The U.S. Supreme CourtToday, the Supreme Court will take up the Defense Of Marriage Act (DOMA), the law signed by Bill Clinton that denied benefits and equal treatment to same-sex couples. This follows yesterday’s interesting, and at times heated, debate over Proposition 8 in the Hollingsworth case. I will be on MSNBC today discussing the case with NPR’s Here and Now at 12 and then Martin Bashir at 4 p.m.
While some of us have been cautioning people for weeks that this Court was more likely to look for a way to avoid a major decision and could avoid a decision entirely through standing, many were disappointed with the tenor of the questions yesterday. Members like Chief Justice John Roberts seemed openly peeved by people pushing him toward a decision on equality for homosexuals. As expected, Associate Justice Antonin Scalia was the most provocative with questions like “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”
However, even Justice Anthony Kennedy, viewed as the key swing voter, expressed uncertainly about whether the trend toward equality would result in a magnificent end or go over “the cliff.” It was clear that the justices viewed this as a “new” question and had reservations about deciding it for the nation. Indeed, they looked like so many elderly drivers in Florida driving slowly on the highway with their turn signal on, looking desperately for an off-ramp.
That off-ramp could be standing since this case has significant problems on whether the proponents of the law have sufficient injury to demand relief before the Court. If dismissed on standing, that would also mean that the Ninth Circuit also lacked standing. That would leave the district court decision and same sex marriage would be restored in California. However, there would be no sweeping new protection secured in the case.
Another off-ramp was hinted at by Kennedy who openly wondering if the case was wrongly accepted. The Court can simply dismiss a case as premature and mistakingly granted. Many leaders on the Court like Earl Warren wanted to speak with a strong or a single voice on major issues. Absent such a consensus, some might prefer to toss the case rather than produce a fractured decision. It is clear that some justices remain undecided on the fundamental question, though most of us would not view this as a “new” question. The right to marry is not a new question. Nor is equality. Indeed, the gay rights movement is hardly new. Yet, this is an incrementalist Court that historically tries to avoid getting in front of the nation on divisive questions.
That brings us to DOMA and today’s argument. After the indecision expressed yesterday, it seems hard to believe that the justices would express certainty on the fundamental right today in the DOMA context. Many had hoped that the Court would simply find the law unconstitutional as a violation of equal protection and extend heightened scrutiny to sexual orientation. When Clinton signed this law, many condemned it as open discrimination. Indeed, it is frustrating for civil libertarians to see Clinton and Senators like Claire McCaskill come out expressing their rather belated conclusion that same-sex couples deserve equal treatment in marriage. When such decision requires more courage, they were no where to be found and, in Clinton’s case, openly worked against gay rights.
With even Kennedy expressing uncertainly yesterday, a ruling recognizing equality seems a bit more difficult today. Yet, a ruling upholding DOMA would be equally sweeping. This case also has a number of off-ramps. Standing in this case for the members of Congress is highly questionable. I represented Democratic and Republican members challenging the Libyan war and we were dismissed on standing grounds. That could be the result here, though it would be a bitter end if both landmark cases end in procedural dismissals.
Another intermediate resolution would be for the Court to strike down DOMA not only equality grounds but federalism grounds — avoiding the creation of a new fundamental protection for gays and lesbians. The Court could hold that Congress was interfering with a state question (the definition of marriage) by denying benefits to all same-sex couples (including those from states recognizing same-sex marriage). In so holding, the Court would not be holding that there is an equal protection for homosexuals but rather that this is a matter left to the states. That would still be a victory for gay rights but not the one most deserved from this case.
Tony,
“Well then I think the “essential nature” of contracts is beside the point, because I care about communicating a point as widely as possible to an audience of unknown educational level.”
Then you don’t care about accuracy then. The law of identity holds. What is it in itself? If you cannot answer that with clarity, then your premise is wrong. There is no simpler way to reduce the relationship than the basic form of a contract is mutual agreement with valid consent in exchange for mutual benefit/an exchange of value. There is no simpler way to describe the exchange of vows in marriage either.
“Two males cannot enter into a contract that protects them from testifying against each other, or providing tax-free inheritance to each other.”
