ruling

Ann Althouse said...

"Althouse: I don't think you'll ever give this topic a fair shake because you're too biased about the subject matter for personal reasons. If you could just put that aside for a moment--can you not see any disadvantages of overriding public will and ruling by judicial fiat?"

You're wrong. I would be happy to let this matter ferment in the culture and be dealt with over time, state by state. But I know the case law, and I don't see how this equal protection right doesn't follow. You have to stretch to keep this step from coming. Also, as a matter of prediction, I know enough about Anthony Kennedy to be willing to bet a lot of money on the outcome.

The Ghost said...

Jim Crow laws ... what judicial ruling overturned those ?

hmmm .... stumped ?

the majority fixed that the correct way ...

oh and how did the majority fix the Dread Scott decision ?

stumped again ? ah ha ... trick question ... the majority COULDN'T fix that one, the court had to ...

Lem said...

I know enough about Anthony Kennedy to be willing to bet..

Remember the Guantanamo.

rhhardin said...

But I know the case law, and I don't see how this equal protection right doesn't follow.

If you get an absurd result, something is wrong in the chain.

People on the outside look at that way, anyway; and it's their Constitution.

jaltcoh said...

If you could just put that aside for a moment--can you not see any disadvantages of overriding public will and ruling by judicial fiat?

But isn't the point of a constitutional right that it's countermajoritarian -- it can't be violated just because most people want it to be?

(Of course, you might not think this should be a constitutional right at all, but then that's your real complaint, not that it would invalidate a referendum.)

Lem said...

If they had used equal protection to plug the oil leak in the gulf, instead of golf balls, mud and concrete..

tough crowd.

Fred4Pres said...

You're wrong. I would be happy to let this matter ferment in the culture and be dealt with over time, state by state. But I know the case law, and I don't see how this equal protection right doesn't follow. You have to stretch to keep this step from coming. Also, as a matter of prediction, I know enough about Anthony Kennedy to be willing to bet a lot of money on the outcome.

I welcome your input on this. You may be right Ann, but that does not make it right. As that old dead white dude said:

Paul Zrimsek said...
"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions." -- Oliver Wendell Holmes, Baldwin v Missouri (dissenting).

8/6/10 2:20 PM


Of course OWH is the old dead white dude. Paul is still very much alive!

But I do love this quote from OWH too:

“I should like to see any kind of a man, distinguishable from a gorilla that some good and even pretty woman could not shape a husband out of.”

Fred4Pres said...

Not that you need my welcome to opine on your own blog. What I meant to say is I really welcome your insight because I think you provide good information (even if I still hope this terrible decision gets overturned).

Not because I wish to ban same sex marriage. I don't. I would vote for it. I wish to ban courts constantly using the 14th Amendment to legislate from the bench. Sometimes it is warranted (Lawrence is a good example) but this time it definitely is not. Just because I may like the outcome doesn't mean I am going to approve of the process.

Mortimer Brezny said...

Also from O'Connor's concurrence:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

PatHMV said...

Wait, I'm confused...

You, a law professor, are writing about... constitutional law?

;-)

Fred4Pres said...

What these dudes said...

Lem said...

Thanks for that tea party link fred.

im going to pass it along.

Krumhorn said...

I agree that the outcome is probably not much in question. That doesn't make it right. The logic that legislation that is somehow an expression of moral disapproval that impacts a particular group and therefore unconstitutional is so slippery (and even wrong!) that it leaves room for endless abuse.

Justice O'Connor concluded as a matter of dicta that traditional marriages were not vulnerable to her equal protection reasoning because there is a rational basis for the state to "preserve the traditional institution of marriage". Nonetheless, she was clearly echoing Steven's argument that viewing "a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." And she made clear that the practice in question was "closely correlated with being homosexual".

Justice Scalia pointed out the defect of her argument by observing that, "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples".

And therein lies the problem. Any particular court can go either way depending not on the law but on the preferred outcome by describing a law as preserving a tradition or expressing moral disapproval.

If society's moral judgments can be the basis for discarding its laws if the purpose is to disadvantage a particular group, can we then rely upon the court to extend that same logic to laws that have the same effect when the moral outrage of libruls is involved?

