One area of miscommunication in the marriage equality debate is about words like “bigot” and “homophobe.” Marriage equality opponents, quite understandably, don’t like being called bigots and homophobes. They might genuinely have nothing against lesbians and gays; some of them have good friends who are lesbian or gay, and some of them are lesbian or gay themselves.
The problem here, I think, stems from two different definitions of “bigotry.” Marriage equality opponents think “bigot,” in this context, means “someone who hates lesbians and gays.”
Speaking for myself, that’s only one possible meaning of “bigot” or “homophobe.” Another meaning, which is how I tend to use those words in the context of the marriage equality debate, is “someone who favors an unequal legal status for lesbians and gays.” And by that latter definition, it makes perfect sense to describe those who oppose marriage equality as homophobes and bigots.
This is no different from how I view any other issue involving bigotry. To reuse an example, consider someone in the 1960s who favored laws and rules excluding Jews from fancy country clubs. That person may have had many close Jewish friends; perhaps they only favored the exclusions because they valued the club’s longstanding traditions. But regardless of this person’s personal love for Jews, they nonetheless favored one law for gentiles and a different law for Jews, and that made them an anti-Semite.
Put another way, our opponents think that being a homophobe is only about what’s in their heart. I think that being a homophobe can be about what’s in one’s heart, but it can also be about what’s in one’s policies.
Of course, it may make marriage equality opponents – some of whom I quite like and respect – uncomfortable or unhappy to be described thus. I’m sorry about that; but truth doesn’t cease being true just because it makes some people uncomfortable. If the stigma bothers them that much, they can avoid it by changing their minds and favoring equality between gays and straights..
I think that courts must interpret the words written in the document considering the context in which they were written. Without context, words have no meaning. (And I mean “context” broadly: the historical milieu, statements of those who voted for the document, and any other indications of what those who voted intended to mean by those words.)
On the 9th amendment, I see it as having a farily limited meaning: “The fact that we just listed some important rights held by the people doesn’t mean there aren’t other important rights that they hold.” I don’t think it was intended to generally imply a presumption that people have lots of individual rights.
It’s always a tricky business figuring out what individual rights people should have, and to what extent, because there are other important considerations that weigh against them. We’re seeing that kind of conflict with the War on Terror: We’re trying to balance our personal liberties with measures necessary to keep us safe. People disagree on how much safety is worth how much liberty, but very few would deny that some tradeoff is worthwhile.
Here’s a more tangible example of what the 9th amendment says: Suppose I were to argue, “You don’t have a right of privacy, because it isn’t specifically in the Constitution.” The 9th amendment is designed to enable you to counter that argument. Just because a given right isn’t in the Constitution doesn’t mean that that you don’t have it. But that’s not the same thing as saying that you DO have it. You may have lots of rights not in the Constitution (including, perhaps, a right to privacy), but they don’t come from the 9th amendment. It just opens the possibility of more rights.
And thinking about it a little more, you’re right to distinguish the 9th from the 10th amendment. The 9th is about rights (meaning negative rights), while the 10th is about powers.
I have to disagree w/ Ben on whether or not there is a question of SSM being a right. In my view SSM is simply a subset of Marriage (in the same way that mixed race/nationality/religion marriage is a subset). Not something wholly other. I say this because, in a legal sense, Marriage is the right (or privilege if you prefer) to be joined to another person in terms of things like finances, healthcare and so on. Procreation, for example, is not required for a marriage to be legally recognized. Neither is a match of religion, nationality or race. So why should a match of 2 types of genitalia be a requirement?
I guess that you have successfully bypassed the constitutionality argument by raising the question of whether SSM is part of legally recognized Marriage or an entirely seperate issue. If we can agree that IF SSM is a subset of Marriage (like race/religion/etc) that it is constitutionally protected we can move on to the next question:
Why do you think that SSM is outside of the issue of legal Marriage? And not simply a TYPE of legal Marriage?
Jake: I would call marriage a privilege and not a right. There’s a big difference in my mind.
Suppose that the federal government sets an import tariff on steel that is twice as high as the import tarrif on tomatoes. Is this unfair to the tomato growers? Maybe. But maybe the tariff difference is important to protect domestic defense-related industries. Or maybe foreign governments are using tax dollars to support their steel industries, so it’s only fair that we support ours with protective tariffs. Or maybe we’re just making our tariffs mirror some other country’s tarrifs.
