Late this afternoon, the Senate voted 26-4 to advance the same-sex marriage equality bill on to the House of Representatives. The House will begin its consideration of the bill tomorrow. The big question is whether or not Governor Jim Douglas will veto the bill.
Under Vermont law, in order to pass a bill into law without the Governor’s signature, two-thirds of both the Senate and the House have to vote to override the veto. From an article about an unrelated bill:
In any case, overriding a gubernatorial veto is never easy — despite the Democrats’ wide majorities in both the House and Senate. It takes two-thirds of those present to pass a bill into law without a governor’s signature, and the override must pass the House floor first before it even reaches the Senate.
Since 1836 there have only been six successful overrides of 127 vetoes.
Still, a 25-4 vote in the Senate is a great sign. This Vermont blogger is confident that a veto can be overturned.
If Governor Douglas (who is a Republican) wants to register his disapproval of marraige equality without vetoing it, he has an option: Under Vermont law, Douglas could also just let the bill become law without his signature. (That’s if I understand the news report correctly, I could be mistaken.)
This isn’t the first time a state legislature has passed a same-sex marriage law — California’s legislature did that, but Arnold vetoed it — but Vermont might become the first US state to legally recognize gay marriage entirely through the legislative process.
Christ, that’s wonderful. Yay for Vermont!
Vermont might become the first US state to legally recognize gay marriage entirely through the legislative process.
YES! Of course, you’ll always hear from the folks who think it doesn’t count as an expression of democratic will unless it’s a referendum…
YES! Of course, you’ll always hear from the folks who think it doesn’t count as an expression of democratic will unless it’s a referendum…
*nods* that’s totally what happened in California before the Prop H8 hate-fest happened from the fundies … twice the CA legislature voted to make same-sex marriage legal, through both houses, and twice Governor Terminator vetoed it.
Both his and those of the fundie x-tian hate-groups was that the legislature was “overturning the will of the people” … to which one must ask what precisely the role of the legislature IS then if not the will of the people?
Personally I’m perfectly happy with having the reinforcement of civil rights by the courts, as people shouldn’t get the chance to vote on civil rights, but I’m nonetheless happy that the simple logic, rationality, reason, humanity and civility of the whole issue is finally starting to permeate brain-cells.
SarahinChicago,
I think the Governor probably was correct on the legal issue that the state legislature couldn’t overturn a referendum. I suppose he could have signed the legislation and let it be fought through the courts, but that probably just would have brought us back to In Re Marriages, Prop 8 and where we are right now. But maybe not — having it happen through the legislature and executive before there was a judicial intervention might have been enough to push Prop 8 the other way.
What’s the projection for the Vermont House vote?
Efficiency.
I voted for Obama. But I don’t agree with everything (at all) that he does, and his actions don’t reflect my “will” merely because he got my vote. In the same vein, his actions might in certain cases reflect the will of those who didn’t vote for him.
The same is true for legislatures.
It is even more true when you have an issue of first impression that is not addressed in the political race. As an example, if you have opposing candidates with differing (and publicized) views on gay marriage, then arguably the winning candidate reflects the will of a plurality on that issue.* Even so, it’s problematic for the reasons described above.
But when the issue is one which was not featured in the campaign, and on which people did not base their votes, then the representative is even less likely to represent the will of the people. So if the Senate were all of a sudden to consider whether or not to add the Vatican as a U.S. state, their vote would not necessarily reflect the will of the people, irrespective of whether or not they were elected.
If we wanted to ACTUALLY know what the people wanted, we’d have referenda all the time. We don’t because it’s brutally inefficient to do so; we’re way to large to act like a full democracy.
However good our system is, though, we should always remember that the efficiency is a tradeoff. I believe that we should have more democracy, not less, and I believe that the legislatures should be less paternalistic, not more so. As a result, I generally support state referenda on highly contentious issues.
*which is actually not precisely right, but is correct enough for this example.
I generally support state referenda on highly contentious issues.
I wouldn’t base this on level of contentiousness, but more on the extent to which it’s a discrete issue. Although CA voters unfortunately went the wrong way on Prop. 8, it’s actually a good example of an issue on which to have a referendum due to its limited interplay with other aspects of governance. It doesn’t need to be budgeted or balanced with other political issues; it’s a straightforward question of whether to amend the state constitution to forbid recognition of same-sex marriage. (In contrast, the federal DOMA has made a mess because so much federal law, beyond just the rights and responsibilities within a marriage, is tied to marital status, plus the conflict between state recognition and federal non-recognition.)
Some issues, however, are too intertwined to be good candidates for referenda. Anything dealing with taxes and budgets, for example, will tend to fall into this category. There are states that have referenda-ed themselves into on the one hand not being able to raise taxes for schools, and on the other hand having a mandate that class sizes can’t be larger than 30 kids per teacher. Anytime you might need to make a trade-off or need flexibility depending on economic and other conditions, don’t put the issue to a referendum where voters will be making a one-off choice without having to deliberate about what that will entail.
PG, I agree with you that the quality of being discrete is a great factor. I don’t want to give up contentiousness, because while I would prefer more referenda, I do not think referenda are really necessary when the voters don’t really seem to have much invested in one side or the other–i.e., when it’s not a contentious issue.
But by and large, it seems like you and I are on the same page.