But in some jurisdictions they can enter into a special form of contract (see below) that allows for just such benefits (and the attendant obligations) even if they are prevented from calling it a marriage at this time.
“The reason I continue to argue is not out of stubbornness,”
Suuuuure it isn’t.
“it is that I think it is misleading to call marriage ‘just a contract,’ whether that is technically correct or not, because it suggests to laymen that all the benefits of marriage can be obtained by ‘just signing a contract,’ and that in turn obscures the reason for demanding their relationship be recognized as a marriage.”
And that is tacit endorsement that they own the word “marriage” when that’s preposterous. All of the benefits of marriage can be had under the contract form known as a civil union; an option available only to some homosexual couples but to every heterosexual couple. Why do you want to give those arguing a religious definition of marriage the ability to deny homosexual couples marriage under a religious tradition that accepts them? Marriage and civil unions are the same relationship at law and that relationship is contractual in nature. Giving the bigoted among the religious sole dominion over the word marriage allows for the dilution of civil unions into a second class relationship. Unless the equivalence is recognized, there is room for inequality to exist. That is part of why the LGBTQ community is fighting for their rights: they don’t want a backdoor for future discrimination left open, they want equal rights.
Gene: the essential nature of contracts.
Well then I think the “essential nature” of contracts is beside the point, because I care about communicating a point as widely as possible to an audience of unknown educational level.
For this particular discussion, the vast majority of people believe they can legally enter into any contract, and as I said, that is not true for the benefits of marriage. Two males cannot enter into a contract that protects them from testifying against each other, or providing tax-free inheritance to each other. Thus, existing contract law in the USA is incapable of providing the spousal benefit or inheritance benefit of marriage, and some sort of “contract” is not a substitute for legalizing homosexual marriage.
The reason I continue to argue is not out of stubbornness, it is that I think it is misleading to call marriage “just a contract,” whether that is technically correct or not, because it suggests to laymen that all the benefits of marriage can be obtained by “just signing a contract,” and that in turn obscures the reason for demanding their relationship be recognized as a marriage. It is clear to me at least there are many people that do not understand homosexuals want legal standing for more than just the emotional satisfaction of calling their relationship a “marriage,” they want the benefits of the laws they can only get if their relationship is legally recognized as a “marriage,” and if it is called anything else (like a civil union) they fear the legal treatment of “marriage” and “civil union” will almost certainly diverge.
So a “contract” (in the common understanding of that) won’t cut it, it isn’t a remedy for the problem faced by homosexual life partners.
What Are The Gobshites Saying These Days?
By Charles P. Pierce
4/1/13
http://www.esquire.com/blogs/politics/The_Gobshites_Get_Right_With_God
Excerpt:
Welcome back to our weekly survey of the state of Our National Dialogue which, of course, is what Bach would have come up with, had he written the Minute Rice In G Minor.
Before we begin our tour of the wonderland known as teevee, we should pause for a moment and reflect on this weekend’s Easter benediction from Ross Cardinal Douthat, primate of the Archdiocese Of Stickupyerassistan. He would like you to know that there are good Christian souls out there who do not oppose gay marriage simply because they spend all their days — and many of their nights, and the better parts of entire holy days of obligation — thinking about all the icky things that gay people do with their icky parts. But, first, Humanae Vitae, beeyotches.
“Heterosexuals had already severed marriage from procreation and permanence, and so there was no more reason to deny same-sex couples marriage licenses than to deny them to the infertile and elderly.”
As a cradle Catholic, I warned you before — watch out for converts. They’re the worst. It started with St. Paul and it never got any better. Even when they’re quoting Andrew Sullivan, this is the case. And, not for nothing, but was there ever any reason to deny marriage licenses to the infertile and the elderly? And, if not, what is the point here?
However, His Eminence quickly gets into the, ahem, meat of the problem.