Whatever the reason for the difference in tariffs, do the tomato growers have an equal protection argument that the government can’t discriminate among industries like that? I believe those cases were tried in the late nineteenth century, soon after the 14th amendment was passed. They are generally called the Slaughterhouse cases. I can come up with some cites if you want, but they’re pretty dull reading, IIRC.
The gist of those cases is that the 14th amendment doesn’t require the government to distribute goodies equally. It can favor one industry over another, it can favor one region over another, etc.
So that’s what I think of when you talk about the 14th amendment and SSM. If we take a “government goodies” theory of marriage, then the 14th amendment is irrelevant. The government can generally discriminate in its distribution of goodies, just as it does with tariffs, military bases, highway funds, and all the other goodies it distributes. The limit on that principle is the “rational basis test,” which only requires that some rational person could think that making that discrimination in the distribution of goodies was a reasonable way to accomplish a worthwhile governmental objective. (I’m no constitutional law scholar, mind you. This is what I remember from law school.)
Is there a rational basis for limiting marriage to opposite-sex couples? I think so. Opposite-sex couples are the ones who will produce children. Governments have a legitimate interest in encouraging and rewarding the responsible production of the next generation of citizens and taxpayers. So the government subsidizes responsible child production, just as it subsidizes steel. There’s no equal protection problem with that.
And I mean “context” broadly: the historical milieu, statements of those who voted for the document, and any other indications of what those who voted intended to mean by those words.)
In the historical context, that:
1) The Federalists were having trouble convincing people to Ratify the constitution without a bill of rights.
2) The dissenters were suggesting various amendments that might remedy the problem that they feared (e.g. that they constitution as written by Madison would curtail thing they thought were rights.)
3) And the Federalists figured out the weren’t going to get the consent of the governed without drafting the sort of Amendments they asked for.
Is it remotely plausible, that amendment IX might include these rights?
Amendments Proposed by the Virginia Convention
June 27, 1788
That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people in some such manner as the following:—
1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
—-
Hmmm.. this wording even sounds like Rad Geek. He thinks there are rights that can’t even be even if we consent! (the idea!)
Ben,
The analogy doesn’t scan. Industry vs class of people. I just don’t see how tariffs are comparable to marriage laws in that I don’t see tariffs as privileges. But maybe I’m not looking at it correctly. If we want to try for an analogy (and I warn you, I think that they’re all horrible in the context of blogs & comments) I think that Drivers Licenses are a better match.
The “right” to drive is not a right, it’s a privilege. Would it be legal to not allow people of Hungarian to drive? Would it be legal to prohibit gay people from driving?
Let me quote what I think is relevant from the 14th ammendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
Notice the word “privileges” in there? If, indeed, marriage is a privilege it is covered by the 14th ammendment. By allowing OSM but not SSM states are making and/or enforcing laws (1man1woman) that abridge the privileges of citizens of the United States. So what am I missing?
As we’ve now gone back to constitutionality I’m going to skip your last paragraph for now. We all know that I disagree vehemently w/ your opinion and logic on the matter.
Gaargh!
Should be “people of Hungarian descent…”
Ben, I realized I forgot something:
On the 9th amendment, I see it as having a farily limited meaning: “The fact that we just listed some important rights held by the people doesn’t mean there aren’t other important rights that they hold.” I don’t think it was intended to generally imply a presumption that people have lots of individual rights.
On reflection.. I have another question. I see that you don’t think it implies people have “lots” of individual rights.
Does it imply the people retain even oneunenumerated right?
Regarding the “rights vs. priviledge” angle, using the “marriage is a privilege” argument against SSM doesn’t hold water. Just because something is a priviledge does not mean that it’s reasonable to categorically deny access to earning that priviledge to a group of people. Having a driver’s license is a priviledge. Having a business license or hunting license is a privilege. We don’t deny those priviledges to GLBT people or any other group, and if we tried to based on the fact that “it’s a priviledge not a right” we’d be ducking some serious legal tomatoes.
Oops, Jake Squid beat me to it. Great minds and all that. ;-)
Oh, and no comments about my spelling either!
Regarding the “rights vs. priviledge” angle, using the “marriage is a privilege” argument
I believe the 14th amendement has been interepreted to give equal access to priviledges.
So, one “constitutional right” that may extend to SSM would be equal protection. (It was equal protection that the supreme court used to throw out miscegenation laws.)