Sarah in Chicago said:
people shouldn’t get the chance to vote on civil rights
But, then, how is it to be decided what’s a civil right and what is not? A majority of the legislature (who as noted above were often not elected on the basis of their opinion on the matter)? By the whim of the executive? By judicial fiat based on what 5 unelected people think the Constitution does – or should – say?
Those people are just that – people. And they were elected (or in the case of the judiciary, appointed) to represent and serve the people, not to rule them.
The Constitution sets forth the basics of what are to be considered civil rights, and the law has been modified to from time to time by Constitutional amendment and via legislation. As a democratic republic it’s the job of the various branches of the government to make a decision on questions like these. But the ultimate authority for what is to be considered a civil right and what is not belongs not to the government but to the people. What rights do we have that were NOT established by a vote, either of the Federal legislature or by those of the States through the adoption of the Constitution and it’s amendments?
It’s not something to be lightly done, certainly. That’s why the founders of this country made amending the Constitution rather tortuous. Mob rule and basic changes in our form of government being made on the basis of fleeting passions was not what they wanted. But they made sure that there was a way that the people could tell their government that it had made a mistake and that the people could override their covernment and correct it. If the people feel strongly enough about a question of rights they can decide it regardless of what the denizens of the government think. Note that the framers of the Constitution were careful to create a method for amending it that virtually bypassed the Federal government.
That’s the way that it has to be. As it says in the Declaration of Independence, “Governments are instituted among Men, deriving their just powers from the consent of the governed”. If we get to the point that a principle can be established against the consent of the governed, we no longer have a democracy.
legislature was “overturning the will of the people” … to which one must ask what precisely the role of the legislature IS then if not the will of the people?
Based on the fact that two referenda opposing gay “marriage” passed – one for a law and one for a Constitutional amendment – it seems that the Governator was in fact quite correct. The legislature DID try to overturn, or at least ignore, the will of the people.
Actually, the question of what the role of the legislature is regarding the will of the people has been argued a lot in American history. While this may be oversimplifying, the “Jeffersonian” view is that the people elect representatives because the level of education the mass of people have and the amount of time, attention and effort people can put into gaining an understanding of various issues is limited. The representatives’ job is to get an understanding of the issue and then vote what they think is best, without necessarily consulting with or taking into account the views of the public. The public’s job is to elect representatives that are smart and have good character. OTOH, the “Jacksonian” view is more along the lines of “figure out what the people in your constituency think and vote that way regardless of your own opinion”. The concept that all representatives should always reflect the will of the people is not uncontested.
How would you reconcile this opinion with the legality of interracial marriage, Ron?
Do you believe that interracial marriage should still be illegal throughout much of the country?
—Myca
Or actually, come to think of it, forget interracial marriage. How would you reconcile this opinion with the legality of segregation?
—Myca
Myca,
Aww, I had a vanishing hope that if someone other than I asked, RonF might finally reveal the hidden portion of the Constitution — a la National Treasure — that says miscegenation must be allowed but SSM is right out.
I think RonF does ask an interesting question in wondering how something gets thought of as a civil right. One bit of solace I take from Prop 8 is how radically the framing of SSM has changed in the past decade. At least now, when people deny me equal citizenship they’re mostly acknowledging that’s what they’re doing. I get angry, and sometimes I despair, that my rights should be subject to debate. But at least that’s how we understand it. In many ways it’s a position of much more power than queers had even quite recently. It’s a much more amorphous problem than the procedural way RonF puts it, and there’s no one set of answers.
Myca:
How would you reconcile this opinion with the legality of interracial marriage, Ron?
I don’t understand the question. How is there any conflict?
Do you believe that interracial marriage should still be illegal throughout much of the country?
Of course not. But I don’t see where the question follows from or is responsive to anything in this thread.
Yusifu:
Whether or not individuals recognize, as a matter of personal opinion, whether or not a given thing is or is not (or should or should not) be considered a right is far from a procedural matter. But whether or not it is recognized such at law and as being enforceable by the government is a procedural matter. That procedure, of course, depends a great deal on the personal opinions of the individuals involved in executing the procedures that will recognize or deny something as a right. At the governmental level the individuals are bound to a certain extent by law; however, especially in the judiciary, the relatively small number of individuals comprising the government can defy or distort the law to suit their opinions. The ability of the people to determine that this is what has happened and to have the final say on the content and meaning of the law is the central point of Article V of the Constitution. In the end, under the Constitution your rights always have been and always will be subject to a vote. In a democracy – even a democratic republic – there’s no other way.
RonF, I’m pretty sure why Myca’s asking is because most likely a majority of Americans would not have voted to approve interracial marriage or an end to legal segregation at the time. In one case, it was imposed by the courts, and in the other, through a legislative process, but in both cases the government imposed it on “the people.”
Edit: At least, it would not have passed in many states if put to popular referendum at the state level, the way gay marriage was.
In one sense, you’re right. There are a variety of procedural ways that rights become recognized and enforceable by law, and you or I may think something ought to be a right and even IS a right, but unless we and people who agree with us can work one of those procedural levers, it’s just an idea. I guess what I take issue with (and if I’m misreading you, I apologize) is the idea that unless 50 percent plus 1 of the electorate would vote in favor of something being a right, then using one of the other procedural levers (courts, legislatures) is somehow illegitimate.
Myca, are you generally against popular (majority) rule, or do you only like majority rule when it comports with your personal beliefs?
That seems to be the sort of sniping you’re making at Ron, and it’s not like you.