For example, when the top 2% of tax payers are paying 50% of all taxes, we constantly hear that the rich need to be required to pay yet more as a matter of "fairness". Someone else observed that one of the great moral questions of the day must be how much more should the wealthy be paying before we can all agree that they are finally paying their "fair share".

Isn't that kind of policy specifically intended to disadvantage...even punish... a particular group merely because the record reflects moral outrage that that the rich are doing better than the rest of us? In fact, isn't the right to private property one of the most fundamental rights we have? At a minimum, doesn't a soak the rich tax policy require "a more searching form of rational basis review"?

Would lefties on the court be willing to say "Our obligation is to define the liberty of all, not to mandate our own moral code" in determining that leftie moral outrage that the rich own a disproportionate share of the nation's wealth is not a sufficient reason to deny basic property rights that are essential to our liberty? We certainly can't say that the rational state interest is to raise money when when Christine Romer and her husband published a very interesting study in 2007 that shows that tax increases actually cause a reduction in GDP by a multiple of 3 and no significant increase in treasury revenues.

What about limits on "obscene" CEO compensation? Or "windfall profit" taxes on oil companies?

Isn't it entirely clear that these are moral judgments that result in laws that "single out one identifiable class of citizens for punishment that does not apply to everyone else"?

That's precisely what is wrong with this kind of legal analysis.

We often have laws that we don't like, but that doesn't mean that there is an appropriate court remedy that would supersede the political arena where most such disagreements belong. Generally, it's better for the courts to butt out and let us duke it out. It may take more time, but the end result is far more satisfactory than an undemocratic ukase handed down from looselugnut librul judges who want to short-circuit the political process because they are "impatient of democratic change".

There is nothing good that can result from the Court dictating the outcome of this debate.

El Pollo Real said...

But I know the case law, and I don't see how this equal protection right doesn't follow.

Not trying to be snarky but your response instantly reminded me of Albert Einsteins's famous quip:

You do not really understand something unless you can explain it to your grandmother.

I mean, it's fine for you and other legal scholars to say that it's all in the case law-read it. But that's not how things fly in this country last I heard.

I have to go clean house right now but I'll be back later and maybe write some more.

Lem said...

Generally, it's better for the courts to butt out and let us duke it out.

you make some salient points there krumhorn..

Paul Zrimsek said...

I mean, it's fine for you and other legal scholars to say that it's all in the case law-read it. But that's not how things fly in this country last I heard.

Especially seeing as how two people have already quoted case law-- from the very same case!-- showing that the sainted O'Connor herself had no trouble seeing how this equal protection right doesn't follow.

phil said...

Ann Althouse wrote

"You're wrong. I would be happy to let this matter ferment in the culture and be dealt with over time, state by state."

So Ann, you do not see the civil rights imperative here, but instead are "happy" to wait for some future majority to bestow equality on this minority. What if that takes fifteen or twenty years? I guess this generation of gays and lesbians will just have to be the final one to endure less than full equality.

Mark O said...

Polygamy is next. Were I an opponent of gay marriage, I would bring in busloads of those polygamous sects from Texas and Colorado and Utah and march them in Bel Aire.

After Loving v. Virginia there is no going back. It's just when, not if.

Mark O said...

"You do not really understand something unless you can explain it to your grandmother."

That's so freaky. Albert Einstein was my grandmother. Damn.

Krumhorn said...

Phil wrote:

So Ann, you do not see the civil rights imperative here, but instead are "happy" to wait for some future majority to bestow equality on this minority. What if that takes fifteen or twenty years? I guess this generation of gays and lesbians will just have to be the final one to endure less than full equality.

We have all kinds of laws that many like or even believe to be unfair. But that is no argument that any purported unfairness, in every instance, is appropriate for a court remedy.

It seems that our times are plagued with the hubris that every presumed defect must be immediately fixed and that we have the wisdom to make the fix.

Sometimes, these things take time, and we have to bear up and soldier on.

Of course, that is no excuse to ignore manifestly unjust practices, and America is great because our system has permitted us to correct some historic wrongs.