While it is correct that one sometimes curbs some rights inlcuding that to equal access, the Supreme Court generally hold a high standard. So.. you cannot cry “fire” in a crowded theater, cause a stampede resulting in death and injury to those in the building, and then claim “I have freedom of speech”. However, lots of very, very offensive speech is permitted. (The Nazi’s got to march in Skokie Illinois, the heart of the Chicago area Jewish community. Chanting.. yep. They got to.)
The bar required to curb the constitutional right to free speech is high.
The bar required to curb the constitutional right to equal protection is also high.
There is no doubt that Ben needs to explain WHY equal protection does not apply.
But.. I hope he doesn’t skip my two IX amendment questions while explaining why the XIV amendment does not apply. :-)
Lucia: I think that people have lots of rights that don’t appear in the Bill of Rights or elsewhere in the Constitution. But I don’t think that the 9th amendment gives those rights to them. The 9th amendment just notes the possibility of other rights. To figure out what those rights actually are, you look at theories of natural rights.
I don’t think we really disagree much on what rights people have. We just disagree on whether the 9th amendment grants those rights. I think that those who voted on the Bill of Rights believed that rights came from God, not the government. The amendments are phrased to reflect that belief, as in, “the right of the people to keep and bear arms, shall not be infringed.” In their view, God gave the right, and the question is whether government will take it away.
And to answer one of your questions: Yes, I suppose the 9th amendment implies the existence of at least one unenumerated right. But I don’t see the point of the question. It’s obvious that the people who voted on the Bill of Rights believed in lots of unenumerated rights.
Psue: I’m not arguing against SSM on the basis of a right/privilege distinction. I’m responding to a pro-SSM argument on that basis. I don’t think that the constitution should have much to do with SSM.
Jake and Lucia: You’re both transforming the XIV amendment into a super-broad statement of governmental non-discrimination in all things. That isn’t what those who wrote it intended it to mean, nor is it what the words literally mean in some abstract sense.
Lucia is fond of looking at the “true meaning” of words, so let’s really slice apart the sentences that gets people so worked up in the 14th amendment:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
We have three sentences here. Let’s take them one at a time:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Translation: States may not enforce laws that deprive US citizens of the rights they enjoy under the US Constitution.
For example, as a US citizen you have a privilege against self-incrimination under the 5th amendment. The above sentence means that the Georgia legislature cannot pass a law that requires you to incriminate yourself, because that’s a privilege you possess as a US citizen.
“nor shall any state deprive any person of life, liberty, or property, without due process of law” Translation: No stringing up carpetbaggers or blacks without a proper trial. This one doesn’t seem as contentious as the others unless we want to discuss the oxymoron “substantive due process.”
“nor deny to any person within its jurisdiction the equal protection of the laws.”
Translation: Carpetbaggers and blacks have the same rights in Southern states that white southerners do.
More broadly, states cannot choose to protect the rights of some citizens and not others. The Georgia legislature can’t say that only those born in Georgia may sue in Georgia courts, or that killing a black person is not as severe a crime as killing a white person.
I’m no expert on the history of Reconstruction, but from what I know these translations make perfect sense for the time in which they were written. The South had been conquered by the North, and there was deep and lasting bitterness on both sides. There were real concerns about whether someone from New York could travel to Georgia and expect the same legal protection for his life and property that southerners enjoyed.
It’s no secret that these words have been severely stretched by the US Supreme Court far beyond their original meaning. These three horribly written sentences have been blamed for all sorts of judicial lawmaking. And I’m sure it wouldn’t be difficult to take those US Supreme Court opinions on these sentences and form them into an argument for a constitutional mandate for SSM.
But I don’t see how the sentences themselves, with or without historical context, can be said to lead to SSM. Equal protection means equality in protection, not equality in goodies. The police may not refuse to investigate a crime because of the victim’s race, religion, sexual orientation, or whatever. In that sense–within the protections of basic rights that the state provides–the government may not discriminate. A state can’t deny Jews a right to free speech, nor can it deny jury trials to Catholics. Equal protection means that the government equally protects the rights of every citizen within its borders.
Jake makes a broader argument that it would be wrong for a state to forbid Hungarians from driving. I agree that it would be wrong, but I don’t think that it comes within the literal language of the 14th amendment. A driver’s license is not a privilege or immunity that you receive when you become a United States citizen, nor is it a protection that the state offers. It’s a privilege that the state offer.