For myself, I dislike systems which are changed in the name of expediency, and I prefer systems which reflect (as closely as possible) the will of the people, with some limitations for efficiency.
It doesn’t mean I’m happy with all of the results. but if i tried to design a system where i would always like the results, it would be a horrible system.
That sign is hoot in the pic!
But it should have read:
Oh Hai
I can haz
RITES?
No, it’s not sniping, Chingona got it, and so did PG.
I believe that there are certain fundamental rights which should not be subject to simple majority votes.
I don’t believe that 51% of the population should be able to vote to (for example) force 49% of the population to change their religion or join a different political party.
If the population did vote in such a manner, I believe that it’s right and proper for the Supreme Court to rule the resultant law unconstitutional.
That’s what happened with miscegenation.
Ron refers to this as deciding a civil right, “by judicial fiat based on what 5 unelected people think the Constitution does – or should – say.”
It’s not that I don’t believe in majority rule, it’s that I don’t believe in bare majority rule. I believe that new laws enacted by the legislature are no less valid than new laws voted in by the people. I believe that new laws must be constitutional and that the courts are the only place that can really be decided. I believe that changing the constitution (either to add or strip rights) should be an extraordinarily difficult act and that a simple majority will not suffice.
I don’t think that any of this is controversial . . . all I’m saying is that I pretty much think our system works the right way on this stuff most of the time.
The standard right-wing swing on this is that when the supreme court rules that “yes black people and white people can get married,” they’re engaging in ‘judicial activism’, since there’s no explicit constitutional amendment granting specifically that right, and extrapolating logically from existing rights is witchcraft or something. Thus, it ought to be up to the people to vote on.
Ron’s comment (and his past comments, as PG noted) seemed to endorse this point of view. Therefore, I asked him where he stood on the legality of interracial marriage.
—Myca
Just to clarify, by “fundamental right,” are you talking about a right which arises from your view of morality and/or natural law, or are you talking about a right which is guaranteed by the constitution?
Both, actually. I believe that the rights guaranteed by the constitution ought to be the rights which arise from my view of morality and/or natural law, (which I think is how we all think, more or less) but from a legal standpoint, what I’m saying is that the rights guaranteed by the constitution ought not be subject to simple majority rule on a case-by-case basis.
Prop 8, for example? Bad.
Bad not because “I <3 SSM,” (though I do) or because the right to SSM arises from my view of morality and/or natural law, (which it does) but because the CA supreme court ruled that the CA constitution required marriage equality, and I don’t believe that the people ought to be able to remove a constitutional right with a 51% vote.
I don’t believe that the CA Supreme Court’s decision was ‘judicial activism,’ I don’t believe that Loving v. Virginia was ‘judicial activism,’ and, were the US Supreme Court to rule that SSM is a constitutional right, I don’t believe that that would be ‘judicial activism’.
Does that make sense?
—Myca
RonF has been asserting that we only have rights as they are explicitly enumerated in the Constitution. I have pointed out, ad nauseum, that the text of the Constitution nowhere mentions marriage, and therefore if one says there’s no Constitutional right to SSM based on the text, one logically also must say that there is no Constitutional right to interracial marriage. Unfortunately, RonF thus far has not had the courage to admit that his reading of the Constitution would allow the states to forbid interracial marriage.
This is a pity, because I at least respect conservatives who are honest about the results of their Constitutional interpretation. Robert Bork, for example, admitted that he didn’t think the Constitution forbade segregation and therefore Brown v. Board was decided wrongly not just in its reasoning but in its ultimate conclusion. In contrast, Rick Santorum is someone with whom I don’t just disagree but whom I hold in contempt because he never acknowledges that his view of the Constitution would allow states to ban all forms of contraception.
Also, I agree with Myca that the 51% process for amending the CA Constitution is particularly stupid. It is what it is and it’s what Californians chose, but the federal Constitution much more intelligently requires super-majorities to amend the Constitution to overrule the courts, and it has been amended many times to do just that, starting with the 11th Amendment to slap back the Supreme Court’s decision in Chisolm v. Georgia. One of the more interesting things I’ve learned in constitutional law is how many of the amendments were passed in response to Supreme Court decisions with which there was massive disagreement. Not just a razor thin majority, but enough disagreement to meet Article V’s requirements of a lasting super majority. (This is similar to MA’s constitutional amendment process.)
Oh, as an additional ‘for example,’ Sailorman . . . I’m not crazy about the second amendment, and the right to bear arms doesn’t arise from my view of morality and/or natural law, but it is what it is. It’s in the constitution, and I don’t think that a bare 51% majority should be able to take away everyone’s guns.
It’s not just about keeping my goodies and my preferred rights, it’s about the idea that for a right to mean something, it can’t be subject to the whim of a simple majority.
—Myca
Myca: Right now, we already have a Legislature which, as I discussed above, often does not reflect the ultimate will of the people. We have a court system which in most cases is even further removed from the people. (barring popular votes for judgeships, which are bad news.)
So given those things, I am not entirely sure that I think all Constitutional issues should be decided by a supermajority.
A part of this is you are coming at it from the perspective that gays have been denied a fundamental right. I don’t agree with the “fundamental right” claim, but more to the point I am unclear why you believe that the denial of marriage is the fault of the amendment process.
Say that the California constitution had previously BANNED gay marriage. Then–hooray!–it would only take a majority vote to fix it. Same for anything else you like.
It’s a two way street. You seem to be blinded by the circumstance where the majority has gone against your wishes, but I don’t see how that specific result is determinative of the process being faulty.
