Quote of the Morning

“There is something like an emerging consensus. Quite literally, the opposition to gay marriage is dying. It’s old people.” George Will on This Week with George Stephanopoulos

But you know what? It’s not just marriage equality. It’s nearly every issue: immigration, climate, tax cuts, reproductive rights… A significant chunk of the Republican platform is disintegrating.

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  • GrafZeppelin127

    My latest DK Diary, on marriage equality and that sick, twisted freak I debated last week.

    One of the commenters there suggested the only way the Court could possibly find a constitutional justification for marriage exclusivity (which is what I now call it; the proper framing of this debate is equality vs. exclusivity).

    The Loving decision held that “marriage” is a fundamental constitutional right, a protected “liberty interest” under the 14th Amendment that requires strict scrutiny (compelling governmental interest, narrowly-tailored law) to justify any restriction. Specifically, the Court describes marriage thusly:

    The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

    Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes … is surely to deprive all the State’s citizens of liberty without due process of law. … Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    Id. at 12 (citations omitted). What the Court does not do is define the word “marriage” as it is used in the highlighted sentence. Neither, of course, does the Constitution define it. The only way the Court can avoid strict scrutiny on the Due Process question and heightened/intermediate scrutiny on the Equal Protection question (gender classifications get heightened/intermediate scrutiny, not strict scrutiny), is if “marriage” means a union between a man and a woman and can’t mean anything else. Therefore, the “right” or “liberty interest” that same-sex partners are seeking is not “marriage” but something else, something that is not a fundamental right.

    What same-sex couples seek is the legal status of “married” and “spouse.” If the court finds that a same-sex marriage is not a “marriage” for the purposes of substantive due process under Loving, then the court could find that the legal status of “married” and “spouse” is not a fundamental right, and that none of the attendant benefits, privileges and immunities like intestate inheritance, hospital visitation, joint property ownership, &c., are not fundamental rights either, and thus subject exclusivity to rational-basis review. The states could then invoke the “precautionary principle,” or “uncertainty principle,” meaning we don’t really know what the widespread, long-term societal impact of same-sex marriage will be so it’s best to be cautious about it now and let the political process play out.

    Yes, it’s a stretch and it would never survive heightened scrutiny, let alone strict scrutiny. The Court would have to do some serious mental, intellectual and legal gymnastics to distinguish a “marriage” from a “gay marriage” for constitutional purposes. (In addition to narrowly defining the substantive right, the Court would also have to determine that exclusivity does not constitute a gender classification, in order to avoid heightened scrutiny on the Equal Protection question.) Then again, the five conservative justices managed to find a distinction between “activity” and “inactivity” that exists nowhere in the law, the Constitution, or the meaning of the word “regulate.”

    • muselet

      You better hope no Supreme Court clerks troll Daily Kos. That argument may find its way into Scalia’s minority (fingers crossed!) opinion.

      –alopecia

      • GrafZeppelin127

        Scalia is a bit of a dick when it comes to unenumerated rights; he has a tendency to define substantive rights very, very narrowly.

        Believe me, I’m not trying to help the opposition here. It’s important, though, to have an awareness of the legal framework and what is likely to be decided. You have to have a reasonable idea of what your opponent is going to argue, come up with a reasonable argument for the other side, in order to craft an effective counterargument.

        That’s one reason I think so many GOP fans are so bad at making arguments, because their idea of what their opponents are arguing is usually so fleebing ridiculous. If you really think that the person you’re arguing with is out to “destroy marriage,” or force children to become gay, you will lose the argument every time.

        • muselet

          Only a bit of a dick? What universe’s Antonin Scalia are you referring to?

          More seriously, I get what you’re doing and I appreciate the legal insight. I also think you’re overthinking it with regards to Scalia.

          In Romer v. Evans (Colorado’s Amendment 2 decision, for those playing along at home), Scalia ignored the legal niceties and pretty much declared that if the public thought gays are icky, then the public could single gays out for disfavorable treatment. I wouldn’t expect Scalia to dig much deeper this time.

          –alopecia

    • bphoon

      I emailed your DKDiary post to myself so as to keep it handy. Thanks.

      I’ve posited a question here before and I think it relevant, once again, to this discussion. In my view, most opposition to gay marriage is founded in a fundamental belief that homosexuality is a choice, that any gay person could simply “choose” to stop living a “gay lifestyle” and go straight. To which I reply, “So, if sexual orientation is a choice, when did you make the conscious decision to be heterosexual?” I usually get crickets.

      Also, “If God made all His children in His image, why are so many of them gay?”

      • GrafZeppelin127

        My response to the “gay=choice” argument would be simply this: So what if being gay is a choice? Who you want to marry is also a choice. Why should the state be able to say to you, “You may choose X, but you may not choose Y.” ?

        Assuming arguendo that being gay is a choice, how does that justify exclusivity? If I’m a man, I can choose to marry a woman, and I can choose any woman I want*, why can’t I choose to marry a man? Why shouldn’t I have that option?

        [* provided, of course, that she can and does consent, that she’s not already married to someone else, and she’s not a close blood relative.]

        Liberty means that personal decisions and choices, like who to marry, who to have sex with, or who to be attracted to, are up to the individual, not the state, unless the state has a good reason to take away or limit that choice. So, what does the “fact” that being gay is a choice have to do with exclusivity?

        • bphoon

          Oh, I agree with you on that. I just like to twist the argument back around to them and see what kind of answer they try to come up with. Pretty amusing most of the time.

  • trgahan

    Socially, yes, I agree the far right is literally dying. Economically, however, I know too many 20-30 year olds who believe they are not millionaires RIGHT NOW because of taxes, regulation, and wasteful, overreaching government (but NEVER cut defense spending you commie!!!). Social Security, Medicare, etc. are all seen as THEIR money being wasted on those too lazy and/or dumb to just work hard them.

    Greed knows no age.

  • KABoink_after_wingnut_hacker

    The right wing is home to misogynistic religious fundamentalists, proud anti-intellectuals, xenophobes, bigots, fanatical Ayn Randians and willfully ignorant Teabaggers with no concept of current events or history.
    They were on the wrong side of history when they fought to maintain slavery and it’s no surprise to see their platform rotting today.

  • bphoon

    It’s rotten from within. As evidenced in the last election, a majority of the voting public has had enough of right wing extremist drama and recognizes the stakes are just too high to continue indulging in ideological, dogmatic posturing.

    Most people just want our elected officials to, for once, take the common good seriously and find a way to get something constructive done for the American people. Pure political one-upmanship is a luxury we just can’t afford these days.