A Legal Primer on Same Sex Marriage

March 14, 2005 | 28 comments
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As Kaimi has already pointed out, today the San Francisco County Superior Court declared that Proposition 22, which defines marriage exclusively as a union between a man and a woman, unconstitutional under the California Constitution. My point in this post is not to open up a debate about same sex marriage, but rather to explain the legal issues in this — and other state cases — so that non-lawyers can understand what is going on in these opinions.

Lets start first with marriage. As a legal matter in the United States marriage is defined by state law rather than federal law. Indeed, the law of marriage varies from state to state with regard to issues such as the status of marital property and the permissible degrees of consanguinity (in other words, how close of a relative you can marry). The federal government is a government of enumerated powers. In other words, in theory Congress only legislates on issues related to one of the specific areas set forth in Article I of the constitution. In contrast, state governments have broad powers to regulate for the general welfare of their citizens. This is the “police power.” Marriage is regulated under the police power.

Every state in the union has a written constitution containing a bill of rights. Generally speaking, these state bills of rights contain provisions that more or less mirror the federal bill of rights — freedom of the press, freedom of religion, etc. — but there are some special provisions. For example, the Arkansas constitution guarantees to each citizen an “adequate education,” and the Utah constitution contains a prohibition on any church “dominating the state.” These state bills of rights can grant any rights that they wish so long as they do not conflict with a provision of the federal constitution. However, they apply only to the laws of the state. They have no legal effect on the laws of other states or on federal laws. Hence, while the states have a much larger grant of power than does the federal government, that power is limited by state bills of rights. Finally, the power of state governments are also limited by those rights under the federal constitution that have been deemed as applying to the state. For example, the First Amendment’s prohibition on the establishment of religion applies to state laws. The Seventh Amendment’s guarantee to trial by jury in civil cases does not apply to the states.

Proposition 22 was a state referendum that amended the California law governing marriage. Previously, the law made no reference to gender. Proposition 22 changed it so that it was clear that only opposite sex couples could be married in California. It did not amend the California constitution. Several same sex couples in Calfornia sued, arguing that the law violated their right to “the equal protection of the laws” under the state constitution.

The federal constitution and virtually all state constitutions contain some guarantee to “the equal protection of the laws.” Generally speaking, the words of in the state constitutions are not much more specific than that. The problem is to figure out what such a phrase means in actual practice. By and large, state and federal courts use the same method for analyzing this question, although there is no reason that state courts must follow federal interpretations of equal protection or vice versa. Here is how it works.

All laws create classifications. A law that says that the speed limit is 55 mph, creates at least two classes of citizens: those who drive less than 55mph and those who drive more than 55mph. The mere fact that a law classifies its citizens does not mean that it violates “the equal protection of the laws.” Rather, the courts will merely ask if the classifications created by the law has some “rational basis.” A rational basis need not be a good reason or even a reason that the court finds persuasive. There must simply be a showing that the law bears some relationship to some legitimate goal of the state government. Traditionally, rational basis review — under both the federal and the state constitutions — has been very deferential. Historically virtually all statutes challenged under the “rational basis” test have been upheld.

Now suppose that the law creates a classification on the basis of race or religion. For example, it says that black people must pay higher taxes. This law would almost certainly be unconstitutional under any state or federal “equal protection” clause. The reason is that certain classifications are deemed to be inherently suspect. The classic example is race, but others include ethnicity and religion. If a law draws lines based on race it will only be upheld if it one can show that it serves a vital and compelling government interest. In practice virtually no law can survive this test, and it has been saved as a kind of safety valve for truly extreme situations, such as laws forbidding the press from publishing troop movements during a battle.

Finally, there are certain classifications that burden fundamental rights. For example, imagine a law that imposed a tax on voting. Voter is not a suspect classification, and it is actually used in pretty unobjectionable ways such as in choosing juries. Hence, the tax on voting law would seem to fall under the rational basis test. Taxing is rationally related to the state’s legitimate interest in raising revenue, and the law would seem to be unobjectionable. However, the courts have said that even when a classification is not suspect if it burdens a fundamental right — such as voting — it will only be upheld if it serves a compelling government interest. In other words, classifications that burden fundamental rights are treated like racial or other suspect classifications.