I might also note that for the U.S. constitution, the supermajority of 2/3 is an issue for the legislature, which means that the elusive “will of the people” is not really being senn to in a Constitutional amendment, either.
Sailorman, was your most recent comment directed at me or PG?
Who was the ‘you’ you were addressing?
—Myca
edited to clear that up.
Sailorman, have you even read any of my responses? I ask because your post seems awfully disconnected from anything I’ve said. It’s as if you asked for clarification, I clarified, and then you responded to the original post, interpreting my words contra my clarifications!
You are specifically ignoring any of my other, non-prop-8 examples, at least one of which addressed a right that I am not fond of, but which I feel, nonetheless, should not be subject to a simple majority vote to override.
Also, frankly, it’s a little ad hominem-y.
I’m talking about process. I’m talking about what I feel the process ought to be when it comes to either denying or adding (as I said in the 4th sentence of paragraph 7 of post 19) constitutional rights. There are all kinds of amendments I’d love to see, but I think that doing so should be hard, and should require more than a simple majority.
If you think of the constitution as embodying our basic governing principles . . . not, “parking fines will be set at $50 for the first offense and $150 each subsequent,” but, “the laws shall apply equally to all citizens,” then I think it should be harder to change the basic governing principles than it is to change the resultant laws.
I think it should be harder to repeal the first amendment than it is to change local zoning ordinances. That . . . doesn’t sound unreasonable to me. Maybe it does to you.
Well, it’s pretty direct. The CA supreme court ruled that marriage equality is a constitutional right. Whether you want to say it’s a ‘fundamental right’ or not, there’s really no discussion left about whether it’s a constitutional right. Pre-Prop 8, it simply was. No debate.
—Myca
Additionally, since I’m making a process argument, appealing to how the current (poorly designed, IMO) process might possibly result in my preferred outcome isn’t really germane. It makes sense if you believe that all I’m doing is bitching about a proposition I didn’t like, though.
I think that things in the constitution ought to be taken very seriously, and that it should require more than a 51% vote to either add things in or take them out. Our basic values as a nation should not be susceptible to the changing tides of politics and public opinion.
—Myca
Part of the problem is evaluating the alternatives. Are we talking “A v. B” or are we talking “A v. not-A” or something else entirely?
If the alternative to a “popular vote of 50%” as an amendment vehicle was “popular vote of 66%” I would have no problem with that. The costs would be overriden by the benefits, both of efficiency and of stability, at least IMO.
If the alternative is a very convoluted legislative process, I don’t like it. I think that it is too difficult to amend the U.S. constitution, for example. We are weighted too much towards efficiency and stability, and too far away from democracy.
Hmm.
I’m not really sure what your motivations are. I know that is going to come out like an insult, and I don’t mean it to be one. But you have argued so strenuously for a moral view which coincides with your process argument that internally, at least, I have trouble assuming your process argument isn’t biased. It’s sort of an inherent mistrust which I have from my job.
For some reason I don’t feel that way about PG, mostly because I recall her taking a variety of positions which she feels are logically consistent but which she doesn’t like. Maybe you do that as well, and I’m not picking up on it. If so, I’m sorry for my misperception. And obviously, whether or not you do that globally has no effect on whether you’re doing that here.
Sailorman,
Am I recalling correctly that you live in the Northeast where voter initiatives and referendums (referenda?) are rare? Living in a state where we pass three or four constitutional amendments by simple majority in every even-numbered year, direct democracy ain’t all it’s cracked up to be.
Sure, but look, man. I’m making this argument post-prop 8. If my proposed changes were put in place, it would be HARDER to change the constitution back to its original pro-equality position. Yet, somehow, I manage to believe that it’s the right thing to do.
Generally, I favor requiring a supermajority of two thirds or three fourths when it comes to constitutional amendments. I want screwing around with our constitution to be hard. It’s supposed to be hard. That’s a feature, not a bug.
—Myca
Word, Chingona. Word.
—Myca
A constitution is inherently controlling in a dead-hand fashion. A supermajority-amendment-only constitution is more so: It is a method of telling future voters that you know better than they do what is best for them, and that until they can build up the required support (which as a functional matter is usually MORE than the supermajority) then they can’t change what you think they should be doing.
The result is either that the laws stagnate (because supermajorities are hard to achieve) or that the government tries to work around the inherent limitations of their constitution. It’s usually the latter.
In the case of the U.S. government, for example: the Supreme Court has become a de facto legislative body, because the amendment process is so difficult. Amendments get passed only for huge issues, because anything less doesn’t motivate the populace to support an amendment, even if one should happen. But there are hundreds of issues which are of a nature that they would ordinarily be decided by the legislature, which are functionally decided by the USSC. (an excellent example is the long string of commerce clause cases. The reach of congress, and congress’ ability to legislate certain issues, should be decided either by a legislature or by the voting public. But it’s not sexy enough to justify an amendment. So the Court decides it.)
As a result, a huge amount of the laws which affect the population of the U.S. have never been voted on by the citizens of the U.S., or even by many of the legislators of the U.S. Instead, they are passed down by judges.
Although this is technically OK under the Constitution (at least in terms of precedent since Marbury; it is entirely unclear what the Framers would have thought of cases like Roe) it is, functionally speaking, a divestment of the power of the individual in favor of the power of the elite.