“There are plenty of interesting arguments, often from gay writers, about how the march to gay marriage might be influencing heterosexual norms – from Alex Ross’s recent musings in The New Yorker on the sudden “queer vibe” in straight pop culture to Dan Savage’s famous argument that straights might do well to imitate the “monogamish” norms of some gay male couples. It’s only the claim that this influence might not always be positive that is dismissed as bigotry and unreason. A more honest, less triumphalist case for gay marriage would be willing to concede that, yes, there might be some social costs to redefining marriage. It would simply argue that those costs are too diffuse and hard to quantify to outweigh the immediate benefits of recognizing gay couples’ love and commitment.”
OK, I hereby argue that. I win. Scoreboard! Now, let’s talk about bigotry and unreason, shall we? Because it’s all on your side of the aisle, Your Eminence. And it’s losing the argument almost daily, and if you want to distance your delicate philosophical formulations from the choir of loons who share your basic viewpoint on most things, it’s probably best that you use that high-end piece of journalistic real estate with which you have been favored to talk some sense to them. The rest of us — gay and straight — are pretty much getting on with our lives…
Which is also what went on over on ABC, where This Week With The Clinton Guy Shocked By Blowjobs featured Dolan Of New York, everybody’s favorite prince of the Church. He began by explaining the problem HMC has in reaching the people who believe that he and the rest of the Clan Of The Red Beanie may well have beamed in from Zontar, for all they apparently know about the inhabitants of this world.
“I think the biggest challenge facing him, George, is to reconnect Jesus and his Church. There’s now a growing cleavage between Jesus and his Church. You reported some of the statistics. People will say, “I don’t have any problem with Jesus. I got some problems with the Church.” And probably, I think his greatest pastoral challenge is going to be – to reconnect Jesus and his church.”
We pause here for a moment to allow Garry Wills time to throw something through his TV screen. Jesus didn’t have a church. He didn’t have a pope. He didn’t have priests. He didn’t have cardinal-archbishops who look cute in Yankee caps and make sure they’re on Teh Sunday Showz to catapult propaganda on Easter Sunday. And, in any case, 50 years ago, the Second Vatican Council taught us that the “Church” is the entire people of god. What Dolan means is that people have stopped listening to the likes of him, and that they’re rejecting hierarchy and bureaucracy as inimical to their faith. And they’ve done it for pretty good reasons, I’d say. If he wants to reattach Jesus to that same hierarchy and bureaucracy, he should go ahead and try, but I think he’s got a tough road ahead of him.
Anyway, he also had some advice for gay people that was even worse than that of Cardinal Douthat. Be friends. But no sexy sexytime, you rascals.
“Well, the first thing I’d say to them is, “I love you, too. And God loves you. And you are made in God’s image and likeness. And – and we – we want your happiness. But – and you’re entitled to friendship.” But we also know that God has told us that the way to happiness, that – especially when it comes to sexual love – that is intended only for a man and woman in marriage, where children can come about naturally.”
God, of course, has told us no such thing. Generations of idiot, sex-maddened celibates have. Judging by the Gospels, Jesus isn’t going to know what in hell — you should pardon the expression — Dolan’s talking about.
And we conclude our Easter services over on Face The Nation, where former James Oglethorpe transportation correspondent Bob Schieffer also entertained Dolan of New York, but he also put together a decent panel to discuss American spirituality with a minister, a rabbi, and an imam. (And no, they did not walk into a bar, ya sacrilegious bastids.) This only went briefly a’cropper when the minister, one Harry Jackson, seemed to give Christians pride of place in American history.
“I would like to say this, in deference to the Christian foundation of this nation, it is that foundation that allows us freedom. I don’t see this diversity in other places. And so to the credit of our Christian foundation of this nation, this freedom we’re experiencing is because they said we believe this to be a Christian nation. We feel like we’ve been persecuted in the places we came from, and we are going to intentionally let this nation be founded in a way that if you come here and you’re Islamic, and you come here and you’re Jewish, we’re not going to persecute you. We’re going to celebrate these roots. Although, we don’t worship as Jewish people, we’re going let this country be guided in a place where there’s going to be liberty and freedom of worship. I feel we would be remiss we act like some other set of countries has operated in this way.”