It’s my turn to ask a question on this topic. I brought it up before and didn’t receive an answer, but I really want one this time:
The constitutional SSM argument, as I understand it, is that the government is forbidden in the strongest terms from discriminating. Discrimination is really, really, really bad. It’s so bad that the people can’t even be allowed to vote on whether to discriminate. Forbidding SSM is sex discrimination. Therefore, we must allow SSM, because to do otherwise would be discriminatory.
But if you’re so upset about discrimination, why aren’t you up in arms about discrimination on race and sex at government-funded universitites, and in government contracting?
Why does the iron-clad, super-duper eternal principle of non-discrimination in all things–which is so important that it demands the non-democratic redefinition of marriage–suddenly vanish when we’re talking about a kind of discrimination that liberals approve of?
Jake, your Hungarian can get a driver’s license, but he can’t go to many state universities on the same basis that favored minorities can. His company is punished in bidding for gov’t contracts because of his race and sex. Why aren’t you upset about that?
Until I have a clear answer, I can’t take seriously the high-horse arguments about the evils of discrimination. First let’s fight the real racial and sex discrimination going on right in front of our eyes. Then let’s talk about whether limiting marriage to couples that are likely to be able to produce babies is impermissible sex discrimination.
Sigh, way to turn a discussion on SSM into a broader huge argument about affirmative action. This sort of argument is overly broad, overly simplistic, and completely denying facts in these cases, making broad sweeping strokes that are impossible to counter because there are no specifics.
But I will say, even if you think that affirmative action in univerities is discrimination, it’s not on the same scale as denying a group participation in something because of the group’s identifying mark. Would you support a ban of marriage for blacks? Or Hungarians? Or the elderly? Or, maybe support isn’t right by your argument, but would you argue that if some state decided that no blacks shall marry that that wouldn’t be unconstitutional? If so, then you have a hopelessly narrow view of the Constitution that I’m only glad is not shared by the mainstream.
But still, this is a complete ad hominem attack. We state discrimination is bad. You say that these other positions are discrimination. We can argue whether or not it is, but it doesn’t have any bearing on whether discrimination in the case of SSM is bad and should be allowed. It’s at best a diversionary tactic and I see no reason to suddenly turn this into a debate regarding affirmative action just because you seemingly don’t want to debate the issue at hand.
I’m going to let Jake stick to the XIV and address it later. It is more important than the IX… but I want to see your thinking of the IX first.
And to answer one of your questions: Yes, I suppose the 9th amendment implies the existence of at least one unenumerated right. But I don’t see the point of the question. It’s obvious that the people who voted on the Bill of Rights believed in lots of unenumerated rights.
I see the point of my question; that is why I asked it.
I’m see that you and I agree that in historical context,the people who consented to be governed by the constitution believed in a lots of rights.
I’m trying to explore what those might be, and learn what documents you look at to figure those out.
I have two questions. One which you didn’t answer (And remains above.) And a new one.
1.
I’m still wondering on your impression of the right to pursue happiness, about which I asked specifically. Might that have been one of the rights?
2. Are you saying that the ammendment IX has no legal effect?
Oh… another occurred to me. My impression is that Jefferson was either an agnostic or an atheist. My impression is that he believed in a whole lot of rights.
Am I wrong on either score?
The constitutional SSM argument, as I understand it, is that the government is forbidden in the strongest terms from discriminating. Discrimination is really, really, really bad. It’s so bad that the people can’t even be allowed to vote on whether to discriminate.
This is not my argument.
I have previously stated that:
So far, this is not my argument. (In the following, I will be sloppy and write it as though the US as a whole is the only matter. You may insert any state you wish in it’s place.)
1) I am simply for SSM. I prefer it the way I prefer school vouchers.
2) I suspect there is a non-negligible possibility that the Supreme Court will interpret the constitution to permit SSM. It may not (I suspect the ruling will involve at least the IX and XIV amendments,, and possibly some others, acting collectively, and interpreted in their historical context, )
3) If you are confident that your interpretation of the constitution will prevail,you can just gut it out and wait.
4) If you wish to thwart this possibility of hypothetical Supreme Court rulling before it occurs, you will have to work to amend the constitution. You have a constitutional privilege to work for a political party and cause of your choice. (My understanding is the supreme court has interpreted the IX amendment to give you this right.)
5) You have a constitutional right to vote your conscience on this matter an others.
I would consider 5 a vote for discrimination. It is your constitutional right to do so.