Vermont

Just had to post this breaking story:

(CNN) — Vermont’s House and Senate voted Tuesday to override the governor’s veto of a bill legalizing same-sex marriage in the state.

Now let’s see how all the people who use “judges shouldn’t legislate” as an excuse for not being able to handle same sex marriage find a way around this one. I’m sure they will try to find a way to explain how this still isn’t the right way to do it. Of course, when you believe there’s no right way to do it, you’re not going to be happy no matter what. Personally, I’m happy for Vermonters.

Update: This bit of news:

The D.C. Council voted today to recognize same-sex marriages performed in other states, on the same day that Vermont became the fourth state to legalize same-sex unions.

Wonder how Congress, which could theoretically override the Council, is going to react to that one.

234 thoughts on “Vermont

  1. They’ll say that the legislature should have taken the veto lying down instead of trying to “execute from the legislature.”

    Whatever they do say will be at least that stupid, though it may not be immediately obvious.

  2. Legislators shouldn’t take it upon themselves to interpret the existing clauses of the Constitution; that’s the judges’ job!

  3. Am I really going to get the first THREE comments? Do you realize the number of states where I can marry another man has DOUBLED this week?

  4. The VT House did vote? Last time I checked only the Senate had…that was fast ! If that’s true, go Vermont !

  5. As one who doesn’t like when judges make up laws, let me say this: This is EXACTLY how it should be done.

    Now if some judge doesn’t decide to legislate, nullifying this law, maybe some sense can start to leak into marriage law.

  6. Good for Vermont. It is ridiculous two consenting adults, who already do everything married couples do, can’t get an official title if they want one.

    The inevitability of gay marriage is so obvious when you talk to Gen Y or younger. All the ultra-conservatives are doing is making the moderate conservatives question their alleigance.

  7. It’s true, all right. Too bad New York won’t be next…I’m like our good host – not gay but all in favor of legal marriage for those who are.

  8. Wow. Two states in less than a week. Hopefully a bunch more New England states by the end of the year. Totally awesome.

    Also, John, Thanks for the consistent support for LGBTQ rights.

  9. The trend for equal marriage rights is irreversible. The social conservatives are fighting a battle they’ve already lost.

    In fifty years, people will look at gay marriage opponents the same way we look at interracial marriage opponents today.

  10. if the religious opponents of gay marriage are smart, they’ll see the writing on the wall and just try to secure the right to refuse to marry gay couples in a religious ceremony without being sued.

  11. if the religious opponents of gay marriage are smart, they’ll see the writing on the wall and just try to secure the right to refuse to marry gay couples in a religious ceremony without being sued.

    We’ll just won’t tell them that they already have that right.

  12. You (and most of your commenters, apparently) are assuming everyone presenting the judges-shouldn’t-legislate argument is just being disingenuous? Do you leave any room for people who actually advocate that position? Or is this “ends justify the means”?

    Personally I’m open to the position that, in fact, the ends do justify the means in this case — similar to much of the civil rights movement in the 1960s, where I think a lot of the actions taken were in general something I would disagree with, but in that specific case were probably necessary and important. But I also think that’s a very dangerous idea in general, and people should be careful.

  13. @15 (SHHH! if we redirect them to something pointless we might get a few years of peace and quiet!)

  14. @Scalzi
    Slightly OT: Have you seen Gronstal’s response, blocking an anti-gay marriage amendment in Iowa? I have a link to it if you’d like.

  15. @Kevin R The problem with your viewpoint is that the judges are not legislating. What they are doing has nothing to do with legislation whatsoever. All they are doing is interpreting exisiting laws and coming to the conclusion that those laws do not inherently support discrimination. In other words, they are doing their jobs.

  16. Kevin R:

    “are assuming everyone presenting the judges-shouldn’t-legislate argument is just being disingenuous?”

    Not everyone. Almost everyone.

    And as Clussman noted, many people up in arms about the judiciary apparently have no idea what the judiciary does. It’s a common enough pathology that when I see people bloviating about here, I have a tendency to tell them not to be ignorant on my site. I have a very low tolerance for that “argument” at this point.

  17. “Legislating from the bench” usually means “interpreting the law in a manner with which I disagree”.

  18. I wonder if this sudden burst of gay marriage support from the states will have any effect on the California judges currently pondering the legality of Prop 8. Theoretically it shouldn’t make a difference, but realistically, the political climate seems to have a significant effect on Supreme Court decisions. Go freedom!

  19. Kevin R 16: The problem of “judicial activism” and what the people who are complaining about it are really trying to do, is discussed at length (by actual lawyers, among others) in the Iowa thread.

    In short, some people don’t understand the role of the courts, and others are lying about it to make political points. So yes, some actually are disingenous about it, though not everyone. It’s worth reading, though if you’re like me (and you probably aren’t, lucky you) reading some of the comments will make you want to break things.

  20. And indeed, as Vermont is about the legislature, not the judiciary, let’s not port the whole judicial argument over into this comment thread. Hint, hint, hint.

  21. The thing I liked the best about this, is the elected representatives of Vermont voted to pass the bill, then when the governor vetoed it, they said, in effect, “OH NO YOU DIDN’T!” and negated his veto.

    “BAM”!!! Boo-yah for Vermont’s legislature!

  22. @Kevin R.

    I’m also pro-same-sex marriage. On the other hand, I think one of the roles of the courts is to ensure that the rights of the citizens, especially minorities, are not abridged. Noting an unsupported-inequality in marriage laws and requiring it be fixed is exactly what the courts should be doing.

    Were it to happen with a case I disagree with, I’d like to think to complain about how the courts were interpreting the rights of minorities, not that they were doing so.

    So, saying that the Iowa Supreme Court was wrong in its decision because *insert reason why same-sex marriage is different than opposite-sex marriage that is relevant to the state of Iowa* is different from saying that the Iowa Supreme Court should butt out ‘legislating form the bench’.

  23. I am shocked, SHOCKED to see popularly elected legislators changing the law!

    Well, not that shocked.

    /democratic governance. They’re doing it right.

  24. legislators changing the law! /democratic governance. They’re doing it right.

    Oh sod off already.

  25. Well, being from Vermont, I am proud that this is so far the only State who got it right.

    Of course, we started down this path incorrectly by having the State Supreme Court mandate what resulted in Civil Unions, but that has been corrected.

    And Governor Douglass helped by forcing the Legislature to approve Gay Marriage with a Super majority. Now, no one can argue that this is not the will of the people.

    To me, this is not an “equal protection” issue.

    Nor is it a Civil Rights issue.

    But it is a Civil issue and was resolved in the area of the body politic.

    I predict that as a result, you will not see the same civil unrest you have seen in other states where judges took it upon themselves to short circuit the process.

  26. So, your “legislators changing the law” wasn’t a backhanded way of bringing in your “dont legislate from the bench” sermon? Or are you just truly that clueless?

  27. By issuing its 1999 ruling requiring Vermont to provide same-sex couples either marriage or civil unions, the Vermont Supreme Court saturated the state with eeevil Judicial Activism Mind Control Rays, which were so powerful that they not only foiled right-thinking citizens’ attempts to amend the state constitution, but also coerced the legislature itself into authorizing gay marriage. Thus, the Vermont state legislature is merely an instrument of eeevil Judicial Activism.

  28. I predict that as a result, you will not see the same civil unrest you have seen in other states where judges took it upon themselves to short circuit the process.

    Funny, I live in a state (MA) where the judges did just that, and I don’t recall seeing any “civil unrest”. Maybe I just slept late that morning.

  29. so far the only State who got it right

    un. be. leave. a. bull.

    Is this a problem with public schools? Are they not teaching basics of the three branches? checks and balances? Is it time to bring back School House Rock?

  30. MasterThief and Frank are just giving us an early glimpse of what one can look forward to in the rightsided blogosphere for the next week or two.

    A whole bunch of posts saying, “how come (insert state XXX here) cannot be like Vermont?”

    I fear this law is only going to cause the stupids to double down on their position.

    Good on you Vermont. Though I still prefer a different state’s maple syrup. Sorry about that.

  31. The original vote was 94-52, the override vote was 100-49 … so at least two people had to change their vote from ‘no’ to ‘yes’ in order to override.

    I think that’s slightly bizarre; I don’t understand the rationale which would cause you to vote against the gay marriage bill and then vote to override the governor’s veto of the gay marriage bill … unless you’re just opposed to the veto power.

  32. greg L – Actually, yes, I think that is the issue. I’m not being coy, snarky or anything else… I honestly don’t think the schools are doing a good job and educating basic civics principles including the role of the each of the branches of government. There’s also been a school of thought that courts should be strictly constructionist (i.e. if it’s not explicitly spelled out as a right it doesn’t exist) which appeals to certain types who like things black and white (so to speak). The countervailing attitude is, of course, that if it’s not explicitly prohibited it’s allowed, is an Evil Liberal Notion.

  33. I performed my first “commitment ceremony” for a gay couple just over seven years ago. Yesterday they announced that they were going out to Iowa in May or June to make it legal. It still won’t be recognized where they live in Illinois, but it’s inevitable that it will be someday.

    Seven years isn’t that long ago. When I preformed their ceremony there was no where in the US that they could actually get married … now they legally can, even if it won’t be recognized everywhere.

    Thanks to VT, we’re now one step closer!

  34. Greg @ 44: I really hope that bringing back schoolhouse rock isn’t predicated on people being ill-informed about their government. I’d much rather it just came back because it was the best thing ever.

  35. @Fred (48) … obviously not talking to myself, here!

    I would assume the Q in LGBTQ to stand for queer. Some of us use the term as a catch all for anything that isn’t the standard default societal options.

  36. Frank and MasterThief,
    Welcome to the pro-marriage side! I’m sure many will be tying themselves up in knots trying to show why this law is illegitimate in some way. Thanks for not doing so.

  37. @36 Greg: The point needed to be made.

    @39 Xopher: I only wish. Astroturf pays a hell of a lot better, and Sallie Mae is a harsh mistress.

    @48 Fred: It stands for “Lesbian, Gay, Bisexual, Transgender, and Questioning” (i.e. you don’t know what sexual orientation you are). It can also be GLBTQ, but LGBTQ became the in thing because lesbians got a double scoop of oppression. Yes, I work in academia, where these things are indeed Serious Business (TM).

  38. Freds, I first saw the Q in connection with a youth organization, where it stood for ‘Questioning’—that is, people who are still exploring their sexuality and haven’t settled on a label, or even figured out where in the n-dimensional orientation spectrum they fall (not every spot in that spectrum has a label). That’s most common among the young, of course, but we need to include youth in our vision for the future…because we won’t be there.

  39. Congratulations to the good people of Vermont. It’s especially noteworthy that the action in Vermont was a _legislative_ action, rather than a court overturning a law.

    My personal opinion is that it’s good public policy to permit same-sex marriage, and I would happily vote for legislators in my home state (Pennsylvania) who would work to recognize same-sex marriage here. But I _don’t_ agree that the United States Constitution compels that result. In that respect, I kind of agree with Clarence Thomas’s dissent in the Romer v. Evans case: the Colorado law was stupid, spiteful and unfair, but not unconstitutional.