For an opposing view, let’s go to Mary Dyer, coming to us from Boston Common. She can only be with us for a brief moment…
**********
Martyrdom of Mary Dyer
(d. June 1, 1660)
http://www2.gol.com/users/quakers/martyrdom_of_mary_dyer.htm
Excerpt:
Mary Dyer was a follower of preacher Anne Hutchinson, who taught that the Holy Spirit dwelt in a justified person. This teaching was considered to be “Antinomian”, or opposed to law, heresy by the Puritan religion. When Hutchinson was excommunicated by the Boston Puritan Church, Dyer sided with her against the pastor. Subsequently, Mary Dyer and her husband (William Dyer) were excommunicated and banished, eventually settling in Newport, Rhode Island, a place of greater religious tolerance.
After a trip back to England in 1652, Mary Dyer became a follower of the founder of the Society of Friends (Quakers), George Fox, whose teachings were similar to Anne Hutchinson. When Mary Dyer returned to Boston in 1657, she was imprisoned due to her Quaker beliefs. She was released when her husband promised that she would keep silent until she left the colony.
In 1658, religious intolerance in Boston reached a a new height, when a law was passed banishing Quakers under “pain of death.” When Mary Dyer learned that two of her friends were jailed in Boston, she went to visit them in 1659, and was herself thrown in jail. In September of that year Mary Dyer and her two friends were released, but they were promised that they would be executed if they returned. Less than a month later, Mary Dyer, in the company of other Friends, was back in Boston resolved to “look the bloody laws in the face”.
Imprisoned again, Mary Dyer saw her two Friends hanged, and while herself bound and with the rope around her neck, she received a reprieve at the last moment. Against her wishes, Mary Dyer returned to Rhode Island, but once again returned to Boston knowing the inevitability of her fate, but determined to give up her life in order to gain the “repeal of that wicked law”.
On June 1, 1660, she was hung, refusing to repent, holding fast to her beliefs. Mary Dyer was happy to be martyred for her beliefs, as she realized that her sacrifice would result in a change of attitudes toward greater tolerance of religious faith.
Tony,
“Gene: At the basest form, it’s just a contract.”
Yep.
“I don’t think so.”
And you’re free to be as wrong as you like.
“As I said, since you cannot contract to avoid inheritance tax (the basis of the supreme court case) marriage provides a privilege that “just” a contract cannot. Thus it is not “just” a contract.”
Thus indicating that it is a special form of contract, not that it isn’t a contract. Lemon Laws don’t make a contract to purchase a vehicle not a contract simply because they bestow benefits and obligations by law that other forms of contracts do not.
“That isn’t me opining on law, it is me opining on basic logic and the definition of the word ‘just’ in this context.”
No, it’s you jumping the shark on understanding the essential nature of contracts. That basic legal form still wins out: the basic form is mutual agreement with valid consent in exchange for mutual benefit/an exchange of value. Everything else is “just gravy”.
Bron: Tony C only thinks in terms of government granting rights,
No, if anything, TonyC only thinks in terms of maximizing freedom by minimizing total coercion, which can be perpetrated by many entities, including governments, companies, banks, criminals and other individuals.
Gene: The consent is different because it is consent to a prime facie illegality
Only because we MADE it illegal! To my understanding dueling was not against the law when this country was founded, and winning duelists were not prosecuted for murder.
Contracting to fight to the death BEFORE laws were passed to prohibit dueling was not a prima facie illegality.
You seem to misunderstand this argument. My argument was that not everything one can consent to SHOULD be legal, as fedup implies in his post. I already believe dueling should be illegal, regardless of consent, because a person can be pressured by culture into “consent” he doesn’t want to give, the same way I believe making sexual favors part of an employment contract should be illegal, regardless of consent, because a person can be pressured by financial distress into “consent” they do not want to give.
Your arguments put us on the same side, not different sides. My argument with fedup, which you are welcome to join, was that “consenting adults” is too broad, there are other factors to be considered.
fedup:
Tony C only thinks in terms of government granting rights, it is quite cute.
personally I am all for women licking whatever they want to and it isnt the governments business to say it is ok or isnt ok. While murder is against natural law, licking is not. Although I suppose man has a natural right to not be licked as well.