I don't see how this particular issue comes remotely close to being compared to slavery or racism or a woman's right to vote. Particularly, since our culture generally evidences considerable genial tolerance for the personal choices of others.

......

......

Krumhorn said...

We have all kinds of laws that many like or even believe to be unfair

Of course, I meant we have all kinds of laws that many don't like.....

I happen to think that our graduated income tax is unfair and unequally impacts me in comparison to others and punishes success.

But I don't expect any particular sympathy on the point so I shall just have to bear up and soldier on until the political climate changes sufficiently to get some relief.

I'm not holding my breath since many believe that my property rights and liberties aren't as important as I believe them to be.



.....

phil said...

Krumhorn wrote "I don't see how this particular issue comes remotely close to being compared to slavery or racism or a woman's right to vote."

First, there is not even parity between the slavery that African Americans endured for two hundred years and women being denied the right to vote. But they both deserved to be remedied.

I also believe gays and lesbians being denied equality also rises to this level. That is why I asked Ann the $10,000.00 question. Doesn't she see the historic need for this equality to be rooted in the Constitution and not just bestowed by some future enlightened majority? I hope she does not dodge the question.

phil said...

Or does Ann view equality for gays to be on same level as Krumhorn's taxes being too high and both should be decided by a majority/legislative fix?

Fen said...

Our laws are nothing less than the Codification of Morality.

Krumhorn said...

Phil wrote:

I also believe gays and lesbians being denied equality also rises to this level. That is why I asked Ann the $10,000.00 question. Doesn't she see the historic need for this equality to be rooted in the Constitution and not just bestowed by some future enlightened majority? I hope she does not dodge the question.


She didn't dodge the question in the least. Apparently she disagrees with you that this is some historic wrong that demands a declaration of constitutional rights.

She said she would be perfectly happy for this to percolate as a political matter and to be resolved as such over the course of time by the states.

And I applaud the wisdom that is behind that sentiment. It's a gigantic mistake for the court to waste the currency of its credibility to bigfoot the issue and hammer out yet another amorphous "right" that can only be found if you poke around in the penumbras and the elusive liberty rights of substantive due process or out of some equal protection theory, the legitimacy of which, many will not accept.

It would be colossal arrogance to reach the point where 4 libruls and 1 squish take upon themselves the power to short-circuit what is basically a political discussion to overturn centuries of honorable tradition on the pretext that the tradition is just another expression of bigotry and moral disapproval of the bitter clingers directed toward a small group who insist on receiving a public confession of acceptance and approval rather than mere tolerance.

This is falls into the category of things where there's not enough justice to go around.


...........

Penny said...

"This is falls into the category of things where there's not enough justice to go around."

Bingo, Greenhorn! Oops, I meant, Krumhorn…

I was just telling my heavenly grandmother tonight that America is going through her “green” period.

Americans have gotten GREEN with envy, and “Justice = $$$’s”.

El Pollo Real said...

Can two guys get married and call it "matrimony"?
Isn't that etymologically perverse? linkage.

El Pollo Real said...

*waves* at Penny

Penny said...

To those of you who feel Althouse isn’t objective enough because she has a gay son, I think you’re ASSUMING bias in this case. The only thing I notice is that Althouse is more than willing to TALK about something that is important to her son, AND to the long term best interests of her country.

I have never admired her more.

This is a very smart, very empathic,… mother, lady, American, human,… working through the “personal vs the greater good”…and right before our eyes.

Maybe all of us “regulars” aren’t ready to “go there”, but clearly, Althouse is not only ready for objective dialogue on this sensitive topic for her, her family and her country, but she is willing to put up with this rag-tag group of Althouse admirers who skirt her issues and our own in the process.

Penny said...

"*waves* at Penny"

Will your *wave* result in my hair getting wet?

That's a... "Nuh uh", chicklit.;)

Do I look like a blonde with bangs?

Meerkat said...

The idea that someone with personal involvement in an issue should recuse themselves from discussion is just dumb.

Saint Croix said...

Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

Jurisprudential slop. Groups of persons? An orgy is a group of persons. Bank robbers are groups of persons. She is attempting to piggyback a group of people wanting to engage in conduct--homosexual sex--and say that this is discrimination against people. It's fundamentally dishonest.