    The appropriate, and the best, way to address this issue is by legislative act. Kudos to the Vermonters.

  40. aphrael 47: I don’t understand the rationale which would cause you to vote against the gay marriage bill and then vote to override the governor’s veto of the gay marriage bill … unless you’re just opposed to the veto power.

    Or you’re a narrowly-elected Democrat from a conservative area that opposes same-sex marriage but hates the governor even more. Or you’re tired of the Governor pushing the legislature around.

    Or, unlikely as this seems, you really changed your mind. Maybe a couple of them got calls from their not-quite-as-conservative-as-they-thought constituents, saying “What’d you vote against that for? We don’t care. Leave them gay folks alone!”

    But I think ledge/mansion powerplay is the more likely culprit. Remember the story about the young Congressman who kept referring to “the enemy”? A member of the leadership asked him whom he meant.

    “Why, the Democrats of course,” he replied.

    “The Democrats are the opposition,” explained the senior member. “The Senate is the enemy.”

  41. My bad– I meant Clarence Thomas’s dissent in Lawrence v. Texas, not Romer v. Evans.

  42. @47
    This is entirely hypothetical, I haven’t tried to look at who voted:

    It is possible it was a tactical maneuver to make the governor and those who honestly voted against the law think there were insufficient votes to overrule a veto and thus dodging messy shenanigans to make it impossible by making them seem unnecessary.

    It is also possible some of the legislators were from districts that they thought were split on the issue, in which case, so long as it passes, it is tactically sound to vote against it as the pro-marriage-[equality] people don’t care (since the bill passed), and the anti-marriage-[equality] people are happy with you, since you voted against it. With a veto to override, you may as well sneak back into the super majority so as to dilute the blame (since some of your constituents are going to be mad with you, may as well be on the side with the most targets).

    Either way, I salute those who did the right thing when it counted.

  43. aphrael @ 47

    I think that’s slightly bizarre; I don’t understand the rationale which would cause you to vote against the gay marriage bill and then vote to override the governor’s veto of the gay marriage bill … unless you’re just opposed to the veto power.

    Well, two people looked to change from ‘abstain’ to ‘yes’ — the ‘pass’ side gained 5, while the ‘no pass’ side lost 3.

    It could also be ‘politics as usual’ — you help out in a marginal vote and someone owes you a favor.

  44. Dennis – Justice Thomas’ dissent in Lawrence was a reference to a dissent in Griswold, which also started off describing the law in question as ‘uncommonly silly’.

  45. The amazing thing is, that in less than a week, we’ve doubled the number of states with full marriage equality.

    4 down, 46 to go …

    NH, NJ, and NY aren’t too far behind by the looks of things (NY already recognises ssm’s done in other states and nations anyway).

    Personally, I think both the legislature and the courts are appropriate places to gain civil rights, though honestly, I feel more comfortable with the latter, as the idea of ANYONE, representative or citizen referendum, voting on my rights just rubs me the wrong way.

    But regardless, I wanted to say thanks John, for your unwavering support of equality. It’s definitely been noticed.

  46. It is of course key that several legislators changed their vote on the second round, giving them enough votes to override the veto. The gay rights movement needs to look at how they did that and try to copy it. What is astonishing is how long it took in Vermont, a highly liberal state. I think the legislation realized which way the wind was blowing.

    The fight to keep a group disenfranchised from their rights costs a lot of money. It’s really in all their best interests if they just legalize it and move on. :)

  47. aphrael @47

    I don’t understand the rationale which would cause you to vote against the gay marriage bill and then vote to override the governor’s veto of the gay marriage bill

    I could see logic which says that clearly the Legislature intended for this to become law regardless of my personal opinion on the matter so I’m going to help make it so.

    Of course, you would have to imagine a non-rabid individual which, fortunately, I can.

    Rick @49

    There’s also been a school of thought that courts should be strictly constructionist (i.e. if it’s not explicitly spelled out as a right it doesn’t exist) which appeals to certain types who like things black and white (so to speak).

    Actually, when speaking of the Constitution, the constructionist point of view holds that if a right has not explicitly been granted to the government, it is retained by the people.

    Back in the day, there was a dispute about including the Bill of Rights in the Constitution. One side felt that there was no need because the document obviously did not allow for these rights to be abrogated by the government. They further argued that if the Bill of Rights was included, some might infer that these are the only rights being retained by the people and they didn’t want that.

    The other side argued that government has a nasty way of creeping into people’s lives and if not explicitly retained and documented, these rights might eventually be eroded. As we can see with the Second Amendment, this side was the most prescient.

    Marc Moskowitz @53
    Frank and MasterThief,
    Welcome to the pro-marriage side!

    I can’t speak for MasterThief, but I have always been on the pro-marriage side. I’m just not on the Judiciary making shit up side.

    Had they asked me my opinion, I would have said “fine with me”. And even though they didn’t ask, I answered anyway

  48. It’s especially noteworthy that the action in Vermont was a _legislative_ action, rather than a court overturning a law.

    OK, maybe it’s 8 years of George W. Bush that has turned the entire country into morons. To put it into terms you might get, please do not misunderestimate what the Court’s job is. They are not a rubber stamp for whatever the executive and legislative branches do. I know that’s how Bush understood them, but Bush was wrong and he isn’t you’re president anymore. Based on your Archie Bunker attitudes, you might have refered to our current president as a colored boy or a Negro. And even though the founding fathers owned slaves and probably never envisioned an african american being president, we don’t have to assume that the US constitution should be interpreted strictly in their context. Surprisingly enough, we didn’t have to amend the constitution to make it explicit that black people could also run for president.

  49. I predict that as a result, you will not see the same civil unrest you have seen in other states where judges took it upon themselves to short circuit the process.

    The wave of rioting, burning, and looting that overran Iowa last week was quite shocking. And pie. There was pie, too.

    when speaking of the Constitution, the constructionist point of view holds that if a right has not explicitly been granted to the government, it is retained by the people.

    Strange, as the 10th Amendment (the basis for the constructionist argument) holds that the rights to which you refer are retained by the “States respectively, or the people.” Not nearly the same thing.

    As people have said earlier, it helps to understand the laws about which you’re talking.

  50. Nope, John, this was exactly the right way to do it. And you’ll get no complaints from this right-winger. And people who don’t like this who are in vermont have several options, they can attempt to vote out the folks that voted for this, they can leave, they can deal with it. Similarly, people may want to move to Vermont, improving its tax base. It’s the market at work.

  51. OK, so I’ve got “Sufferin Till Suffrage” on a loop, (cause it’s a snappy tune) and I just noticed the sign the women are holding at the very beginning of the video. It says:

    “We voted out West. Why deny our rights in the East?”

    And I imagine someone with musical and cartoon drawing talent redoing the video to something like “Maudlin till Marriage” and it opens with a picture of people supporting gay marriage holding a sign that says “We were married out East. Why deny our rights in the West?”

  52. The bigots’ position will be that this should have been decided directly by The People, not passed in a wheel-and-deal vote by a bunch of elitist politicians.

  53. Greg London @71: Surprisingly enough, we didn’t have to amend the constitution to make it explicit that black people could also run for president.

    Actually, the Constitution does require US citizenship to be President. The Dred Scott decision (1857) made it clear that black people weren’t citizens. The 14th Amendment was required to overturn this. In addition, the 15th Amendment was required to guarantee blacks the right to vote.

  54. As usual, mythago is right. And when a statewide referendum grants marriage equality, they’ll say it should have been decided by the churches or some shit. Can’t win with bigots.

  55. #aphrael@66:
    I think that Griswold was wrongly decided too (and that the law in question in Griswold was uncommonly silly and ought to have been repealed by the legislature), but that’s an argument for another day.

    #Greg@71: Huh? Are you arguing with me? My point isn’t that a court should _never_ overturn a law when the law is actually unconstitutional. Sometimes a legislature really does pass an unconstitutional law.
    My point is that, in my opinion, a state law that limits marriage to one man and one woman is _not_ unconstitutional, therefore a court shouldn’t overturn such a law for that reason. Such a law is bad policy on so many levels– it’s stupid, and unfair, and economically detrimental (I remember reading how wedding-services businesses in California suddenly boomed once same-sex marriages became legal there), and ought to be repealed by the legislature, and I’m glad that Vermont did so. Oh, and, we _did_ have to amend the constitution to make it explicit that black people could also run for president: that was part of the point of the citizenship clause of the Fourteenth Amendment.

    Were you referring to me with your “based on your Archie Bunker attitudes, you might have refered to our current president as a colored boy or a Negro” comment? Because, um, wow.

  56. mythago @75

    The bigots’ position will be that this should have been decided directly by The People, not passed in a wheel-and-deal vote by a bunch of elitist politicians.

    There is no provision in the Vermont Constitution for referendum. That argument won’t fly here.

  57. David, I think you also need to take into account the 9th amendment, which says that the enumeration of certain rights shall not be construed so as to deny or disparage the existence of other, unenumerated rights.

    The listing in the bill of rights was *never intended* to be a complete list of all of the rights the federal government was not allowed to tread upon.

  58. aphrael@47
    I think that’s slightly bizarre; I don’t understand the rationale which would cause you to vote against the gay marriage bill and then vote to override the governor’s veto of the gay marriage bill … unless you’re just opposed to the veto power.

    Sonny Audette, a Republican who voted against the bill and abstained from the final vote had said that he disliked the fact that the Governor (executive branch) tried to insert himself into the legislative process by declaring he would veto the bill before it had actually passed. He said what the governor was doing was interference.

    Three Democrats changed their vote from anti-Same Sex marriage to override the veto saying that they were supporting the will of the people and the legislature.

  59. Frank, are you really saying that the bigots are going to refrain from making that argument because it is factually incorrect?

    They can always fall back on the “powerful homosexual lobby” argument. That vote was BOUGHT, probably with money from San Francisco.

  60. Mythago: they can try. They can run for election on the platform of repealing this law. I would be shocked if it worked.

  61. Dennis #78, you do realize that states have their own individual constitutions, and that they’re all different, right? So an identically-worded law can be constitutional in one state but not in another.

  62. Jeremy #85: I’m well aware. For example, Pennsylvania courts have interpreted Article I, Section 8 of the Pennsylvania constitution

    (“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed by the affiant”)

    as being more broadly protective of individual liberty than Amendment IV to the United States Constitution

    (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

    It’s the prerogative of Pennsylvania (like any other state) to interpret its constitution as it likes, so long as the interpretation doesn’t take away a right that the U.S. constitution grants.

    I’m not generally expressing any opinion about state constitutions because I’m not that familiar with them.

  63. @77:Xopher, I don’t think the point is to convince the bigots. The point is to marginalize them. Make it clear that their views are in conflict with the principles of equality on which this country was founded.

    @78: Dennis, you’re begging the question. When a state supreme court has ruled in favor of same sex marriage, their written opinion has invariably been because the state’s existing marriage laws are in conflict with the equal protection provision of that state’s constitution. Another way of saying that a law is “in conflict with a provision of the constitution” is that the law is unconstitutional. Your opinion not withstanding, a bunch of people who devote their lives to determining the constitutionality of laws have found those laws unconstitutional.