Gene: At the basest form, it’s just a contract.
I don’t think so. As I said, since you cannot contract to avoid inheritance tax (the basis of the supreme court case) marriage provides a privilege that “just” a contract cannot. Thus it is not “just” a contract. That isn’t me opining on law, it is me opining on basic logic and the definition of the word “just” in this context.
Tony,
You’re driving on the edge of the road, man!
Your first point to fedup is semantic. Murder is a defined crime so it is by definition an illegal act. Without laws prohibiting it, it is simply killing.
Your second point is technically correct. Under the state of nature, nothing is illegal because there are no laws.
Your third point? I’m not even going to address “No, it’s not.” without further proof to back that contention.
Your fourth point is right out off.
“How is that consent different than the consent to fight to the death in a duel, over a personal insult?”
Because contracting to fight to the death is contracting for an otherwise illegal purpose which voids the contract ab initio (“from the beginning”). The consent is different because it is consent to a prime facie illegality that results in specific harm and as a matter of the laws of contracts prime facie invalid.
fedup: And doesn’t your admission that YOU, “personally” express an opinion about what I should be allowed to do in the privacy of my own home with another mutually consenting adult…isn’t that very statement by you an expression of discrimination?
It is only “discrimination” in the sense that I understand extreme circumstances and emotions can compel somebody to consent to something, out of financial or existential desperation, that amounts to coercion by another person.
If one is having a heart attack and the only chance of being saved is to sign a form that will bankrupt you, you will “consent” to the signing. Your spouse may do the same. If your child is going to die of a disease without a treatment you cannot afford, and the only way you can raise the money is to sell one of your lungs, you might “consent” to selling one of your lungs to save your child. If a person is facing bankruptcy and the loss of their home if they do not find a job immediately, and one of the requirements of the job is to provide sexual services to the owner of the firm, they may “consent” to such sexual services in order to avoid financial catastrophe.
I do not discriminate against homosexuals or homosexual marriage, I am all for that in the name of equality. What I discriminate against is the coercion of the weak (financially, physically, politically, intellectually, militarily, economically) by the strong. I think that is the primary responsibility of society to provide such protection and level the playing field. Currently, homosexuals ARE the weak, politically speaking, and I think their treatment is unfair and should be equal to heterosexuals in every aspect of the law, including marriage and adoption.
fedup: “murder”, by definition, is an illegal act.
No it isn’t, it has to be made illegal by passing a law. The fact that such laws are passed is what makes murder illegal. A duel often ended in murder (an intentional killing with mutual consent that was not in self-defense), those had to be made illegal to be illegal.
fedup says: A female licking–or desiring to lick, the nipples of another consenting female adult is not an illegal act.
It can be MADE illegal by passing a law! What is illegal is determined by legislatures or committees (like the Constitutional Convention committee), there is nothing inherently illegal. Inherently wrong, yes, inherently illegal, no. Even slavery and rape were legal in this country a few hundred years ago.
fedup says: Your comparison fails.
No it does not.
fedup says: And, the employment scenario lacks the consent that we are agreeing exists in commitment between two people of the same gender. So, that comparison fails, too.
How is that consent different than the consent to fight to the death in a duel, over a personal insult? It isn’t. A person may not mind in the least providing sexual services in return for a paying job; the proof of that is that at least some porn actors and prostitutes have chosen their profession.
As I said, you paint with too broad a brush, not ALL acts that are the result of adult informed consent should be legal.
At the basest form, it’s just a contract. The fact that the government provides for fairly uniform benefits and obligations that accrue by entering that specific kind of contract does not mean the government is a party to said contract. It’s a special form of contract, certainly, but in the end it is still a promise between two parties made with valid consent for mutual benefit (an exchange of value). If the parties enter said contract without full knowledge of those 1100 laws? That is no different than entering in to a contract without reading it fully or understanding it fully. Like other contracts, there is the possibility of being materially mislead about some quality of the contract. The reading/understanding onus falls on the contracting parties, but the law provides a remedy for material misrepresentation in the marriage contract in the form of annulment which is not divorce. It’s the “it never happened” button. Divorce is more like remediation for breach. Annulment is like vitiating the contract as the courts would in the case of a contract that was based on material misrepresentation or voidable for other reasons such as contracting for an illegal purpose.