The equal protection clause forbids discrimination against people. You can't reduce people to their DNA, their skin color, their naughty bits, and discriminate against them. But you can discriminate against conduct.

It's almost obscene how the left attempts to define opposition to gay sex as racism or sexism. By doing so the left denies free will. They insist that human beings are biologically determined, and that we are not responsible for what we do.

Really, the illogic is infuriating. Is pedophilia a sexual orientation? Is necrophilia? Why must the majority of our country accept conduct we deem immoral on the grounds of biological urges?

The Elephant Man has an urge to mate. Does this biological urge give him a right to rape, since no woman will accept his advances?

No, sorry, the Elephant Man has to be celibate, despite his orientation and all the urges of his body. He has to be celibate because rape is immoral, and he's too damn ugly to get consent. It's a tough break for the Elephant Man, but damn if I'm going to agree that he has a constitutional right to immoral conduct on the grounds of his biological urges.

Does this result in inequality for the Elephant Man? Not legally. None of us can rape. The law applies to all of us. The Elephant Man has a special problem, a biological problem, but the equal protection clause does not say, "fix the unequal and make them equal to us."

A Justice interpreting the equal protection clause must determine how human beings are equal (hint: free will) and must make sure this equality is not being denied. That's all. Nothing more, nothing less.

Saint Croix said...

I can't stress enough the importance of distinguishing betweeen who we are and what we do. The Christian concept is "love the sinner and hate the sin."

To violate this understanding, to say that Christians must love the sin, is to invite war.

Saint Croix said...

Do black people have an orientation towards crack cocaine? The NAACP says yes. Thus we must reform our cocaine laws. Powder = whitey. Crack = blackie. Opium = yellow, I guess. Ask the left, they'll tell you. We're not people anymore. We're objects the left places on an ideological map.

Penny said...

I am not so sure Sandra said what she said. But if you accept that she said that, don't be surprised when this topic ceases to be about gay marriages, but all of a sudden becomes about illegals

Steal her song, and fill in the blanks as needed.

"Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons."

Sorry. I am too lazy to check out the accuracy of her quote. I see it on Althouse, I hang here, it's real enough or Althouse would say otherwise. Right, Althouse?

OK, woman to woman... Didn't one of our Supreme Justices just say that when a law is ignored, like the sodomy law is in Texas, that means that their reason for "ignoring" MUST mean it's a nasty moral, "hate" thing?...Otherwise, the state would have arrested sodomists in the first place?

Silly me, sitting here and worrying that if this argument holds, there is no way to hold off the same argument when applied to illegal immigrants.

Yes, the subject is different, but the conclusion by a supreme court justice may be just the same....

In the same way that Texas never held up their sodomy laws, the US government never held up their immigration laws.

While no one would quarrel that both Texas and the Federal Government did these "heartfelt" things out of tolerance,....it is that same heartfelt "tolerance" that Ms. O'Connor will use to state her shame-on-you morality case.

If Texas is seen as "moralizing away their hatred" for not prosecuting sodomists, then, the US Government can use the same "excuse" for illegal immigrants.

In other words...There are laws that the state of Texas and our federal government did not choose to follow because it "didn't suit" exactly.

The laws should have been repealed eons ago, but, hey...we all agree, sorta, that sodomists in Texas should be ignored in 2010., and that the millions of illegals who have been here for years should be ignored just a little bit longer....

Repeal laws in America?

The problem is that Sandra Day O'Connor uses Texas as an example of morality laws gone right eventually, yet dead WRONG on a national level.

She concludes that laws, not followed, MUST, therefore, be only about the majorities' prior view of morality, hence they have nothing to do with "Equal Rights" legislation.

Compelling argument. Leading where exactly?

Penny said...
This comment has been removed by the author.
Penny said...

Sound thinking, but how will this play out?

Paul Zrimsek said...

"At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

42.

EDH said...

Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

I haven't read the full opinion yet, but has Walker built a strawman of hetero chauvinism?

Conspicuous by its absence, notice in that argument he left out whether a relationship between a man and a woman is inherently different and therefore a rational basis on which to legislate.