    Yes, I’m saying their opinion is more considered, more grounded and ultimately a more important opinion than yours, or mine for that matter. It’s the same reason why when I’m sick, I don’t ask a random person off the street what’s wrong with me. I go to a doctor.

    I’m thrilled the Vermont legislature passed a law that passes constitutional muster. That doesn’t somehow make lay opinions of the constitutionality of marriage laws in other states more valid (or less valid).

  64. Can’t win with bigots.

    I think the main reason Obama was able to get elected was the fact that enough old bigots had finally died off, replaced by younger people who didn’t care about race.

    John has a link to a racist who changed his ways in his old age, but I think he is the rare, rare exception. I really don’t think you can win with bigots or change their bigotry, I think the only thing we can hope for is that they die off and the younger generation that replaces them is a little smarter than we were.

    The depressing thing of that is that anyone who is espousing homophobia today would be the racist bigots of a few decades ago. sometimes I wonder if we’ve really made any progress, or if we’ll just keep finding new forms of bigotry for the bigots.

  65. John @87:
    Good point. I don’t know squat about, say, the Iowa constitution (as I’ve attempted to note in 86 above), so if the Iowa Supreme Court says that a given law violates the Iowa Constitution, I’ll take their word for it. Naturally I would hope that the Iowa Supreme Court uses sound principles of constitutional interpretation when they arrive at this conclusion. But as I point out in 86, I agree that this sort of thing happens all the time.

    I guess that if the court decisions are all being made on the basis of state constitutions, then my point about federal constitutional law is just shadowboxing against an argument that isn’t being made.

  66. I don’t believe state courts could test laws against the US constitution even if they wanted to – wouldn’t that be a federal-court jurisdiction thing? So if I’m correct, “unconstitutional” in this context is ALWAYS referring to the relevant state constitution.

  67. Jeremy: state courts test things under the federal constitution all of the time. Any such decision is, of course, appealable to the federal courts.

  68. Jeremy: if you are in state court, and you want to attack the (federal) constitutionality of the law, you remove the case to the federal court.

  69. Greg@88: There is a lyric in the Peter Gabriel song “Not One of Us” that sums this up, I think: “how can we be in/if there is no outside”. I fear that the concept of the outsider is wired into people somewhere, but that doesn’t absolve us of the responsibility to recognize and address it.

  70. Adding to 91 and 92:

    Also, the SCOTUS can test a State Constitution. State’s can do what they want, mostly, but they can not be more restrictive than the US Constitution.

    A State, for instance, can not abrogate the 1st Amendment, say, and get away with it.

  71. I guess that if the court decisions are all being made on the basis of state constitutions, then my point about federal constitutional law is just shadowboxing against an argument that isn’t being made.

    Yup.

    I don’t believe state courts could test laws against the US constitution even if they wanted to – wouldn’t that be a federal-court jurisdiction thing?

    The states are bound by the federal constitution. Therefore no state constitution can be less protective of individual rights than the federal constitution, but they can be more protective (and some are, in some places).

  72. Dennis, as far as I know, every one of the four states who have said that equal protection requires gay marriage have done so while interpreting their state Constitutions, rather than the federal one.

  73. Aphrael:
    Well, that answers that, then. I’ll just crawl back under my rock and resume writing my great treatise on the Third Amendment.

  74. and resume writing my great treatise on the Third Amendment.

    Now there’s an Amendment that doesn’t get much play.

    Currently…..

  75. Dennis –

    “My point is that, in my opinion, a state law that limits marriage to one man and one woman is _not_ unconstitutional, therefore a court shouldn’t overturn such a law for that reason.”

    But that’s just your OPINION… explain to us why your opinion should hold the day and the legal opinions of the actual court should not.

  76. This is the best way it could go, the legislature voting for it. No matter that Barney Frank says, Scalia has repeatedly said it’s up to the states, and so there is no way Scalia would ever vote to overturn this law no matter what those on the right might hope, or hateful people on the left predict.

  77. I come from Vermont (8 generations, woo!), and what I’ve found to be the case is that the vast majority of Vermonters just want to be left alone to do what they want or need to do. We’re talking about a state who encourages folks like Fred Tuttle to run for senate to prevent a out-of-stater from getting in “because it’d be an easy state to run in” (http://en.wikipedia.org/wiki/Fred_Tuttle).

    Frankly, I don’t think Vermont gets enough love for doing the civil union thing back when NO ONE was coming close to the issue. This new act is simply the next logical step on a process that was started earlier.

    Since this is a thread for Vermont love, some Ralph Waldo Emerson: “A sturdy lad from New Hampshire or Vermont, who in turn tries all the professions, who teams it, farms it, peddles, keeps a school, preaches, edits a newspaper, goes to Congress, buys a township, and so forth, in successive years, and always, like a cat, falls on his feet, is worth a hundred of these city dolls.” —Ralph Waldo Emerson “Self-Reliance,” 1841

  78. I must say that I am continually surprised about how few Americans really do understand the legislative process.

    Local laws are subordinate to state laws.
    State laws are subordinate to state constitutions.
    State constitutions are subordinate to the federal one.

    Ergo, all the way down to the local level, laws–whether passed by legislative bodies or direct popular vote–have to pass the muster of ALL of those instruments to which they are subordinate.

    The people can vote in new laws (either directly or via legislative bodies) all they want, but if those laws violate any of the larger sets of laws above them, the law will be invalid, and will be overturned by the judiciary, as is their right and responsibility in our system of government.

    If you want to pass a law that violates a larger set of laws, you have to change that larger set first, or your law is going to get tossed out by the courts.

    You cannot, for instance, pass a law that says only right-handed people are allowed to purchase property in a given zip code. Regardless of whether the people in that zip code want that law, it’s a clear violation of the equal protection clause in the U.S. Constitution. Thus, if you really, really want that law to go into effect, you have to change the constitution first.

    (This is, btw, why the passage of DOMA was so critical and why Bill C should never be disparaged for doing so. Had that not passed, we would’ve gotten the federal marriage amendment, which would’ve made it impossible for any of these state-level changes to happen.)

  79. Rick–
    I’ll preface by saying that the whole issue of constitutionality under the U.S. constitution is probably moot, since Aphrael has already shown that thus far, the courts that have struck down single-sex marriage bans have all been state courts construing state constitutions.

    But putting that aside, the short version of my answer is that I believe that the originalist philosophy is the most intellectually honest approach to constitutional interpretation– that is to say, I agree with the methodology that Scalia _says_ that he is applying (although reasonable people can differ about whether he really does apply the methodology that he claims to be applying).

    Under this analysis: the U.S. Constitution doesn’t say anything about who can marry whom (but see discussion below). Therefore a state law that says who can marry whom doesn’t per se violate the U.S. Constitution.

    “Bullshit!” you’d call, citing Loving v. Virginia, 388 U.S. 1 (1967). That’s the case where the Supremes struck down the Virginia miscegenation law. But the originalist would reply that the original understanding of the equal protection clause of the Fourteenth Amendment was to prohibit racially discriminatory laws(*); the law in Loving was squarely within the equal protection clause’s prohibition; ergo the equal protection clause pwns the Racial Integrity Act of 1924. QED. The opinion also hangs its hat on so-called “substantive due process”, but an originalist will tell you that “substantive due process” is basically a bunch of handwaving that a judge pulls in order to arrive at the result that he wants. (**)

    (*) This is part of the point of departure between originalism and other theories of constitutional interpretation. An originalist will say that the equal protection clause is about prohibiting _racially_ discriminatory laws, not about prohibiting other kinds of laws that might be discriminatory. By way of illustration, if the equal protection clause also inherently prohibited laws that discriminate on the basis of sex, then what would be the point of trying to enact an Equal Rights Amendment to the Constitution (since it would be redundant of the equal protection clause)?

    (**) Which brings me back to Griswold. Griswold was about a Connecticut law that prohibited contraceptives (really). The Supreme Court found that it violated a “right to marital privacy” that was found in the “penumbras” and “emanations” of other explicit constitutional protections. Justice Black said, um, the constitution doesn’t say anything about privacy per se; rather, it protects individuals from certain specific kinds of invasion of privacy. I agree with Hugo Black ([http://en.wikisource.org/wiki/Griswold_v._Connecticut/Dissent_Black])– to say that there’s a constitutional right of privacy is not helpful, because nobody really knows then what’s constitutional and what’s not– to say that the constitution protects rights that are nowhere specified until the judge makes them up out of whole cloth and proclaims that he has discovered them in the “penumbra” is just not intellectually honest.

    But Black’s view lost, so there you go.

  80. o matter that Barney Frank says, Scalia has repeatedly said it’s up to the states, and so there is no way Scalia would ever vote to overturn this law no matter what those on the right might hope, or hateful people on the left predict.

    Given his track record in recent years, I’m not so sure about that. He started out as fairly principled, but it just seems to me that in recent years he’s gotten more and more self-justifying in his opinion.

  81. Tal @104–

    I’m with you up to:
    “You cannot, for instance, pass a law that says only right-handed people are allowed to purchase property in a given zip code. Regardless of whether the people in that zip code want that law, it’s a clear violation of the equal protection clause in the U.S. Constitution.”

    I can’t agree with this. Left-handed people aren’t a protected class under the equal protection clause, so such a law would not be unconstitutional.

  82. Speaking as one who criticized the California Supreme Courts attempt to find emanations and penumbras to create gay “marriage” in California here, I take no issue with the Vermont legislature’s action. I disagree with it, but then, I disagree with what most American legislatures do these days.

    Regardless of what one thinks of any specific law, legislation by the legislature is the correct way to go about creating new law in a representative democracy. It’s so correct, it’s almost tautological.

    Despite the caricaturing conjectures, I don’t think you’ll find many social conservatives complaining about the process even if they hate the result. Conservatives tend to respect process; their opposition to legislating from the executive or judicial branches is seldom simply tactical. And by conservatives, I mean genuine conservatives, not the end-justifies-all-means neocons.

  83. Dennis @# 107: “Left-handed people aren’t a protected class under the equal protection clause…”

    They’re not persons?

    “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.”

    I don’t see anything in there about protected classes.

  84. DGLewis@109: You didn’t think that you could tell what a law means just by _reading_ it, did you? Silly. After all, if it were that easy, then us lawyers wouldn’t be about to bill $395/hour.

    More seriously, consider what I said above about the proposed Equal Rights Amendment. If the equal protection clause means what you think it means, then the ERA would have been redundant. When the ERA was a hot topic, both sides thought it was important precisely because it would have imposed new constitutional restrictions on government action that weren’t already covered by the equal protection clause.

  85. Oh, another Third Amendment fan. My heart sings!

    Dennis @174, Constitutional protections apply outside of protected categories – it’s just that they receive the lowest level of scrutiny . A law banning left-handers from owning property in an odd-numbered Zip code is probably not rationally related to any legitimate government interest and would thus be overturned.

    Anyone tempted to engage with Vox there should be aware that his first paragraph is the law equivalent of somebody pretending to be a mechanic by pointing at your carburetor and saying “I see you need to work on your head-gasket doohickey there.”

  86. Mythago@112, I just find it hilarious that VD does not consider himself a neo-con. His other posts and views show him to be firmly to the right of the right.