As this answer will also tell you, Tony, consent is not the only legal requirement for a valid contract. It’s a key element, but there are other conditions that apply to contracting in general. It’s not as simple as it seems on the surface although the basic form is mutual agreement with valid consent in exchange for mutual benefit/an exchange of value.
And doesn’t your admission that YOU, “personally” express an opinion about what I should be allowed to do in the privacy of my own home with another mutually consenting adult…isn’t that very statement by you an expression of discrimination?
Your statement supports my very real concern about the idea that indicating “approval” or disapproval here is an unconstitutional invasion of privacy and unconstitutional disparate treatment of similar classes of citizens.
“murder”, by definition, is an illegal act.
A female licking–or desiring to lick, the nipples of another consenting female adult is not an illegal act. Your comparison fails.
And, the employment scenario lacks the consent that we are agreeing exists in commitment between two people of the same gender. So, that comparison fails, too.
fedup: they are the government intruding (whether its in the legislation or in the court analysis) into the private lives of consenting adults,
That is too broad a brush to paint with. Do you think an adult should be allowed to consent to being murdered in return for some amount of compensation? Do you think the rich should be allowed to hunt the (consenting) poor and kill them, for sufficient fee?
Some people would agree to that, to obtain the money they believe they need to save a child, spouse or sibling they love. I personally do not think everything two adults can consent to should be legal.
Even sexually speaking, do you think an employer should be allowed to make sexual services on demand from an employee a prerequisite for hiring? The employee, up front, has the choice of consenting to such a condition or not, by accepting the job and signing the contract, or refusing it. I do not think that should be legal, however.
And, that is what makes these two cases so disappointing, because they are the government intruding (whether its in the legislation or in the court analysis) into the private lives of consenting adults, and doing so under the umbrella of religiosity, albeit a sadly “disguised” religiosity.
Guys, there seems to be a little leak in your comments on what “marriage” is.
Technically, “commitment” is a promise from one person to another, and “marriage” is the GOVERNMENT’S promise to two persons who have made mutual commitments to each other. The mutual commitment can be made between two persons WITHOUT the government’s promise to impose certain rights and responsibilities on the two. Thus, marriage, as we are discussing it here, is “mutual commitment plus”, in that it introduces a third party into the “promising”.
Gene: Yeah, that was a bad phrase, but I do not think “contract” covers it either. Unlike other free form contracts (which I engage in frequently), marriage is a “standardized” contract, to the point that saying “I Do” obligates one to all sorts of clauses, standards, and (as we keep hearing recently) over 1100 legal obligations, of which the typical marriage partners are unaware and have never read or explicitly agreed upon.
Although some things like real estate leases are also standardized, they are explicit in the sense that I get a ten page thing I have to sign that represents the totality of the agreement. I got no such thing for my marriage, the agreement is implicit in the oath. Our marriage license was not a contract, it is just permission to “marry.”
So, you may have better words, but I think a different moniker applies than just “contract,” because marriage is defined in the USA by the cloud of laws that surround it; and what homosexuals want is both the obligations and privileges of that cloud, which they cannot really access by engaging in a written contract. For a few examples, two people cannot sign a written contract that exempts them from taxation on inheritance. Two people cannot sign a written contract that gives them spousal privilege to refuse testifying against each other.
So I think “Marriage” is more than just a “contract,” because it conveys privileges that I do not think can be accomplished by a contract. (But for the benefit of those that do not know, I am not a lawyer.)
Father, Jesus, Thank you for your comments and for the bit of revelation regarding the Apostle John. After 30 years you have revealed to (this one of) the faithful that at least one bit of the Abby Road album cover mythos is true: John is “The Preacher”. Those among the faithful that considered him a Saint before will be delighted, ecstatic, by his prominence as an Apostle- who could have known? Except of course you. You all, …of course.
And I just love what you did with invertebrates, cephalopods are just the neatest. Thanks.