The Supreme Court
I just got off the phone with my old law professor and dear friend, Fred Ragsdale. Some of the comments had set me thinking about the Court and I knew Fred would be able to help me organize my thoughts. Fred is the literally the most brilliant person I know. He writes constitutions for emerging nations, and is often called upon for his expertise on Constitutional issues.
At any rate he said that this argument that the Court should not “legislate from the bench” is essentially incorrect. (Let me also say that Fred is a Republican not a gooey liberal like me.) He pointed out that the Court was applying strict constructionist standards when they ruled in the Plessy case. They applied the law as written rather than seeing if the law actually met the standards required by the 14th Amendment. He also made the point that when the Court gets it wrong these decisions are always reversed by a later court.
So, back to why the Court _should_ legislate. There are certain issues that are so divisive and difficult that state legislatures and Congress are unwilling to deal with them. The members lack the will to go against the strong feeling of their constituents lest they not get reelected, and so the issues will not be resolved. But when you are appointed to the bench for life such concerns no longer affect you. Fred talked about Brown vs. Board of Education. This was an issue that was not going to be resolved by state legislatures, certainly in the southern states, or by Congress and so the Court stepped in.
As to the issue of gay rights. Marriage has traditionally been left to the states so the Court will probably not rule on the 14th Amendment issue, but where they will start to force at least acceptance is with the Full Faith and Credit clause of the Constitution. In other words, a marriage that is legal in Boston or Trenton N.J. will ultimately have to be recognized by Arizona or Alabama. There is an exception to the full faith and credit clause when something offends the public norm, but he feels the gay rights issue will not reach that threshold. Here was some of Fred’s analysis as to why that is the case: If you can guarantee the exact same rights that are bestowed by marriage by the preparation of numerous legal documents in all fifty states — then there is nothing essentially unique about “marriage” in the civil sense.
Melinda
June 21st, 2007 at 6:09 am
It seems to me that at least one place where a federal decision will be needed soon is income tax. What happens when a same-sex married couple in Massachusetts file a joint return? As far as I know, the federal tax code does not explicitly define who count as a married couple; if you’re married according to the laws of your state, you’re married in the eyes of the IRS. If the IRS disallows joint filing status to a same-sex couple, is there an appeal route from the tax courts to the Supreme Court?
Not that I’m 100% sure the IRS will disallow it. The tax code has odd points of fairness, in the narrow sense of playing by the logic of its own rules.
June 21st, 2007 at 9:22 pm
If a man wants to marry a chicken, he ought to be able to. “To love and to honor, to obey and not cook…” you see, like that.
My government ought not legislate this. Marriage should have stayed a religious element. The moment my government said “Hey, we’ll give tax breaks to this class of citizen” they paved the way for the ruination of marriage. Government legislated morality…as pertaining to matters of love? Oh, for Pete.
My stance is this: want to regulate marriage? Then leave it to the churches to do that and stop government incentives. Essentially, remove it from “legal” status altogether. Now, when this is accomplished, the church can allow or deny whomever they so deign worthy. Fine, I’m good.
But dole out government perks for what is deemed to be sanctified arrangements of love…I don’t feel the government should have say in matters or unions of love. Thus, everyone should be open to such perks. Cluck, cluck.
-Rhae
June 23rd, 2007 at 10:12 am
“The members lack the will to go against the strong feeling of their constituents lest they not get reelected”
– this is best described as “democracy”, or “majority rule”.
Why on earth _should_ legislators “go against the strong feeling of their constituents”?
That’s what legislators are elected to do: to carry out the will of their constituents. To do otherwise is evil, treachery, betrayal, usurpation of the rights of the people.
“and so the issues will not be resolved.”
– ah… you mean, will not be resolved the way _you_ want, rather than the way the _people_ want?
Really, Melinda, you should step back and look at what you’re saying.
This is precisely the attitude that has enraged so many people — and they’re _right_ to be enraged.
Their democratic franchise has been stripped from them. Revolutions have been fought over that.
June 23rd, 2007 at 11:01 am
For example, I’m in favor of gay marriage. I’d love to see it enacted into law everywhere, by the relevant (State) legislatures, after democratic debate and voting.
But I’m _not_ in favor of having it imposed against the will of the people, by the courts or any other agency. Majority rule is not the only political principle of democracy, but it _is_ the single most important one. It’s the basic feature which distinguishes democracies from other forms of government.
And to say that the Constitution requires recognition of gay marriage is just… well, not true. I’m not willing to pretend otherwise just to get the policy I want.
Process is more important than outcomes here. It’s not legitimate to smash up the means by which our society arrives at consensus in a fit of frustration because one’s own opinion is in the minority.
This has been done far too often in the past couple of generations, and it’s undermining the general acceptance, the legitimacy, of our political system.