  87. Mythago@112.
    (1) Love the Third Amendment. Basically the only constitutional amendment that (a) has a clear, unambiguous meaning and (b) actually solved the problem at issue so convincingly that it’s never seriously been brought up again. Plus, who wants a bunch of soldiers staining the upholstery anyway.
    (2) Good point about rational basis analysis– but I can’t, off the top of my head, remember a law getting struck down on that basis.

  88. It’s pretty hard to make a law so stupid it won’t survive rational basis.

    When I was in law school, we tried to craft a Moot Court problem around the Third Amendment. Since it was Moot Court we needed a fact pattern that could go either way – say, the President ordering a private citizen to rent out a room in her house to a National Guard member during a state of national emergency. We scoured the case law looking for cases, or laws, having to do with the Third Amendment.

    There aren’t any.

  89. I agree, Corby, and I’d also like to point out, to those too young to remember, that VD is what we used to call STDs.

  90. VD: Speaking as one who criticized the California Supreme Courts attempt to find emanations and penumbras to create gay “marriage” in California here, I take no issue with the Vermont legislature’s action. I disagree with it,

    Wow. Are all the bigots getting nice fancy flowery language now? Put lipstick on a bigot, it’s still a bigot.

    I don’t think you’ll find many social conservatives complaining about the process even if they hate the result.

    unless the process is the judiciary saying you promised these rights in the constitution, and this law violates those rights. You know, the judiciary doing it’s job.

    no, what you mean to say is that you attempted to portray the judiciary branch doing their job of striking down unconstitutional laws as “not part of the process”, and then you insisted that the only “real” way to get rights was through legislation. But now that the legislative body in a state actually jumped your artificial hurdle, well, you can’t complain about it now, can you?

    So, what you mean to say is that given that bigots said the only way to legitimately get gay marriage was through legislation, then the bigots can’t complain when they get gay marriage through legislation, can they?

    What bigots will do, though, is continue to pretend that the judicial branch is not allowed to do its job of protecting people’s rights. I really really really do hope that more states continue to ignore this bigotted nonsense.

  91. Dennis: For now. But the debate isn’t going away anytime soon

    It would if the bigots would quit pushing their bigotry.

    You think a court ruling that hey, you promised equal rights here, and this law doesn’t respect those rights, you think that horrible overstepping of your imaginary judicial boundaries is going to protect the US from something? What? Another Dred Scott decision? What future unstated boogeyman do you realistically think you’re protecting us from by denying real human beings their rights today?

    It’s bullshit. You’ve dressed yourself up as some sort of knight saving the kingdom from some terrible dragon, but the dragon isn’t real, and you just lanced a bunch of innocent bystanders. You’re willign to inflict real damage today on real people in exchange for defending against some nonexistent, unspecified boogeyman of the future? No thank you, Don Quixote. I don’t want that kind of “help”.

  92. Greg @119: “finding emanations and penumbras” is flowery language that has pretty much nothing to do with the precedential value, or legal validity, of In Re Marriage Cases. The idea is that there are certain rights which are not explicitly set out in the Bill of Rights but which can be inferred; for example, since the Fourth Amendment protects against unreasonable search and seizure, the right to privacy is said to be from the ‘penumbra of the Fourth Amendment’.

    Now, I suppose if you believe that there is no fundamental right to marry and SCOTUS should never have held we have a right to privacy you can throw a tantrum about that – hell, I actually DO know a legal scholar who thinks Marbury v. Madison should be thrown out – but here, that is an attempt to divert the conversation by attacking long-standing precedent on which In re Marriage Cases relied. As John already noted, there’s a whole threat re the Iowa decision where some of us are still waiting to hear a more cogent legal analysis than “blah blah activist court blah federalism blah OMG PIE!!!11!”

  93. mythago 117: It’s pretty hard to make a law so stupid it won’t survive rational basis.

    I have to keep reminding myself that ‘rational basis’ is a legal term-of-art and doesn’t have a lot to do with the ordinary meaning of that term. Otherwise I’d be sitting here saying that no legitimate state interest is served by restricting marriage to one man and one woman; that such a law has no rational basis—and in fact I’ve never heard a rational argument that defended such a law, except the supremely selfish “I want [insert offensive term meaning gays and lesbians] to pay higher taxes because that saves me money on mine,” which while far from a legitimate state interest passes the test of rationality.

    But I know legal terms don’t always mean what they seem to mean, and that all those idiotic and hysterical “Save The ***INSTITUTION***OF***MARRIAGE*** From The Evol Communists Terrorists Mind-Bugging Martians Hoe-Moe-Sexiculs” laws would have been challenged by now if ‘rational basis’ meant what it sounds like it means.

  94. Dennis, as the law is interpreted, such a law would not be constitutional. The argument would be that it deprives right-handed people of liberty (the right to purchase property) without due process of law; because the law is not rationally related to a legitiamte state objective, the court would overturn it.

    DG Lewis: the due process and equal protection clauses are difficult to interpret. The state must be allowed to discriminate among its citizens, as otherwise it could not ban practicing medicine without a license. So the question is which discriminations are allowed, which the clause doesn’t explicitly answer. Courts have answered it by saying that discriminations which are rationally related to a legitimate state interest are allowed, unless the discrimination is based on some sort of suspect classification (originally just race, but now also a number of other things, including – in some states but not others – sexual orientation); for those the state has to demonstrate that the discrimination is narrowly tailored to serve a compelling state interest.

  95. shit. dropped one word and changed teh whole meaning. that should be:

    You think a court ruling that hey, you promised equal rights here, and this law doesn’t respect those rights, you think stopping that horrible overstepping of your imaginary judicial boundaries is going to protect the US from something?

  96. Dennis, while it’s pretty rare that rational basis is used to void a law, it does happen from time to time. Both Romer and Lawrence allegedly used rational basis analysis, but it’s fairly clear that they weren’t.

  97. DB @ 115 — “Good point about rational basis analysis– but I can’t, off the top of my head, remember a law getting struck down on that basis.”

    I looked it up. Here’s what I found:

    In Romer v. Evans, a Colorado constitutional amendment (adopted by initiative…surprise surprise) was at issue specifically prohibiting any law or policy that would enable homosexuals to make any claim of discrimination — SCOTUS (Kennedy writing for the majority) found that it was not rationally related to a legitimate state interest.

    Also, in Cleberne v. Cleberne Living Center, the SCOTUS would not give suspect class status to the mentally disabled, but determined that requiring special use permits for group homes for the mentally disabled was not rationally related to a legitimate state interest.

    That’s all I could find.

  98. Greg- it’s hard to tell whether you’re trying to reason or if you’re just being inflammatory. But the fact of the matter is that not all forms of bigotry are unconstitutional or unlawful. Some are, some aren’t. Some forms of bigotry that aren’t presently unlawful probably should be. For example, I agree with you that opposition to same-sex marriage is bigotry–I’m on record as saying that I oppose that form of bigotry. If I were in my state’s legislature, I’d proudly vote to recognize it.

    But you’re not going to convince anyone that you’re making a serious argument if you continue to suggest that anyone who doubts that the U.S. Constitution requires same-sex marriage to be legalized is a bigot.

  99. LB – good recollection on Cleberne. That said, i think it’s pretty clear that Romer wasn’t actually using rational basis review. Some commentators have called it “rational basis with a bite”; I think it’s just a stepping stone towards intermediate scrutiny.

  100. Fred @48: “I am almost afraid to ask…. “LGBTQ” what does the Q stand for?”

    Quiescent.

  101. dennis: But the fact of the matter is that not all forms of bigotry are unconstitutional or unlawful.

    why are you even telling me this? this has nothign to do with what we’re talking about unless you’re really just interested in making sure bigotry can be legally sanctioned.

    if you continue to suggest that anyone who doubts that the U.S. Constitution requires same-sex marriage to be legalized is a bigot

    Funny thing is, that’s not what I’m suggesting. What I’m suggesting is this: what boogeyman are you so afraid of that you’re willing to harm real live people today?

    I know you seem to get tripped up when people talk outside of yoru frame and try to reframe what people said into strawmen so it fits your worldview, so I’ll break it down into little steps for you:

    (1) Can you acknowledge that denying people the right to gay marriage is in fact inflicting damage on them?

    (2) Can you acknowledge that if a judge says “our constitution says you’ve got to extend the right to marriage to gays, and this law doesn’t do that” then it’s within the precious process, that it is actually part of their job, rather than some kind of vigilante judges?

    (3) Given that you are willing to inflict the damage on people (1) when judges are actually doing what is within their job description (2), what is it you think you are protecting the people of the US from?

    If you want to deal with what I’m actually suggesting, rather than your strawman version of it, then this is what I”m suggesting: you’re harming real people (1) today by pretending judges aren’t doing their jobs (2) all in some Don Quixotic effort to avoid… something. What, pray tell, is this horrible future thing that you hope to avert, such that it is so bad that we must inflict damage (1) on real people today?

    I’m suggesting (1) and (2) are flat out true. I’m asking what boogeyman you think you’re protecting us from?

  102. Frank @99 and mythago @119:

    We’ve been talking a lot about the Third Amendment around my house recently. When we were in Ireland, the castle we were staying in had been burned in the thirties by the IRA because it was used for quartering black and tans. Can you imagine coming home from holiday to discover the locals had burned your house to the ground rather than let the police stay there?

    Thank goodness for the third amendment!

    (There’s also a great scene in the YA novel HOW I LIVE NOW where the American protagonist freaks out when the British army takes over her British cousins’ farm and her cousins are like — what? they have every right to all our crops while we starve in the streets.)

    Something you take for granted until you see how it plays out in other countries…

  103. Oh, if anyone is interested in seeing the type of response the Vermont decision *is* getting, I found this one, from the Nat’l Org. for Marriage (there’s irony for you!) rather amusing:

    “But we take heart in knowing that this vote was not representative of what Vermonters understand marriage to be. We know that the Vermont Legislature did everything in its power to avoid allowing Vermonters to vote directly on the future of marriage.”

    So the argument is apparently “this is not the will of the people!”

    ‘tards.

  104. Greg@132: (1) is true. (2) is debatable, depending upon how I parse what you say. Your proposed axiom (2) is actually a bunch of discrete arguments compounded together.

  105. Go Vermont.

    Can I also, Scalzi, that it is very nice to have someone with no direct stake in the issue to be so consistently supportive on GLBT issues.

    Now all you need to do is make your ambiguously gay characters (well, ambiguously male, anyway – TAD, anyone?) unambiguously gay, and you will satisfy all my unreasonable demands! Which I’m sure is, you know, very important to you.

  106. aphrael @ 130 –

    It wasn’t recollection — I looked it up. And by that I mean I did a quick Google search and looked over a couple of Wikipedia pages. So, in light of the poor quality of my “research” I’m inclined to believe you with respect to Romer.

    I vaguely recall reading Romer in law school, but I don’t have a nuanced recollection of the holding. My guess (without having read Romer recently) is Kennedy threw in some dicta about the law not being rationally related to a legitimate state interest and various legal commentators/scholars had a stroke about it and/or made it the subject of their law review article because they couldn’t think up anything more interesting to write about.

