"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."
There are two ways of implementing this: What did this mean when they adopted it, or what does it mean today.
No one seriously argues that when it was adopted it was designed to legalize gay marriage, so I'll move on to the next point.
What does it mean today? It means a million things to a million people. But that doesn't mean its entirely unreasonable to think that the "values of the people" expressed in the Constitution are evolving values that change when the values of the people change. So we have to ask, how much do the values of the people need to change before they should be recognized by the Constitution? If only three or four people agree, does that change "the values of the people"? Does 51% dictate the "values of the people?" People who believe in the living Constitution have to wrestle with this idea.
Unsurprisingly, the Framers already thought it through. Article V, in relevant part, reads:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;"
Three fourths of the several States. That's 75%. Much more than 48%, that voted against Prop 8. More broadly, if you believe the Constitution embodies our values, why does it take less to make our values enforced de facto, rather than de jure? Why make two ways to amend the constitution that require wildly different amounts of support?
6 comments:
In my limited discussions with folks who speak legalese, I have found a few who will admit the point that several cases we aggrandize today (Brown v. Board) probably didn't have the best legal stance, but "were the right thing to do."
That aggrandizement has to explain some of today's decision, no?
Dread Scott had a weak legal stance, but was considered the right thing to do too (to avoid war). Roe v. Wade was considered the right thing to do and remains as controversial as it was 30 years ago.
The question remains, who considers it the right thing to do? How many people have to hold that as a value before it's written in stone? Why does the Constitution require 75% and why should we be okay with less than that?
I will agree with you though that aggrandizement had a lot to do with this.
And Brown v. Board is precedent that supports this. It upheld separate but equal, but held that two tangible things could never be equal. Intangible things can be. One and one are exactly equal to two, even if two pairs of apples are never alike.
Just heard another bad argument:
"Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."
So the argument is that civil unions are different because they have less dignity. Making them marriage will add to their dignity. Yet combining something with dignity with something without dignity does not decrease the dignity of either? Mud looks classier on velvet, but velvet looks less classy with mud.
Pale Horse, your "velvet" argument assumes that one is less classy than the other. I think that is instructive, since the anti-Prop 8 side believes that the pro-Prop 8 side believes that civil unions are the "lesser" of the two unions. I think your comment says it all...you do think it is lesser. That is why they are demanding that it be called "marriage" and not just a "civil union", and that it come with the same rights.
I think the part that actually got my blood boiling is the new legal status for gays, which was laid quite clear by the Supremes in prior cases, and Judge Walker just ad hoc added to it, that of rational basis. Now, gays are a protected class, with the same apparent rationale for protection as blacks under the 14th Amendment. I just can't see how that portion will be held up. Maybe that's why Walker issues multiple holdings...one might stick.
Dave,
Interesting, but I disagree. It isn't the name "mud" or the name "velvet" that denies class. It the substance as perceieved by the public. If the public thinks there is a difference in dignity, names won't change that. This is regardless of my personal beliefs, because the dishonor or honor come from the public. One could rationally believe that blending the two would cause a dilution in dignity to one.
Perhaps a better way to say this is, if you called hetero unions "civil unions" and same-sex unions "marriage", would people think that hetero unions were inferior?
It's the substance.
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