As a matter of course, I think that’s not a great thing. By and large, the USSC gives decisions I like, because I’m a member of the elite. But I still don’t like the process. It’s almost a form of regulatory capture.
Of course, I am operating more from what Ron refers to as a “Jacksonian” perspective. you may be different.
Let’s look at Massachusetts: When Goodrich was passed, for example, i was totally psyched. But when the motion for a constitutional referendum was rejected, i was appalled.
The goal of the referendum was to allow the people of Massachusetts to vote on the contents of their own constitution. From my perspective, that should be an ultimate right.
The motion to get a referendum was voted down, 151 to 45. As a result, the question never went to the voters.
But were the massachusetts voters really 3:1 against gay marriage? Not from the polls. It should have gone to a vote, and if the legislators followed the jacksonian model it WOULD have gone to a vote.
Instead, many of the legislators who voted against it did not do so because they thought their views were morally correct. IOW, they used a form of elitist thinking (they know better than the public), combined with faulty logic (the public elected them to vote their conscience, as opposed to electing them because they were the ‘least worst’ option, or for any of 1000 other reasons.) The result was that there was no constitutional convention, even though more than 1/4 of the population wanted one.
The result? Great! I’ve been to a few gay weddings since then. But the process makes me squeamish. There are only a few people in the world who I trust to make decisions for me, and my legislators aren’t in that category.
So when i see you arguing for a convoluted process for amendment, I also see that as an argument for imposing the morality of someone else, on me. And since that someone is likely to have been elected NOT for smarts and morality, but for race, sex, upbringing, wealth, family name, connections, and the like… well, I think that stinks.
Sailorman:
Once again, Sailorman, kindly respond to my posts rather than responding to the arguments imaginary voices in your head are making
Here’s my ‘convoluted process for amendment’: a simple vote.
Me, in my very last post:
Totally unreasonable, right? What dictatorial power I must be embracing!
Oh wait. No, no, here’s you in post #30.
Sailorman, back in post #30:
You were for supermajority votes for constitutional amendments before you were against them? What gives? Seriously, Sailorman. Slow down and try talking to me, not to the make-believe Myca you’ve been talking to.
—Myca
Sailorman,
I think you might be overly influenced by how convoluted the process is in the state where you live. I will concede I might be overly influenced by how easy the process is in my state. But I don’t think you should lose sight of what happens when you open this up completely. In November 2006, I voted on 20 voter initiatives, eight of which were constitutional amendments, two of which were competing amendments on the same issue, with the second one put on the ballot by a legislator who opposed the first one and was in the pocket of business interests who stood to lose out if it won (and lo and behold, the real one, placed on the ballot through a petition drive, failed and so did the distraction one, but that was by design, they didn’t even campaign for their own damn initiative because their only goal was to defeat the first one by trickery rather than on the merits). The other constitutional amendments that passed that year prevented illegal immigrants from receiving damages in civil suits, prevented illegal immigrants from getting out of jail on bond, barred illegal immigrants from enrolling in adult education classes (including English classes) at community colleges, made English the official state language, capped the amount local governments could increase their tax levies and increased the amount of debt local governments could carry for public safety and transportation related expenses. All of these things are in the constitution now, and no matter what type of unintended consequences come from any of these laws, not a single word of them can be changed without placing another constitutional amendment on the ballot and somehow convincing 51 percent of the voters that really the second clause of the third subsection should have been worded differently. Try putting that in a three word slogan on a yard sign.
I’m not sure what you think the process should actually be. Sounds like Massachusetts has a really convoluted system, and maybe it ought to be changed. But before you just put everything up to a simple majority vote, you might want to look at how that works out in reality.
An alternative to ensure that there is public deliberation and debate over a constitutional amendment is the process in Texas, where the legislature by a two-thirds vote in each house can send an issue to the voters, who then can pass it by a simple majority. This certainly has had results with which I disagreed, such as the limitation on liability for non-economic damages (which passed in 2003 by a fairly narrow margin and with only 12% of eligible voters weighing in), but it strikes me as superior to CA’s system.
chingona:
I guess what I take issue with (and if I’m misreading you, I apologize) is the idea that unless 50 percent plus 1 of the electorate would vote in favor of something being a right, then using one of the other procedural levers (courts, legislatures) is somehow illegitimate.
I don’t know why you would think that. In re-reading my posts on the matter I don’t see anything close to that. Please re-read my paragraph 4 of post 9. I desire neither mob rule nor rapid changes based on the fashion of the day (or as the DoI puts it, “for light and transient causes”).
The use of the mechanisms set forth in the Constitution for changing the Constitution or dependent law work fine for me. My point is simple: the ultimate authority in a democratic republic is the people, not the government. If the people are sufficiently moved, they can and must be able to override their government. The Federal Constitution sets a high bar for the people’s ultimate expression of that. The California State Constitution – not so much. But that’s a matter for the citizens of California, not me.
Myca:
The standard right-wing swing on this is
Which is why I made a point earlier when you referred to “you people”. If you want to talk to me as an individual instead of “othering” me as a member of a group you have a dispute with then fine. But I’m not responsible for whatever “The standard right-wing swing on this” is, nor am I responsible for whether the characterization given in that statement is valid. I’m not going to let you put me in a box and then force me to defend it.
If you are intent on debating the positions of conservatives as a group I can do a little research and give you a list of blogs that you could try.
PG:
RonF has been asserting that we only have rights as they are explicitly enumerated in the Constitution.