El Pollo Real said...

Saint Croix wrote: By doing so the left denies free will.

Bingo!

Ann Althouse said...

"Maybe all of us “regulars” aren’t ready to “go there”, but clearly, Althouse is not only ready for objective dialogue on this sensitive topic for her, her family and her country, but she is willing to put up with this rag-tag group of Althouse admirers who skirt her issues and our own in the process."

You know, I'm actually not sensitive about this, I don't take it *personally*, and I don't feel like I have to make an effort to put up with people taking different positions on these legal issues. No one is expressing contempt for gay people, and if they did, it wouldn't make me mad, because it would be like getting mad at trolls. I wouldn't blog if I were so easily taunted by things people write on line.

Julie said...

Saint Croix--
I think pedophilia is next (maybe polygamy, except people seem to hate Mormons rather a lot, so I think the moral disapproval of Mormons will carry the day for now). Did you see McArdle's piece a while ago about how heroic somebody (I think it was a member of her family or friend of her family) was for being a pedophile but not following through and molesting children? So very heroic! To be able to suppress those biological urges! Once *not hurting someone* is heroic, it's only a matter of time before the bar is lowered all the way down.

It's a slippery slope, yes, but unfortunately, we seem to have lost the ability to reason and make the fine moral distinctions that you must make in order to stop the ball rolling down the hill.

I think necrophilia is still too icky for most people, but give it time. After all, who does it hurt?

Trooper York said...

Most of the regulars don't really give a shit about this topic if you want the honest truth.

They just join in to be polite.

Revenant said...

It's almost obscene how the left attempts to define opposition to gay sex as racism or sexism. By doing so the left denies free will. They insist that human beings are biologically determined, and that we are not responsible for what we do.

If women really wanted to, they could be men. If black people really wanted to, they could be white. The notion that women and black people are the way they are because of *genetics* is a denial of free will.

Revenant said...

Did you see McArdle's piece a while ago about how heroic somebody [...] was for being a pedophile but not following through and molesting children? So very heroic!

The article is here. What she said was that people who are sexually attracted to children, but keep that impulse completely suppressed, are being virtuous. She did not say that her family friend was "heroic", she said that he deserved to go to prison for buying kiddie porn.

Anyway, the idea that pedophilia will be legalized is ridiculous. The trend over the past decades has been one of ever-increasing hysteria over the idea of people under the age of 18 being sexually attractive to adults. We even imprison 18-year-olds for having naked pictures of their boyfriends and girlfriends. Society has lost all common sense on the subject.

mtrobertsattorney said...

Issue on Appeal:

Does a political community have a compelling (or reasonable) basis for giving special recognition in its civil law to those relationships that form the class of committed relationships between a male member of that political community and a female member of that political community when the laws of biology, to the exclusion of one male and another male, and one female and another female, require one male and one female to bring into existence 1) a new member of that political community, and 2) a new member of the species?

Saint Croix said...

If women really wanted to, they could be men.

I think what you meant to say is that if women really wanted to, they could attach a little thingy to their thingy. Good luck getting sperm to come out of it, though.

Also women can't flap their arms and fly like a bird.

When I spout off about free will I don't actually mean to suggest that human beings are not animals in a specific biological class, homo sapiens. We have a biology that is very useful come baby-making time.

There's not one sex or three sexes or four sexes. There are two sexes.

Sex is far more determinate than race. Which is why sex discrimination is often rational and race discrimination almost never is. Unlike sex, race is completely bogus. Race is a human invention that tells us nothing. Ask a liberal how many races there are sometime. It's hilarious. They have no idea. Race is a myth.

Jeremy said...

el pollo - "...can you not see any disadvantages of overriding public will and ruling by judicial fiat?"

The latest national polling I've seen says the opposite. And the Prop didn't exactly win via a landslide anyway.

The entire process was tainted and thoroughly skewed by the millions of dollars thrown into the lead up from the Mormon church...as if they should be telling others how to run their lives.

A.W. said...

To be blunt, saying that moral disapproval is not a basis of law is ludicrous.