    I think the “rational basis with a bite” analysis is nonsense…basically the term means “instance in which rational basis was arguably applied and those challenging the law at issue prevailed.” While rational basis analysis is fatal to the challenger for all practical purposes, there seem to be a few very rare occasions in the history of jurisprudence where a legislature did something so utterly ridiculous that the SCOTUS couldn’t let it go. I don’t see that as a concept that merits a separate name, or implies a different level of scrutiny.

    Of course, all of this is academic for purposes of this discussion (and virtually any other discussion).

  107. Dennis, 1 and 2 are just a setup for (3). What’s the boogeyman you think you’re defendign against that you’re willing to sacrifice someone else’s rights and harm other people’s lives?

  108. “Now all you need to do is make your ambiguously gay characters (well, ambiguously male, anyway – TAD, anyone?) unambiguously gay, and you will satisfy all my unreasonable demands! Which I’m sure is, you know, very important to you.”

    I hear things like this from time to time. What would you want to see in a book? A mention of a homosexual relationship, brokeback type of love story in the OMW universe, gay sex? Seriously though, is it really important to point out that a given character is gay, black, white, etc?

  109. We’ve been talking a lot about the Third Amendment around my house recently.

    Israeli troops are known to confiscate Palestinian homes and use them as observation posts, command posts, etc, for days and/or weeks at a time.

  110. Seriously though, is it really important to point out that a given character is gay, black, white, etc?

    Yes.

    This was discussed at some length during RaceFail, but the gist of it is: if you don’t, everyone assumes the characters are straight and white.

  111. Fred, have you read The Android’s Dream? I query whether you have, given that it’s not set in the OMW universe.

    In it, there is a relationship between a male and someone called “Sam”, who is not identified as male or female. Scalzi commented shortly after the book came out that he didn’t KNOW what gender Sam was. I thought (and still think) that’s a copout, largely for the reasons aphrael said.

    This is of course a massive side issue, and I hope my flippant comment doesn’t turn into a threadjack.

    Main issue is – yay Vermont, and generalised yay for scalzi for sticking up for people when he doesn’t have a direct stake in their problems.

  112. #141: “This was discussed at some length during RaceFail, but the gist of it is: if you don’t, everyone assumes the characters are straight and white.”
    -ok, but who really cares? I want to read a great story not get caught up into their race, religion, sexual preference etc. Am I alone in that?

    Reminds when Dumbledore was declared gay after the series was over. Who really cares? What was the point? Now, if Dumbledore had a significant other that was male then yippie for LGTB types but if it has nothing to do with the story then what is the point other than the author trying to make a social statement? In which case who cares what a author’s opinions are, just shut up and entertain me.
    Now I could see where the fact was part of the story, maybe the partner has the physical strength to save his partner that a female character would not, that would make sense, make a point for those who need it and support the story. I would have no problem with that at all. But to state that so and so is “black” or is gay! and then that has nothing to do with the story? Seems stupid.

  113. Now let’s see how all the people who use “judges shouldn’t legislate” as an excuse for not being able to handle same sex marriage find a way around this one. I’m sure they will try to find a way to explain how this still isn’t the right way to do it.

    Reading the New York Times article on the vote, I found this argument:

    Steve Cable, the president of Vermont Renewal and the spokesman for the Vermont Marriage Advisory Council, two groups that opposed the measure, said he felt the process had been “stacked” in favor of the bill’s passage from the start, with the Democratic leaders of the House and Senate rushing the bill through and not giving opponents enough time or opportunity to state their case.

    “The whole process has been shameful from the very beginning,” Mr. Cable said. “If the process had been fair in allowing both sides to have reasonable debate on this and allowing all of Vermont to engage, then fine, let whatever happens happen. But that’s not the way this came down and I think the next election cycle is going to be very interesting.”

    It’s not that different from the judges argument. Nevermind that this is the way that government works, if you don’t get the result you wanted cry foul.

  114. *headdesk* Issues that have been discussed much elsewhere, Fred, and probably don’t need to be discussed again here (given that you’re not going to change your mind).

    Go Vermont! Go on topic discussions!

  115. And courtesy of my other favorite blog besides this one, i.e. Balloon Juice, here’s a bit of wingnut pushback on the vote:

    Family Research Council (FRC) President Tony Perkins today condemned the vote of the Vermont State Legislature to overturn the Governor’s veto on same-sex “marriage” as well as the vote by the District of Columbia City Council to recognize same-sex marriages performed in the 50 states.

    “Same-sex ‘marriage’ is a movement driven by wealthy homosexual activists and a liberal elite determined to destroy not only the institution of marriage, but democracy as well. Time and again, we see when citizens have the opportunity to vote at the ballot box, they consistently opt to support traditional marriage,” said Perkins.

    “The vote today by the D.C. City Council was a direct affront to the federal Defense of Marriage Act. The radical Left wants to destroy the traditional union of one man and one woman across the country and they will not rest until they do so.”

    Yes, you heard right. Actions by a duly elected legislature are a threat to democracy. These people are strange.

  116. This news makes me so happy, I’m crying right now. I don’t live there anymore, but Vermont is my home. This decision, and the cultural mood there that brought it about are some of the reasons why.

    I’m just so proud I could burst.

  117. Fred, Re: Dumbledore
    It came out because she was asked by a fan if Dumbledore ever had a relationship with someone. I’m sure you’re aware of both writers having lots of notes and thoughts about characters that don’t make it onto the page, and fans wanting to know these things. I’m not sure why you find this (e.g. talking about character stuff that didn’t make it into the book) objectionable.

    As for the Vermont decision, I have been struck by the lack of reaction at least from what I’ve seen in the right. This is partly because it’s just 4 days after Iowa, but also there seems to be little enthusiasm to fight against this in a way not involving assertions of how we should all live under a Christian Teleology and tired rants about “judicial activism”.

  118. Way late on this, but just chiming in to say that it’s awesome that the Vermont legislature pushed this through. I definitely like that this was a legislative act and not a judicial decision–not because I think judicial decisions are invalid or any such nonsense, but because a legislative act is a much clearer sign of hope.

    If a Supreme Court rules a law unconstitutional, at the bottom all it means is that a very small group of people has rendered a legal opinion–it does not necessarily follow that there has been a shift in the attitudes of that State. A supermajority in the legislature, otoh, is a much stronger statement in that it is a clearer indication that the constituencies of these reps have begun to change their minds.

  119. Actions by a duly elected legislature are a threat to democracy.

    I look forward to the day when all public business is conducted via town council meetings. Or the popular initiative process. (California can tell you how well that works. And no, I don’t just mean Prop 8.)

    Seriously: if the population of the state of Vermont is happy to elect a legislature to raise taxes and regulate medicine and other industries, and repair the roads, all of which have far more direct impacts on the daily life of the average Vermonter, they should also accept the legislature’s decisions here.

    That, or they vote them out next election. That’s how the process works.

  120. Yay Vermont!

    I only wish Magic Hat beer was distributed out here so I could buy some to celebrate.

  121. cofax:

    “I look forward to the day when all public business is conducted via town council meetings.”

    *Gilmore Girls flashback* (Yes, GG is like Acid)

    ….when the whole of the US is run like Star’s Hollow, it will be a very, very scary place. Does Tony Perkins really want the Taylor Doosie’s of this world in charge of making ALL the laws?

  122. Diana @134: Normally I hate being the self-righteous twerp who says “I told you so,” but yeah, that was a no-brainer. If a state legalized same-sex marriage through a straight-up popular vote, the assjacks would STILL be insisting it did not reflect the Will Of The People.

  123. Anyone (Fred included) who doesn’t get why it’s important for minority status to be mentioned has managed to go through life with it never being important to *them* that the majority of fiction defaults to straight, white men, just like the power balance in the world defaults to straight white men.

    As for the “OMG, they dasen’t dare let it go to a popular vote” concept, those people need to stop identifying as Americans. Because America is a republic, not a full fledged, everything gets voted on by everyone who can vote type democracy. If you can’t cope, you need an entirely different system. If the concept of allowing a popular vote any time anyone wants one sounds like a good idea to you, I can only call you an idiot, and move on.

  124. Jeremy @90, aphrael @91, Dennis @92, see http://www.uscourts.gov/ outreach/resources/fedstate_lessonplan.htm at the very end under Federal Questions. State courts can interpret the Constitution and Federal laws, if it bears on a State law. That review is ultimately reviewable by the U.S. Supreme Court, but not lower U.S. Courts.

  125. Exactly, Josh.

    We don’t have mob rule here. That’s a large part of what our Constitution was designed to prevent. Protecting individual rights from the whims of the majority is a big deal.

    I wonder sometimes what the social cons think about states in which an anti-marriage law HAS come up for a vote and failed. Like Arizona. Was the will of the people of that state not good enough?

    Also, I want to go back upthread a bit and drag out that tortured left-handers analogy.

    The bit in the equal protection clause that’s key is the “person” designator. This grants equal protection on the basis of one’s status as a person, and all the inherent traits therein. It shouldn’t be (and isn’t, usually) construed to grant protections based on behavior.

    What this means is that laws specifically discriminating against people on the basis of some intrinsic trait–like being left-handed–are invalid, but laws discriminating on the basis of behavior–like smoking–are not.

    This is why it’s legal to refuse to rent an apartment to someone who smokes, but not legal to refuse to rent to a parent.

    This is, of course, why it’s been so important for GLBT rights activists to resolve the “inborn v. choice” thing. If, as the right argues, being gay is a choice, then it’s something that cannot be protected under that clause.

    (There’s another note in here about impulse v. action, but I’ll leave that for another time.)

    That said, I must say that I think the equal protection clause is a flimsy basis on which to argue for same-sex marriage.

    The better argument, IMHO, is the state interest one. This puts the onus on the state for defending their reasoning behind dictating the gender of one’s civil marriage partner.

    There are plenty of legitimate reasons why the state may want to limit other things about one’s marital partners–age, relationship, number of partners–but there are no legitimate reasons to limit gender.

    In fact, virtually all the arguments in favor of this boil down to two things:

    1. It’s always been done this way

    2. The state has an interest in what kind of households raise children.

    And neither of those hold water. The first is preposterous on its face, and the second presumes that the primary function of the civil contract of marriage is to provide legal inheritance status for offspring.

    I’d really like to see more cases go forward on this basis than trying to keep flogging the equal protection clause.

  126. Regarding the opposition’s response, and claiming that it wasn’t the will of the people… they’re full of it. Maybe in some other state you might get that to fly, but anyone who has bothered to LIVE in Vermont can tell you it’s one of the most truly representative governing bodies I’ve heard of to date.

    How many folks here can honestly say they’ve met all of their senators and representatives? I would hardly say I was close to them, but I knew my reps and senators, and knew that if it came to it, I could call them up and THEY’D LISTEN (regardless of whether they agreed). That’s at the local, state, and federal level.

    “Not representative” is not valid here.

  127. Tal @158 – it is not true that laws discriminating against left-handers are invalid because you are born left-handed and it is therefore innate. I am baffled that you refer to “flogging the equal protection clause”. Please actually go read the court rulings in question.

  128. What about those of us who believe judges should not legislate from the bench because judges should not legislate from the bench? Their job is to uphold and execute the law, not make new ones out of whole cloth.