The limitation is that the Federal government only has those powers that are enumerated in the Constitution. That was the point of writing it – to carefully explain and limit the powers of the Federal government. Articles XI and X are clear that rights not enumerated in the Constitution exist, and that the Federal government has no authority regarding them; they are retained by the people and the States.
… the text of the Constitution nowhere mentions marriage
True. It would seem to be one of those rights covered under Amendments IX, X and XIV.
and therefore if one says there’s no Constitutional right to SSM based on the text, one logically also must say that there is no Constitutional right to interracial marriage.
If the legal definition of marriage was “a bond between two people that love each other”, you’d be right. But marriage is defined as “a bond between a man and a woman” and nowhere in California law is the word “love” mentioned in connection with marriage – a good thing, I think, I doubt we want the government defining what love is. I was given some reading on the history of that which I confess I have not finished – but I think it’s clear that it’s at least always been defined as such in U. S. law. Redefining marriage is not something that the courts have any business doing.
Actually, Sailorman, IIRC a significant number of the members of the Commonwealth’s Great and General Court voted down putting the amendment out to the voters because Gov. Patrick offered funding of projects to those who voted against it and threatened consequences against those who would vote for it. If the Governor had kept hands-off on the topic I bet it would have gone on the ballot.
RonF:
If you read down a little farther, you would have seen where I said:
I wasn’t tagging you with this because “you’re conservative and all conservatives think X,” I was tagging you with it because your comments seemed to indicate that it’s what you thought … and I wasn’t the only one who took that from them.
Hey, maybe I’m wrong. Maybe you believe that there’s a constitutional right to marry freely, including interracial marriage and same sex marriage. Feel free to correct me.
—Myca
The limitation is that the Federal government only has those powers that are enumerated in the Constitution. That was the point of writing it – to carefully explain and limit the powers of the Federal government. Articles XI and X are clear that rights not enumerated in the Constitution exist, and that the Federal government has no authority regarding them; they are retained by the people and the States.
Except that since the Constitution was written, we’ve had the 14th Amendment, the point of which was to extend protection against the state governments as well.
I think you mean Amendments IX and X. Do you think there are any limits on the “rights not enumerated in the Constitution”? How do you discern what these rights are? Do I have an un-enumerated right that prevents the federal government from barring me from having a partial birth abortion?
I don’t see the logic in that statement. I’d appreciate it if you could clarify.
If our rights against the state governments are limited to those explicitly enumerated in the Constitution, then there is no right to state government recognition of interracial marriage (nor to prevent the state government from dragging spouses in an interracial marriage off to prison for committing fornication). If we have rights against the state government beyond those explicitly enumerated in the Constitution, there’s nothing in the text of the Constitution that makes interracial marriage a more plausible right than same-sex marriage. The 14th Amendment doesn’t refer to race. The 15th Amendment does, but only with regard to voting rights; substitute “sex” for “race, color, or previous condition of servitude” and you have the 19th Amendment.
In other words, the text of the Constitution doesn’t bar state governments’ discriminating on the basis of race with regard to who can marry whom any more than it bars them from discriminating on the basis of sex.
So why, on the RonF reading of the Constitution, is there a Constitutional right to interracial marriage enforceable against the Commonwealth of Virginia, but not a Constitutional right to same-sex marriage enforceable against the Commonwealth?
RonF,
I think my confusion with what you wrote comes here:
Constitutional amendments are proposed by a super-majority vote in Congress and ratified by votes of the state legislatures. There is also the possibility of a constitutional convention, but I don’t think that’s ever been done. It doesn’t “bypass” the federal government. It doesn’t “bypass” government at all. It’s a process carried out by the elected officials of the government on behalf of the people. So when you say that “people” should be able to tell the government it’s wrong, I thought you thought that if a state legislature approves something (as occurred in Vermont, just for laughs let’s bring this back to the OP), somehow that is insufficient expression of the popular will under our system of government, and it won’t be real until and unless it goes to a popular vote.
Edit: And I agree with whoever it was (PG?) who said that the California example was a little weird because the people had voted against gay marriage (putting the ban in law, but not as an amendment) and the legislature was voting to undo that, and taking my support for gay marriage out of it, I think that does complicate the question if we’re talking process and not whatever outcome I would prefer. But generally speaking, I don’t think a vote of the legislature is somehow insufficiently democratic.
Apropos RonF’s edit to his comment:
If the legal definition of marriage was “a bond between two people that love each other”, you’d be right. But marriage is defined as “a bond between a man and a woman” and nowhere in California law is the word “love” mentioned in connection with marriage – a good thing, I think, I doubt we want the government defining what love is. I was given some reading on the history of that which I confess I have not finished – but I think it’s clear that it’s at least always been defined as such in U. S. law. Redefining marriage is not something that the courts have any business doing.
Where is marriage defined as “a bond between a man and a woman”? I read a lot of statutes dealing with marriage a couple years ago, and I don’t remember a single one that referred to a “bond.” (Though that does remind me of a family friend’s 25th wedding anniversary party, where the wife — an oncologist for whom English is a second or third language — made a little speech in which she said, “It has been a wonderful 25 years of bondage,” and the 2nd generation looked at each other and thought, “More than we really needed to know about Aunty and Uncle…”)
But seriously, if you’re going to be a textualist, refer to a text. I can refer you to 1967 Virginia’s “comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages”: Code Sec. 20-54 (defining “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions); Sec. 20-57 (automatically voids all marriages between “a white person and a colored person” without any judicial proceeding); Sec. 20-58 (“Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”); Sec. 20-59 (“Punishment for marriage. If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”).