Furthermore, one of the merits of having a federal system is that it allows for diversity — real diversity, not the fake version you get in some circles, where people are allowed to look different but all have to believe the same things or be punished and silenced.
It’s not _right_ that Massachusetts should be able to force people in Utah to live the way people in Massachusetts want to. Or vice versa.
Let a thousand flowers bloom. Let people in their various states and communities be _different_. Including differences other people (you and I, for example) find repugnant or wicked.
I’d go stark raving bonkers if I had to live in a small Baptist-domianted town in southern Arkansas. Fortunately I don’t have to.
Probably a lot of the people there would find the Upper West Side or San Francisco (or Santa Fe) intolerable — and fortunately, they don’t have to live in _those_ places, either. They have their preferences and I have mine and we’re each free to seek the environment that suits them best.
If you find the consensus in one area intolerable and can’t persuade people to change it, then goddamned well _move_ to somewhere you find more agreeable.
There are limits to this — free speech and universal suffrage have to be enforced everywhere, which is why smashing up Jim Crow was justified — but they are, and should be, very _broad_ limits. Let… people… be… different.
June 24th, 2007 at 6:56 am
There are limits to this — free speech and universal suffrage have to be enforced everywhere, which is why smashing up Jim Crow was justified — but they are, and should be, very _broad_ limits. Let… people… be… different.
I lately reread The Moon Is a Harsh Mistress, and remembered being perplexed at the passage where Manny goes to jail for miscegenation during his tour of Earth—and then checked and found that the Supreme Court only struck down miscegenation laws a year or two after Heinlein wrote that novel. As part of the wave of civil rights decisions. How do you feel about that particular Supreme Court decision? Did the Supreme Court have proper legal ground to make it?
And, if it did, how is same-sex marriage not an issue where a similar decision is legally warranted? What do you see as the differences between the two cases?
July 6th, 2007 at 11:40 pm
“And, if it did, how is same-sex marriage not an issue where a similar decision is legally warranted? What do you see as the differences between the two cases?”
– miscegenation laws violated the provisions (as intended) of the post-Civil-War ammendments. Those ammendments were intended to equalize the legal status of ex-slaves.
There is just no possible justification for finding a gay-marriage right in the Constitution. To say so is to assume that Alien Space Bats somehow put it in, and neither the Founders nor anyone else for 200 years _noticed_.
It’s a blatant lie.
July 7th, 2007 at 8:57 am
Steve, this is probably useless because despite my American law degree and the fact that I was a specialist on Constitutional Law you never listen to anything I say; but for the benefit of other readers I’m going to set the record straight on the Equal Protection Clause in particular and the Constitution in general.
While the initial intent of the 14th amendment was to rectify the decades of subjegation of black Americans the whole point of the Constitution is that it is to be applied to all citizens. The language says “all persons born or naturalized in the United States”. It doesn’t say all black persons.
The fifteenth amendment did specify race, color or previous condition of servitude as the criterion by which voting rights could not be denied. Which made it necessary that the XIX amendment be passed to include women.
This is a good example of why the framers tried to keep the clauses fairly vague. When you read Madison’s notes from the Continental Congress it is clear that they knew they were writing a document that had to endure for decades and centuries. They had to leave room for interprtation and change.
In fact the ERA (Equal Rights Amendment) which was being pushed so hard in the 1970’s was ultimately defeated because the courts, congress and many legal scholars realized that we had a mechanism by which to protect those rights. It was the Fourteenth Amendment with the Due Process, Equal Protection clauses. If these clauses were meant to apply only to people of color than an ERA would have been a necessity.
Due process and the Equal Protection Clause apply evenly to _all_ citizens. Marriage is a legal institution which allows people certain property (under that I include children), and medical rights by the simple act of going before a Justice of the Peace. Gay couples can with great difficulty and great expense approximate these rights by hiring lawyers to draft various documents, but it is less certain their rights under these circumstances will actually be honored.
An example. I have friends who are a long time lesbian couple. They have adopted two little girls from China, and have been raising them for 7 years now. Certain Southern states are attempting to pass legislation that will removed adopted children from gay couples. If those laws pass no amount of legal adoption papers will protect that couple. If these laws become wide spread my friend and her partner and children will be forced to flee the country. That is not my America. If that is what America has become then I am ashamed.
Everything I have described above is a classic equal protection and due process violation. You are treating an entire class of people differently from the rest of the citizenry and you are working a financial hardship upon them.
So, to all my readers. The post which has elicited this response from me is bluntly and simply wrong.
July 7th, 2007 at 11:54 am
One more bit of explication. Of course the Congress in 1870 wrote the fifteenth amendment the way they did because if they had said “all persons” woman would have had the right to vote at that moment. Of course they were sexist pigs — they didn’t know any better — but they sure knew how the Constitution is interpreted, and they sure didn’t want mere females exercising the vote.