    That said, if a state, any state, has been able to challenge a previous piece of legislation, overturn it, and start afresh, and still operate within the bounds of that state’s constitution and legal framework… well, more power to them.

    Funny how consistent those two viewpoints are… all it requires is people to play by the rules, at all times, no matter whether you have a dog in the race or not.

  129. Linoge:

    “What about those of us who believe judges should not legislate from the bench because judges should not legislate from the bench?”

    As they do it so rarely compared to the number of times people accuse them of, it makes one wonder whether those people actually know what they’re talking about.

    That said I find it amusing that people who get all worked up about assumed bench legislation CANNOT EVER NOT TALK ABOUT IT even when it has absolutely nothing to do with what actually happened in Vermont today, and even when I said I didn’t want it as a topic of discussion in this thread, because it’s not relevant to what happened in Vermont today.

    So, for fuck’s sake: Stop talking about it in this thread.

  130. One of the congresspeople who changed his vote was a Democrat who says he’s still against gay marriage but as a freshman congressperson, he had to go with his fellow Democrats on the second vote because he has no power yet. He made a deal.

    The people who opposed the law claim not only that the voters should have gotten to decide it instead of the legislature — on the belief that the tyranny of the majority over the minority expressly fought in the Constitution is just dandy as long as you’re the majority, and that their own state system is wrong — but that the reason the gay activists won is that they outspent the opponents on campaigning and lawyering. Which is quite funny when you look at the Prop 8 folk who outspent opponents 3 to 1 in California with out of state money and so got the thing passed.

    So we’re dealing with people who believe that laws and people’s civil rights are things bought and sold. Which is why I have no problem with gay couples suing the government for its discrimination of them, and letting courts decide if the discrimination violates the law, which it does. Because while not perfect, the courts are much less prone to manipulations of fear and bribery than voters or legislators.

    (I’m saying this not in objection to legislators making deals, as many of those deals have been to help people. But I do pity the Vermont folks represented by that freshman Congressman. I don’t think he’s going to last long, as his remarks undoubtedly did not please the other Democrats.)

    Conservatives for whom opposing gay marriage is important seem to feel that they are losing and running out of the money that they need to win it. Which is wonderful news.

  131. Yes, Linoge, please take it to the Iowa thread. I’m still over there waiting for somebody to point out where, precisely, in either the California and Iowa cases the court “legislated from the bench” or “created new law” rather than analyzing existing law, as is proper.

    But I’m not waiting underwater.

    Nabil @159: you’re assuming these people care about facts. They don’t care about facts. If every single person in a state voted to allow same-sex marriage, the Focus On Other People’s Families types would simply whine that the people were fooled by the powerful, wealthy homosexual lobby, and so it’s not the real will of the people.

  132. then what is the point other than the author trying to make a social statement?

    As a prospective writer, I’d say: no character is real without a sexuality and a cultural background. They’re just caricatures … and writing characters without them is laziness that writers can only get away with because readers will interpolate their own presumptions about people.

    As a member of society, I say: not giving your characters sexualities and cultural backgrounds, knowing what assumptions everyone will make about them, is also making a social statement.

  133. Good points in the article about dumbledore, as the article states it is at the point she decided he was gay that it mattered. I do not think we know when that decision was made which means it could still lack importance.

    Personally the VT verdict is another step along a path that is both inevitable and necessary. My long time friend is gay, heck I first met him when he was married to a woman in a bad marriage. A marriage that seemed wrong from the start but I could not put my finger on it at the time. I certainly feel for him and his partner’s situation but they both point out that much of the militant behaviour of gays does far more harm than good. They liken much of it to Christian or Islamic fundamentalists. Until a majority of people support it then it is nothing more that a few in control excercising their believes on others. They do not blame the Mormons for Prop 8, rather they view it as a failure of their community to reach out and show that they are nothing to be feared. There are some very good sites where this is openly debated, of course this site is more a choir and not open to discussion.

  134. *shrugs* Your weblog, your rules, Mr. Scalzi, but flying off the handle is not exactly the most… mature… of tactics when, to use a three-year-old’s line, you were the one to start the conversation on judicial legislation.

    Thank you for the explanation, though – I stumbled across this particular post by way of your RSS feed, and felt compelled to comment, especially given the specious nature of your stereotype in the original post.

    And, given that I was responding to the original post, perhaps it is not I who “cannot ever not talk about it”, so to speak?

  135. All I have to say is, anyone who doesn’t blame the CJCLDS (aka the Mormon Church) at least partially for the passage of Prop h8 simply doesn’t know the facts.

  136. Linogue:

    Re: Responding to the original post: No, what you were doing was using a specific comment in the original post to attempt to open up a tangential discussion on a general subject that’s already been discussed to death here in enough other threads that I don’t feel it needs to be discussed yet again in the exact same way. If you don’t understand the difference, that’s not my problem. And if you don’t like it, there’s the door.

    Trying to razz me for “maturity,” on the other hand, gets you this: Neener neener ppfffft.

  137. Scalzi – “Don’t smoke in here”

    Linoge – *lights up*

    Scalzi – “Put that fucking thing out”

    Linoge – “OK, but you’re an being a baby, you baby-ish baby.”

    Dude, Linoge, didn’t your parents teach you *manners*?!

  138. Xopher – I think it’s a complicated subject. Yes, the LDS are partly to blame for the outcome. But so were the no-on-8 forces; outreach to communities in the central valley and inland empire was awful, and much of the gay activist leadership ran off to spend the summer campaigning for Sen. Obama because they were sure that Prop 8 would fail.

    Most of the gay people I know, and most of the straight allies I know, were complacent; we live in an area where this will fail by a 2/3 majority, so there’s nothing to worry about, right?

    *sigh*

    The bottom line for me is: I can be angry at the people on the other side for the way they fought the battle, and at the people who funded it … or I can be angry at myself and my allies for not seeing it coming and taking it for granted that liberal, progressive California would vote the right way.

    I think the latter focusing of my anger is more likely to result in a different outcome next time … and therefore is more productive. :)

  139. All true. None of that means the CJCLDS (at least as currently led) aren’t scumbags, though. I haven’t yet had occasion to tell a Mormon “your tithes fund mass bearing of false witness,” but it’s in the plan for the next time I talk to one.

  140. The bottom line for me is: I can be angry at the people on the other side for the way they fought the battle, and at the people who funded it … or I can be angry at myself and my allies for not seeing it coming and taking it for granted that liberal, progressive California would vote the right way.

    Really? I can manage both. Except I didn’t take it for granted, and worked to try and overturn Prop 8 even though I wasn’t even living in CA any more, so I’m not angry at myself.

  141. Josh @170, or, “Why should I go light up in the designated smoking area? I want to fill THIS room with smoke.”

  142. Many of my queer friends who were unable to really afford to give still gave to No On 8. I mean people living in poverty. All of my queer friends gave *something*. Straight allies too.

  143. JS @ 162: “As they do it so rarely compared to the number of times people accuse them of, it makes one wonder whether those people actually know what they’re talking about.”

    You don’t really “wonder”….do you?

    If you do, let’s see if I can help. The answer is clearly no. No, they do not know what they are talking about.

    Suggesting that a judge does not actually believe in their legal analysis is an extraordinary charge — one that, in the legal community, would absolutely never be made lightly, or without overwhelming evidence. Unfortunately, among ass-hats whose idea of independent thought is regurgitating Fox News talking points, it’s a reflexive response to any decision they don’t like.

    Go ahead and trust your instincts on this one, Scalzi. You’re a smart guy. You are usually right about these sorts of things. This is not an exception. Rest assured.

  144. Are all the bigots getting nice fancy flowery language now? Put lipstick on a bigot, it’s still a bigot.

    Oh noes! The widdle wiberal is going to call us bigots if we don’t mindlessly cheer the abandonment of traditional Western mores! Whatever shall we do?

    Since I’m a libertarian, not a conservative, I don’t get worked up by these things, although I’m somewhat amused by the many commenters who clearly believe in the Vermont law as a measure of social progress. There is an amount of evidence that it is the socionomy that dictates these events, which means that if the more pessimistic economists are correct, the Vermont and DC actions will prove to be among the last actions of the movement towards the socially liberalizing extreme that tends to accompany boom peaks. If this is the case, we will have to conclude that the Prop. 8 vote was the first real hint of the pendulum’s turn.

    This should make for an interesting test of the theory, anyway.

  145. A quick side note, sorry. It is funny how people talk about giving money/time to prop 8 yes or no. Since neither side could actual buy the election outcome then it means the money given is to get the message out that this is being voted on and then present their side.
    My point being, I feel that most people in this country are sheep. They tend to follow the loudest or the prettiest sheppard and not think for themselves and look at facts and figures. This is how we got 8 years of bush and conversely how obama was able to win. It can benefit both sides.

  146. VD@178: Given that “traditional Western mores” have, in the past, included slavery, discrimination on basis of race and/or gender, supremacy of the Catholic Church over secular rulers, burning of heretics and witches, and an ongoing list too long to bring up, I have to admit that yes, I personallydo see the gradual abandonment of those parts of ‘traditional Western mores’ that I find reprehensible as social progress.

    You’re free to disagree and state that a woman’s place is in the kitchen, or them uppity negroes should know their place, or any number of ‘traditional Western mores’ that are thankfully no longer in vogue anymore. But don’t be surprised if people call you as they see it.

  147. VD@178: Oh noes! The widdle wiberal is going to call us bigots if we don’t mindlessly cheer the abandonment of traditional Western mores! Whatever shall we do?

    Ah, the lipstick is off and the pig is going whole hog.

    Since I’m a libertarian,

    There are two groups of people who call themselves libertarians, I’m going to guess you’re in the “moron” group, which is unfortunate for the other group of libertarians. you’re making them look bad.

    There is an amount of evidence that it is the socionomy that dictates these events, which means that if the more pessimistic economists are correct, the Vermont and DC actions will prove to be among the last actions of the movement towards the socially liberalizing extreme that tends to accompany boom peaks.

    And the lipstick is back on. Does this crap actually impress anyone?

  148. Fred –
    My point being, I feel that most people in this country are sheep. They tend to follow the loudest or the prettiest sheppard and not think for themselves and look at facts and figures. This is how we got 8 years of bush and conversely how obama was able to win. It can benefit both sides.

    My feeling is, people who refer to the majority of a country as “sheep” have a good time inflating their ego by knowing that they’re somehow more special than everyone else.

  149. It isn’t your disagreement that makes you a bigot, #181. It is the attitude behind it that some people are better than others, and the non-better ones don’t deserve to be treated equally.

    And don’t trot out the bible. It’s the United States of America, not the United States of Jesus.

  150. Indeed, let’s step back from the personal.

    Which is not to say, Fred, that if people find your statements indicative of bigotry, that this is out of bounds to say. It’s possible to say dumb things without being dumb one’s self; likewise it’s possible to say things that come across as (or are) bigoted without necessarily being bigoted (or at the very least, being unaware of such).

    But yeah: In general, better to address the ideas.

  151. I would think that actual conservatives would be in favor of same-sex marriage. After all, don’t we want people to marry? You know, that whole commitment, building block of society, legal and social responsibility to others thingy. Certainly anyone horrified by random Gay Pride Parade video clips ought to be thinking “These people need to get married and settle down.”