Virginia had defined marriage as being between two white people or two people of color. Why do you think it was OK for the U.S. Supreme Court to redefine marriage for the Commonwealth based on the Court’s interpretation of the U.S. Constitution, which you’ve said is to limit the powers of the federal government?
Or to come back to California: why, in 1948, was it OK for the state supreme court to void California’s statutory definition of marriage? California Civil Code Section 60 provided that “All marriages of white persons with Negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void,” and Section 69 stated that “. . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.” Why was it OK for the CA Supreme Court to say that definition of marriage violated the state constitution, but not OK for the CA Supreme Court to say that the man-woman only definition violated the state constitution?
It is also not the courts which are redefining marriage. It is the people and the churches and the synagogues and the temples that are redefining marriage. The courts are merely acknowledging that change. Gay and lesbian couples were having religious and secular marriages for decades before any state court required the state government to recognize those marriages as civil marriages.
PG:
Where is marriage defined as “a bond between a man and a woman”?
Well, yes; I was speaking a bit metaphorically there. Here’s the actual definition from the California Family Code, found in Section 300(a):
The essential point of my comment regarding the nature of how marriage is defined stands, though.
why, in 1948, was it OK for the state supreme court to void California’s statutory definition of marriage?
For one thing, it didn’t change the essential nature of marriage, which has nothing to do with race and a great deal to do with the sex of the people engaging in it. There there’s the issue of striking down discrimination on the basis of race. The Court’s decision in that case was morally desirable and justifiable. However, before offering an opinion as to whether the California Supreme Court was legally justified in doing so under California law I’d have to read the decision and see what they had to say about it, as I am not an expert on the state of California law in 1948.
You keep saying this, yet you have never provided any support for your assertion that the “essential nature” of marriage is gender. You need to either provide factual support or stop making the claim.
chigona:
It doesn’t “bypass” the federal government.
I actuallly said “virtually bypass”. When a constitutional convention is called by 2/3 of the State legislatures the Congress does (and according to the Constitution, must) determine the time and place for it. But they have no power over whether or not it is called, no power over what proceeds during and from it, and no power over the ratification process. They had to have some process like this, otherwise it would be impossible to change anything about Congress’s operations, powers, etc. against the will of Congress.
And in any case I don’t see anything in that post or in others I made that would support an argument that I support the idea you proposed.
RonF,
Except that from 1850 to 1977, California law regarding marriages contained gender-neutral language that did not specifically reference “man” or “woman” in providing that marriage is a personal relation arising out of a civil contract to which the consent of the parties capable of making such a contract is necessary. In 1977, the California Legislature amended the marriage law to explicitly limit marriage to a “civil contract between a man and a woman” in order to prohibit same-sex couples from marrying. So you’ll have to look to another state before claiming that “man and woman” has ALWAYS been in the definition of marriage.
Where do you get your idea of what is the essential nature of marriage under the law? As I’ve shown, you’re clearly not drawing on statute unless the essential nature of marriage started in 1977 (14 years after sexual intercourse).
But there’s nothing morally desirable and justifiable in striking down discrimination on the basis of sex?
How about Loving v. Virginia? Judging by your statements of what the U.S. Constitution does and doesn’t say, you feel confident in your knowledge of it, and the document hasn’t changed in any respect relevant to race or sex since 1967.
Except that since the Constitution was written, we’ve had the 14th Amendment, the point of which was to extend protection against the state governments as well.
Yup. I did call out the XIV Amendment later in the post.
Do you think there are any limits on the “rights not enumerated in the Constitution”?
I think it would only be limited by conflicts among what people define as a right (which these days is often actually an entitlement). For example, someone might say that they have a right to not hear racial epithets. That would conflict with the right to free speech. But absent conflicts, it becomes a matter for the states or the people to deal with.
How do you discern what these rights are?
Through the governmental and political processes, which are in turn going to reflect the cultural, religious, etc. opinions and biases and whatnot of the people involved within the constraints of the law. The California state legislature established a law defining marriage as being between a man and a woman. Then they decided to change that, but the governor vetoed it and the legislature couldn’t override his veto. Then the people voted in a referendum as per State law to pass a law banning the change that the legislature tried to make. The State Supreme Court decided that the law was in conflict with the State Constitution. The people decided as per State law to put the matter beyond the reach of the State Supreme Court, pending the current suit over the amendment process.
I find a moral flaw in the State Supreme Court’s decision but not a legal one. The whole process was done according to California State law and that’s the way the process should work.
Do I have an un-enumerated right that prevents the federal government from barring me from having a partial birth abortion?
That’s where the issue I raised above about conflicts comes in. At that point we see a conflict between a woman’s right to control her body and the state’s obligation to preserve the life of the baby (we are talking abortion of a viable fetus when we talk about “partial-birth abortion”, I believe).
I can’t lay a hand on a link for it, but I seem to recall that a while back someone took a copy of the Bill of Rights, changed the language to modern vernacular, and circulated it at a shopping mall or some such venue and tried to get people to sign off on it as a petition. Apparently people thought it was pretty radical and wouldn’t sign off. I rather suspect that Amendments I and II at the least would see some highly undesirable changes if they were put to a 50% + 1 vote.
I find a moral flaw in the State Supreme Court’s decision but not a legal one. The whole process was done according to California State law and that’s the way the process should work.