And once again, I lay down this challenge. Now, I assume for the sake of argument that the Supreme Court will never legalize incestuous gay marriage—that is, two brothers marrying.

So I ask gay marriage advocates this: on what basis can you ban gay incestuous marriage while allowing gay marriage?

A.W. said...

By the way, I think it is high time we got back to what the equal protection clause was really about.

When introducing the original draft of it, Thaddeus Stevens said that it was his dream that “no distinction would be tolerated in this purified republic, but what arose from merit and conduct.”

Gay sex is conduct.

A.W. said...

Jeremy

> The latest national polling I've seen says the opposite. And the Prop didn't exactly win via a landslide anyway.

First, not the polling I have seen.

And as for not winning in a landslide let me remind you, that gay marriage couldn’t summon a majority in California during a democratic wave election.

Saint Croix said...
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Saint Croix said...

Discussion of pushback

The Crack Emcee said...

If a lawyer walks up to the Supremes and addresses this issue - this issue: without mentioning discrimination, religion, morality, beliefs, or any of the other nonsense y'all are insisting on using as a wedge - he or she will be the next Thurgood Marshall.

This whole debate, on the current bogus terms of debate, is a lie.

Michael Ejercito said...

If moral disapproval is never a rational basis for legislation, how would victimless crime laws (laws against prostitution, gambling, drug use, drug dealing) be constitutional?

(I understand that victimless crime laws may be constitutional even if moral disapproval is not a rational basis under limited circumstances, like prohibiting prostitution, gambling, or drug dealing in public schools, for example.)

And I should note that the Supreme Court had actually previously upheld a law that discriminated on the basis of sexual orientation. In Michael M. v. Superior Court , the Supreme Court upheld a law that effectively prohibited underage boys from having sex with underage girls, but not underage girls from having sex with underage boys, against an equal protection claim alleging gender discrimination.

I had mentioned this case before on other blogs, primarily to demonstrate that gender discrimination is upheld in cases where analogous racial discrimination would be struck down. But upon further contemplation of Michael M. and the law it upheld, it turns out the law in question also discriminated on the basis of sexual orientation. For since the law in question only prohibited sexual conduct with a female under 18 years, but did not do the same for males under 18 years, that means that the underage male partner in heterosexual relations with an underage female would be subject to prosecution, while the underage male partners in a homosexual relationship are not subject to prosecution under this law.

Thus, I fail to see how the 14th Amendment is insufficient to strike down a law imposing criminal penalties on the basis of gender and sexual orientation, while it is sufficient to strike down a law that merely uses different names on the basis of gender.

Anonymous said...
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Clifford Rosky said...
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Clifford Rosky said...

I don't doubt that during her tenure on the bench, Justice O'Connor has said many things that "no one else said" -- but the passages that you and Ms. Lithwick quoted from her concurrence in Lawrence were not among them!

In your quotation from O'Connor's concurrence, you included several of her quotations from other opinions, without including any of her citations. Normally, this wouldn't matter. In this case, however, it changes everything: Almost every one of O'Connor's sentences that you quoted was followed by a citation to Romer v. Evans. As I'm sure you know, it was Justice Kennedy who wrote Romer v. Evans.

Although Ms. Lithwick may have made a technical error by attributing one quotation to Kennedy, instead of O'Connor, she was generally correct to give Justice Kennedy credit for the underlying ideas. Indeed, both O'Connor's opinion in Lawrence and Judge Walker's opinion in Perry may be plausibly read as appeals to Justice Kennedy, which are based on Justice Kennedy's own words.

Sam said...

AC245 is correct. If Prop 8 is unconstitutional on the Walker decision, so is a ban against polygamy. Does the Constitution allow a Muslim man to marry 4 wives? What about a 40 year old man marrying a 13 year old girl who has reached puberty? Why not?? This is the belief of over 1 Billion Islamic people and Sharia Law? The reason why Walker is wrong is that being gay is not a protected class under the Constitution; thus no equal protection issue. As to Due Process, there is a rational basis as the structure of marriage to have a family and having both sexes is best for a child. If being gay is a choice, it is not Constitutionally protected. If it is biological, let's find a cure and protect the gay people until the cure.