    So, really, the only explanation for conservative opposition to same-sex marriage is bigotry.

    Rens @180, don’t bother.

  152. Greg and Rens. That VD stands for Vox Day. Pseudonym derived from vox Dei, “the voice of God,” which gives you an accurate measure of what he thinks of himself. This is the guy who, when confronted with the problem of even transporting illegal immigrants over the border, pointed out that after all the Germans transported that many people before and during WWII.

    I could say more. But the above are facts; any expression of my opinion of VD might seem like a personal attack.

  153. For Tal @158,

    Actualy in Arizona the anti SSM amendment on the ballot only failed the first time. It passed the second time rather overwhelmingly. (And it failed overwhelmingly the first time)

    The big push to pass it came after the SC of CA threw out California’s law. It was marketed as being necessary to protect the state from “rampant judicial activism”. It never would have passed if it had not been for the actions of the SC of CA.

    I thought it was stupid at the time, and did not expect it to pass, based on past votes. However, do not underestimate the anger of the populace when they percieve the courts (rightly or wrongly) to be meddling in legislative afairs.

    This is why Vermonts legeslative action is really quite important. (key word legeslative)

  154. Mark Horning – I think that legislative authorization of gay marriage takes one of the most prominent arrows out of opponents’ quivers. Not because I think it’s illegitimate for courts to rule the way they have been, but because opponents of gay marriage do.

  155. Exactly, aphrael – and they’re forced to retreat into dumber and dumber arguments about how it really isn’t the will of the people.

  156. ah, so, a libertarian and the mouth of God. Well, isn’t he special. thanks for the head’s up, xopher.

  157. Josh Jasper: as did I … but most of the people I know socially did not, and it’s hard to silence the voice which says that if I’d done more – say, if I’d taken a leave of absence from work and school and gone out campaigining for two months – it might have made a difference.

    The rational part of my mind says, probably not. But the rational voice is rarely the only one.

  158. imaginarylawyer: the next big fight, though, is going to be over DOMA, and the ability of married gay couples to get divorces in states which don’t recognize their marriages.

  159. VD: sure, that’s possible; there’s some reason to believe that the 1930s arrested social liberalization for some time. But the thing is that the parts of the country which have already accepted gay marriage as a social institution – the San Francisco Bay Area, the four states which have legalized it, much of the rest of New England – aren’t going to suddenly decide that gay couples are bad for society.

    Which means that, when the next boom comes, national acceptance of gay marriage is a done deal.

  160. Greg @ 88:

    “The depressing thing of that is that anyone who is espousing homophobia today would be the racist bigots of a few decades ago. sometimes I wonder if we’ve really made any progress, or if we’ll just keep finding new forms of bigotry for the bigots.”

    I think many of today’s homophobes would ALSO have been racist bigots a few decades ago; they’re hardly mutually exclusive.

    I am immensely optimistic about the changing attitudes I see. I’ve noticed significant changes in attitude among older members of my family, from a grandmother whose racial bigotry faded as I grew up to a relative who used to make tasteless gay jokes and now knows a few gays (mostly sons or daughters of old school acquaintances) and sees them as real people.

    I’d like perfect world peace and harmony now, today (heck, yesterday), but change does take time. What’s especially encouraging to me is how much faster change seems to be coming. When my grandmother was born, women couldn’t vote in this country. Heck, during MY lifetime, women couldn’t own a business in Texas without co-ownership by a brother or father. Those forms of discrimination disappeared, slowly. I was heartbroken after the California election (I’m a Californian, and I felt robbed of jubiliantly celebrating Obama’s election, faced with the immense disappointment of losing on Prop 8), and I’m impatient to see the rest of the walls fall. I know people who have been directly and materially hurt by laws that treat them differently, and every day that those evil laws stay in place is painful. But at the same time, I’m practically giddy to see the change coming so fast. It beats the heck out of feeling like it’ll take another century.

  161. On the other hand, as has been pointed out, ten years ago Prop 8 wouldn’t even have been close. It would have been a slaughter for the anti-marriage folks. It won’t even take a generation.

  162. Meanwhile, I just got an email from Garden State Equality informing me that the caconymous National Organization for Marriage has just unveiled a set of commercials for release here in New Jersey, purporting to be of “real people” who explain how their marriages would be hurt by marriage equality.

    I have no doubt that their claims are bogus. Turns out even the people are; HRC has uncovered the audition tapes for the actors in the commercials. According to GSE, in the tapes “each actor rehearses various U.S. states he or she is allegedly from, and various professions that he or she allegedly holds.”

    These people (NOM and their ilk) are dedicated to the widespread and well-funded bearing of false witness. If one of them called hirself a “Christian” I’d laugh in hir face.

  163. I am so happy to see that both the state I was born in has overthrown the gay marriage ban and that the place where I currently reside wants to recognize gay marriage rights.

  164. who explain how their marriages would be hurt by marriage equality.

    The political cartoon showed a woman with her bags packed, standing at the door, looking at her soon-to-be exhusband, saying, “it’s not you, Harold, it’s gay marriage”.

    I would like to seem them actually make their case rather than hiding behind vague undefined boogeymen words. Dennis did the same thing and in 138, I asked him to specify what potential future threat he thought he was protecting the US from by harming real people today.

  165. Xopher: sounds like Harry and Louise, only with a different target this time. (Which is just to say, this particular propaganda technique seems to have become a regular weapon in the conservative arsenal.)

  166. Greg, where are you getting that sense from Dennis? His discussions, so far as I can see, have been whether something or other is constitutional, not whether it is right — saying a law isn’t unconstitutional is not the same as agreeing with or defending the law. It’s noting that an angle other than its constitutionality needs to be used to try to get rid of it. This is not necessarily indicative of having a goal or view counter to your own.

    (That’s my reading of his general point. I do not even pretend to know anything about the law.)

  167. Kristi Wachter@196

    It’s not just that today’s homophobes would probably have been racist bigots a few decades ago. It’s that a few decades ago most people whether racist or not were homophobes. Attitudes have moved a LOT in the last few decades.

    Mythago@197

    Three decades ago the big antigay initiative in California was something called the “Briggs Initiative” (after its sponsor). Basically it would have banned gays and anyone who “advocated homosexuality” (the meaning of “advocated” was not clearly defined) from working in public schools.

    It did NOT pass, I recall it getting a percentage somewhere in the low 40′s (according to the Wikipedia article, just under 42%). I sometimes suspect it might have done a couple of percentage points better if Ronald Reagan hadn’t opposed it.

  168. Actors audition to be “California Doctors” and “Massachusetts Parents.” Note the bad grammar, and the fact that they’re claiming to be a “rainbow coalition.” Jesse Jackson should sue them. Also “every creed” apparently means “a narrow subset of the Evangelical subset of Christians…maybe some Hasidim.” I doubt they have any Wiccans or Buddhists or…oh, never mind. It’s all lies anyway; why point out flaws in it?

    All the auditions are the same; here’s more of them. Most of these actors are terrible. No wonder they’re desperate enough to do this crap.

    The finished product is the youtube url followed by slash “watch” question mark vee equals 4AzLrn5JVIo (spelled out because legit urls autolink on this site, and I don’t want to give it any extra googlejuice). The “California Doctor” is one of the ones from the audition tapes; I don’t recognize anyone else.

  169. Robin: His discussions, so far as I can see, have been whether something or other is constitutional, not whether it is right

    One does not swear allegiance to a process for no reason. At least, one should not expect live human beings to suffer under a process for no reason. And in #135, Dennis acknowledge that my (1) in #132 is true, that denying people the right to gay marriage is in fact inflicting damage on them.

    So, if denying gays their right to marry, then what threat does Dennis think he is avoiding by demanding we follow his version of the process?

    Personally, I think that the constitution creates three branches with checks and balances as a way to limit state power. I don’t think these checks and balances are meant to act as an impediment to individuals getting the rights they are due. If the constitution says gays have the right to marry, and the judiciary says the state must grant that right, then I think insisting that the “process” be followed (A) redefines the process to remove the purpose of the judiciary and (B) turns the point of teh process and checks and balances from acting as a check against state power to acting as inertia for status quo.

    But either way, if Dennis agrees that the status quo inflicts harm on gays, then he ought to have some concrete threat that he is protecting against to insist on using the process to continue harming gays. If he’s demanding process for process’s sake, then I say the process is meant to be a check against state power, not inertia for abusing individual rights and if the choice is return rights immediately or follow the “process” then return rights immediately.

  170. Xopher,

    I’m a california doctor who must choose between my faith and my job.

    This seems pretty easy to counter: What if your doctor’s “faith” prevented him from giving you a cure for cancer because it involves using stem cells?

    I’m a massachussetts parent helplessly watch public schools teach my son that gay marriage is OK.

    This could also be easily countered: These same parents would also complain that they have to “helplessly watch” public schools teach their kids evolution.

  171. More to the point, Greg and Xopher, these sorts of blatant lies should be illegal. I know political speech is protected, but is this political speech? Is it considered an advertisement? Is there anything that can be used to shut it down?

    This ad is just a bunch of disgusting lies. Any church who contributes one penny to this group deserves their tax-exempt status revoked immediately and a full accounting of all back taxes since they were made into a church.

  172. They interviewed someone (Matt Coles? a gay activist, but I was asleep until the last few minutes) on The TakeAway (a radio program) this morning about these ads, then interviewed Maggie Gallagher, the head liar of the National Organization for Marriage. After they were both off the air, one of the hosts remarked that they both “sound so reasonable.” Here’s the comment I just sent them:

    Maggie Gallagher (of the caconymous National Organization for Marriage) is the only sounds “reasonable” if you don’t listen to what she’s actually saying, which is that she has the right to be a homophobic bigot without social consequences. She does not. She’s also saying that her feelings about what the word ‘marriage’ should mean supersede the civil right of equal treatment under the law; they do not.

    I tuned in a little late, so I didn’t hear whether your other interviewee pointed out that the alleged “doctors” and “parents” in the National Organization for Marriage were actually actors hired to portray those roles. This is far from the only lie in their ad, of course; NOM should change its name to the National Organization for Bearing False Witness Against Thy Neighbor.

    Note everything I said is something that could be read on the radio; I did not, for example, call Maggie Gallagher “that lying whore.”

  173. And of course now that it’s too late I see the error in my first sentence. Drat and a half.

  174. And now I need to crow a little, because they read the part about feelings not superseding civil rights at the very end of the show. The last word, as it were!

    My getting up early to hastily write an email is thus justified. Can I get a WHOO-HOO! from the gang?

  175. these sorts of blatant lies should be illegal

    No, they really shouldn’t. You really want the police deciding what’s a lie (and thus illegal) and what’s not? The FBI? Etc.?

  176. Silbey – there are laws against false advertising. Those are lies which are illegal.

  177. Greg@208:
    John, our host, has asked us to drop the subject. But since you brought it up again, let me try to respond, _once_. Then I’ll shut up and say no more on this.

    First off, you seem to have completely ignored the fact that I _support_ gay marriage, and I’m delighted that Vermont has enacted this law. If you’re fighting Prop 8 and you ask me for a contribution, well you know, we all do with what we can. So at a fundamental level, we’re on the same side, brother.