Interesting — so you don’t think In Re Marriage Cases was erroneously decided from a legal standpoint?
I think it would only be limited by conflicts among what people define as a right … At that point we see a conflict between a woman’s right to control her body and the state’s obligation to preserve the life of the baby
That’s not a conflict of rights, that’s a conflict between a right on one hand and what you consider the government’s obligation on the other. It could just as well be the right of free speech versus the government’s obligation to preserve a civil society by forbidding disparagement based on race, religion, sex, etc., as well as forbidding crude language to be spoken in public.
(we are talking abortion of a viable fetus when we talk about “partial-birth abortion”, I believe).
Nope. Partial birth abortion is the misnomer for intact dilation and extraction, a procedure that can be used after 16 weeks — 2 months before viability. If the government were limiting abortions based on the age of the fetus, rather than banning the safer procedure in an effort to discourage abortions even of pre-viable fetuses, I would have much less of a problem with it.
This keeps switching back and forth between legal and moral.
I will stick to legal. If you believe that the intent of the drafters of our various constitutions was relevant, you have to consider four basic options:
1) The framers of the constitution (including the drafters of the various state constitutions) believed that the sex of the participants in marriage was entirely irrelevant, so they didn’t add that clause. IOW, the Framers were fine with gay marriage, and considered it obviously protected by the constitution.
2) The framers of the constitution (including the drafters of the various state constitutions) did not like gay marriage, but believed that the differing-gender question was so obviously established in the social/political/legal system existing at the time the constitutions were drafted, that there was no need to add a clause prohibiting it. IOW, the Framers hated gay marriage so much that they assumed their beliefs were universal.
3) The framers of the constitution were against gay marriage to some degree. But they deliberately drafted the constitution in a manner to permit future society and courts to change their views and interpret the existing text to support gay marriage.
4) The framers were completely oblivious to the concept of gay marriage at all. Which seeing as gays were well-known at the time, is IMO fairly like #2. But I will still list it separately.
If you are arguing that the framers did not think it was an essential element, you’re basically arguing #1, #3, or (sort of) #4.
most people who are arguing that the framers thought it would be relevant are basically arguing #2.
Is that correct? Which is your positoin, if so?
#4. It’s worth noting that the prohibitions on interracial marriage, like those on same-sex marriage, were instituted only when legislators perceived that people might actually want to enter into such marriages.
The framers were completely oblivious to the concept of gay marriage at all. Which seeing as gays were well-known at the time, is IMO fairly like #2.
No, because same-sex attraction in some colonies had been treated as an aberration like bestiality. The fact that you might know a guy who fucked a sheep doesn’t mean that it would occur to you that he’d be interested in marrying a sheep. You’d just think he was a sicko who should be executed (along with the sheep).
Yes, that’s what I was saying (or what I meant to say, at least) in #4: gays were present, but the concept of gays actually being married was so alien to them that it never would occur to anyone to formally ban it.
This is similar to #2, but the issue in #2 would be “so obviously improper in their opinion” as opposed to “so alien to them”
I was actually speaking of history, not laws or morals. RonF keeps claiming that marriage has always been between a man and a woman and providing no proof of his assertion. Evidence supporting the idea that SSM has existed throughout history and across many cultures has been provided. RonF also keeps claiming that the one and only essential element of marriage is that it be between a man and a woman while also not providing any evidence to support his assertion. The facts, some examples given to us by Myca & Mandolin recently, show that RonF is wrong or lying. But he still continues to make the claim.
So your comment really has nothing to do w/ what I was trying to say.
But I’m interested in your comment and where you want to go with it. I would say that the odds are on #4. Even for me, the concept of SSM was alien until around 1985. I’d never considered its existence before that. Once I realized that the concept existed, I was all for it. I would imagine that the framers, once they realized that SSM could exist, would have been against it. But the reasoning behind those positions has more to do with how we feel about homosexuality than any “essential nature of marriage.” I find nothing morally wrong with homosexuality, most of the framers probably did.
I consider the intent of the framers was to make a fluid document that could continue to be relevant to future generations while sticking to the principles of freedom, representative democracy and equality for everybody. “Everybody,” as history has shown us, being an ever expanding subgroup of US citizens. So, no, I don’t think that specific moral or religious based intent of the framers is necessarily relevant.
Hmmm. I don’t think I stated that very well, but I hope my intent is clear enough.
Also, what PG said in comment 52.
The Framers apparently were OK with both race and sex/gender being permissible categories of discrimination. By passing the 15th and 19th Amendments, later generations of Americans rejected the Framers’ view in this area. I’m therefore pretty indifferent to what the Framers thought about these issues. An area where there has been no subsequent change to the text — e.g., right to keep and bear arms, or “case or controversy” required for the federal judiciary’s involvement — would be a more appropriate situation in which to take account of the Framers’ views.
If you’re talking about world history, then my comment doesn’t obviously apply. It wasn’t really clear to me that’s what you meant, mostly because it’s not really clear what a world history perspective would mean when you’re talking about the analysis of the U.S. constitution or a state constitution.
Actually, I am not a huge fan of the “what would the Framers think?” line of argument, mostly because it tends to involve predicting the intents and beliefs of people who are long dead. IOW, i would peg the framers as #2. but personally, i’m more inclined to something similar to #3. But certainly from a legal standpoint, it makes more sense to look at the framers than to look at other early civilizations.