    But you seem to misunderstand that justice and constitutional law are not the same thing at all. In a sense, almost _all_ laws can be seen as taking away somebody’s rights to some respect. To pick a silly example, the laws against battery take away my right to swing my fist where I like if your nose happens to be in the way. So you can’t start with the presumption that nobody ever has any right to take any of your rights away, ever, full stop. You have some rights, and there are other theoretically conceivable “rights” that you don’t have. To the extent that the laws are written or enforced such that you don’t have the whole panoply of “rights” that you could conceivably think of, you might say that you’re “harmed”–but that’s part of the bargain that you need for a civil society. You simply don’t have a general right to not be “harmed”.

    Now, some individual rights are specifically protected in the U.S. Constitution. (And some state constitutions specifically protect additional rights.) And the principle of judicial review means that even if a legislature passes a law that infringes on one of those rights and the government enforces that law, an aggrieved party can ask a judge to overturn the law itself as being repugnant to the Constitution.

    But what the civil and learned debate up above shows is that understanding exactly what rights are protected in the Constitution and what are not is a very inexact science; there is plenty of room for argument; and lots of smart people make a living by making those arguments.

    There are lots of “rights” that one can conceive of as being worthy and noble things–but which are not, for one reason or another, protected by the U.S. Constitution. For example, there’s no right to be treated equally under the law regardless of sex– the absence of such a right in the current constitution is exactly why there was a big debate back in the 1970s about amending the Constitution to expressly create such a right. As it turned out, the amendment didn’t pass. Does the lack of a right to equal treatment under the law regardless of sex “hurt” some people, in the way that you (Greg) are concerned about? Sure it does. But the Constitution says what it says, and that’s that.(*)

    But–and this is my core point–wishful thinking about what rights _ought_ to be in the Constitution does not equal those rights _being_ in the Constitution. Nonetheless, on an admittedly few but high-profile and important occasions, judges (up to and including the United States Supreme Court) have in effect done that anyway, by essentially deciding that a particular right ought to be protected by the Constitution, and then employing less-than-fully-intellectually-honest reasoning to “find” it in the Constitution. My Exhibit A is the _Griswold_ case, which I’ve discussed above. A majority of the U.S. Supreme Court said that there’s a Constitutional right to privacy. Only, there’s really not, and Hugo Black’s dissent explains the flimflam that the majority had to pull in order to say that it was there.

    Maybe there _ought_ to be a Constiutitonal right to privacy, but if you think so, then talk to your Congressman and get a federal law passed. Or better yet, amend the Constitution.

    Back to gay marriage: my reading of the U.S. Constitution is that none of the rights that are currently protected by it cover a right to same-sex marriage. Some may argue that _Loving v. Virginia_ plus _Lawrence v. Texas_ do establish such a right, but I don’t buy it. If I’m right, and the U.S. Constitution doesn’t contain such a right, then a judge can’t make one up. In that case, advocates of same-sex marriage have to either get the legislature to pass a law to recognize it (which is exactly what the good people of Vermont have done), or get the U.S. Constitution amended.
    ———–

    (*) Re-starting the process and adopting the Equal Rights Amendment would, among other things, end the whole dispute over same-sex marriage because it would make it clear that same-sex marriage _is_ protected by the Constitution– in fact, I’m pretty sure that the reason why courts in California, Massachusetts and Hawaii recognized same-sex marriage is because the state constitutions of those states had a mini-ERA in them. If the federal ERA were up to me, I’d vote for it.

  178. there are laws against false advertising

    Yes, there are, though I note that they are civil rather than criminal.

    In any case, that’s irrelevant to the question: you really want the police deciding what *political* speech is a lie?

  179. Silbey: I think that’s a very dangerous road to go down, and I would hesitate to take any steps in that direction.

  180. Dennis: the argument on the other side is that Loving and Zablocki establish the existence of a fundamental right to marry, which is being denied to people on the basis of their sexual orientation.

    So the question becomes: does the US constitution protect people from being discriminated against on the basis of sexual orientation?

    The answer to that really depends on how you view the general question: what classifications beyond race are suspect under the fourteenth amendment, and how do we identify what those classifications are?

    Since basically *nobody* believes that the fourteenth amendment only frowns on racial classifications, there has to be some rule for figuring out what other classifications attract strict scrutiny.

    But this is all a bit of a side issue, as my understanding of the question is such that your comment didn’t answer it. I understood the question to be: “what is the *harm* which will be caused if your process rules aren’t followed?”, and it seems to me you reiterated why you think the process rules are being violated.

  181. But–and this is my core point–wishful thinking about what rights _ought_ to be in the Constitution does not equal those rights _being_ in the Constitution. Nonetheless, on an admittedly few but high-profile and important occasions, judges (up to and including the United States Supreme Court) have in effect done that anyway, by essentially deciding that a particular right ought to be protected by the Constitution, and then employing less-than-fully-intellectually-honest reasoning to “find” it in the Constitution. My Exhibit A is the _Griswold_ case, which I’ve discussed above. A majority of the U.S. Supreme Court said that there’s a Constitutional right to privacy. Only, there’s really not, and Hugo Black’s dissent explains the flimflam that the majority had to pull in order to say that it was there.

    Yes, it was a dark and terrible day the courts ruled that we had a right to privacy. Horrible. Pains me to this day. I’ve considered leaving the country over it. Tragedy, truly.

    I’m so glad we have people like you on teh front lines fighting to make sure the process is followed and insisting that we really don’t have a right to privacy, that the judges overstepped their bounds giving us a right to privacy, and that the only way we can get a right to privacy is if we put it in our constitution in an explicit ammendment.

    Yes. That sounds so much better. No right exists unless it is explicitely spelled out. What a great and noble cause to dedicate your life towards fulfilling.

    Take away every right ever protected by a court ruling that isn’t explicitly in the constitution and demand that the people pass ammendments to put it in the constitution.

    But you seem to misunderstand that justice and constitutional law are not the same thing at all.

    There is justice, then there is constitutional law, then there is some kind of throwback to chinese legalism that you’re trying to forward. And what you don’t seem to understand is that you’re not fighting for either justice or constitutional law. YOu’re fighting for an impractical religious worship of a completely literal interpretation of the words in the constitution. People are getting screwed over, and you’re willing to deny them their rights because they weren’t a slave to your interpretation.

    No thanks.

  182. I think that’s a very dangerous road to go down, and I would hesitate to take any steps in that direction.

    Then we agree.

  183. New York’s governor is going to town on a new bill for gay marriage, now that the state Congress is no longer controlled by the Republicans. They still don’t think they have enough votes to pass it yet, but they are getting started. Soon, hopefully.

    The NOM ad put me in mind of the 1960′s anti-black rhetoric, not to mention having just seen Milk and gotten to watch footage of Anita Briggs in the 1970′s. I had to stop the DVD every ten minutes to explain to my daughter the historical context of why people were so full of hatred “back then” towards gays. To her, it’s bizarre. And of course, Anita Briggs is still there, in a t.v. ad, today, concocted by people who have devoted themselves to hatred and spreading fear.

    This really is the last, great civil rights battle. And while I have hopes that it will be won in a few years in the U.S., it’s going to take much longer in the rest of the world where civil rights is considered a strange notion. The bravery of the gay people leading this fight is amazing.

  184. Or rather, OF COURSE I wouldn’t do anything that so obviously violates the copyright on the audition tapes! Never!

  185. Why Civil Unions granted by individual states aren’t enough

    Stacy Beardsley and Karla Thomas met three and a half years ago at a friend’s birthday party. Two months later, they were dating and now, three and half years after that night, they live together in a house in north Chicago with their two black labs Kobi and Maddi (just nine weeks old).

    They are like any other couple.

    Stacy, a former public school principal, now works to design academic curricula for schools in the city. Karla is a engineering project manager for an international cosmetics company. At the end of the work day they might meet up with their neighbors to walk the dogs or work on the small yard in front of their home.

    Two weeks ago Karla’s entire department was eliminated due to cut costs and now, as a Trinidadian citizen on an H1B visa, she will have to leave the country once her employment terminates. She has only a few months to find a job that is willing to take on the burden and currently heavily publicized stigma of sponsoring a foreign worker on an H1B visa or she will be forced to return to Trinidad

    [Hufington Post]

    I tend not to use as harsh language as Greg London does, but things like this have me understanding him. Anyone claiming to be against full fledged, nationwide marriage rights, but OK with states being ‘allowed’ to grant civil unions if the populace decides it’s a good plan IS A BIGOT. Full stop, end of story.

    If you’re not furious, you’re not paying attention.

  186. Greg: sadly enough, a state conferring marriage upon this couple wouldn’t solve the problem, because the feds would refuse to recognize it.

    As long as the states are going to be treating this in different ways, the feds ought to allow any state-recognized marriage *or* civil union to be treated the same for immigration purposes.

  187. aphrael – Actually, if a state recognizes a marriage, there’s a potential for a conflict between state authorities and federal immigration officials. Imagine a call to the police in Boston where immigration officials try to enter someone’s home and serve a warrant to deport someone who was legally married in that state.

    Imagine a couple getting married in one state, and moving to another where one of the couple tries to get a job but is turned down because they don’t have citizenship due to a non legal marriage, which was legal in one state, but another state invalidates.

    Even more complicated – imagine a person getting same sex married in VT, not getting a divorce, and coming to AL to marry someone of the same sex, and then requesting that AL honor the divorce.

    This is why, when one state has a legal marriage, all states *have* to recognize it. Not because it’s the moral thing to do, but because refusing creates a potential for legal train-wrecks that the constitution mandates be avoided by honoring the original out of state contract. At least that’s the way I read it. IANAL.

  188. The gay movement is staging their own tax day tea party protest in Boston on April 15th, Wednesday. They’re not calling it a tea bagging party because they aren’t idiots, but it’s to protest that even though gay couples are legally married in Massachusetts and other states, they have to file federal tax returns as separate single people, at a higher tax rate, and are denied the 1,100 tax rights granted to married people. The same goes for civil unions and domestic partnerships.

    This is what people moaning about the traditional, sacred and moral institution of marriage, of how marriage is religious and government shouldn’t regulate it are conveniently ignoring — that secular marriage conveys legal and financial rights and benefits that gay people are discrimminated against having access to, no matter that they are tax-paying citizens. And this is why the culture warriors will lose the battle eventually.

  189. NY governor introduces bill to allow gay marriage

    http://news.yahoo.com/s/ap/20090416/ap_on_re_us/gay_marriage_new_york

    It doesn’t sound like it is a slam dunk.

    And the religious bigots are already crawling out of the woodwork.

    Sen. Ruben Diaz of the Bronx, an opponent of same-sex marriage, and an evangelical pastor, planned to meet with religious leaders to discuss how to block the bill.

    “I think it’s a laugh in the face of the new archbishop,” Diaz said Thursday before the start of his meeting. “The Jews just finished their holy week. The Catholics just received the new archbishop. The evangelical Christians just celebrated Good Friday and resurrection. He comes out to do this at this time? It’s a challenge the governor is sending to every religious person in New York and the time for us has come for us to accept the challenge.”

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