Okay, now we apply this rather cumbersome framework to Proposition 22. First we ask ourselves whether or not the classifications the law creates have some rational basis. The San Francisco Superior Court concluded that they did not. In considered essentially two rationales. The first is that the law had a rational basis because it accommodated the deeply felt beliefs of Californians that marriage should be limited to a man and a woman. The court admitted that sometimes accommodating historical traditions and deeply seated beliefs could be rational basis for a law, but — while not being as a clear as it could be — the court held that mere moral disapproval could not supply a rational basis for the law. Next the court considered the argument that opposite-sex marriage advanced the state’s interest in procreation. Here, rather than holding that there was no legitimate interest in procreation, the court held that there was no meaningful connection between this goal and a law restricting marriage to opposite-sex couples, noting that fertility was not a condition of marriage.

In theory, the court could have stopped its opinion there, but it chose to continue. In next asked whether Proposition 22 rested on a suspect classification. It concluded that it did, in this case gender. Now under federal law, gender is not a suspect classification but occupies a sort of shadowy middle ground mainly defined by what Sandra Day O’Connor eats for breakfast. However, gender is a suspect classification under the California state constitutions — and under many other state constitutions. The court concluded that because the law restricted a persons’ ability to marry solely on the basis of the gender of the proposed spouse it classified on the basis of gender. In so doing, the court rejected the argument that because the law imposed perfectly symmetrical disabilities on men and women — men can’t marry men but women can’t marry women — it was not a suspect classification. The court relied on the rejection of a similar argument that had been made in the context of anti-miscegenation laws that had prohibited inter-racial marriage. Defenders of those laws had claimed that they did not discriminate on the basis of race because they applied equally to blacks and whites. State and federal courts across the country rejected this argument. Having concluded that the law classified on the basis of gender — a suspect classification — the court turned to the question of whether or not it was justified by a compelling state interest. Here the work had already been done. A law that lacks a rational basis, by definition cannot be necessary for some compelling state interest, since compelling state interests by definition are rational.

Finally, the court held that the law burdened a fundamental right, in this case the right to marry. In coming to this conclusion it rejected the claim that the fundamental right to marry included only opposite-sex marriage. Such a position was ruled out, the court reasoned, because it was based solely in the moral disapproval of the citizens. Analogously, in the anti-miscegenation context, the courts had refused to limit the fundamental right to marry to same-race marriages, despite the long tradition of anti-miscegenation laws. Because the classifications in the law burdened a fundamental right, the court went on, it may only be upheld if the state has a compelling interest, which it had already concluded did not exist.

The court’s conclusions in this case rested almost entirely on California law. The case will now be appealed to the California Court of Appeal. This court is required to hear the case. From there, either side can try to appeal to the California Supreme Court. This court, however, can decide to not hear the case if it so chooses. Hence, the legal arguments in California are far from over.

A final note on this thread. We have had any number of same sex marriage marathons on this blog. I strongly encourage you not to turn this thread into another one. In the interests of preventing another SSM flame war free for all, please keep the discussion on the legal issues.

28 Responses to A Legal Primer on Same Sex Marriage

  1. gary on March 14, 2005 at 7:31 pm

    It is interesting to me that the court held that marriage is a fundamental right, and that this law imposes an impermissible burden on that right. Do you think that this particular holding strengthens the hand of those who will want to reopen the polygamy debate since laws prohibiting polygamy also burden the right to marry? Or is the fundamental right to marry limited to marriage to one spouse at a time? Or would a court find it easier to find that the state does have a compelling interest in monogamy which justifies this limit on a fundamental right?

  2. D. Fletcher on March 14, 2005 at 7:33 pm

    Nate, does this current California legal wrangling have any long-term ramifications for the Church? I know the Church was a big supporter of Proposition 22, and I have always wondered why. Regardless of legalization, it seems that the Church could have its own say as to whether a marriage was condonable or not.

  3. Karen on March 14, 2005 at 8:32 pm

    Nate, thanks for the (relatively brief) explanation of some very complicated legal concepts. I think those are important principles to keep in mind while having discussions about the legality (rather than the morality) of same sex marriage.

    Perhaps in a follow up post you could explore the issue of how this issue might eventually wind up in the Supreme Court, as that is a frequently asked question.

  4. Chad too on March 14, 2005 at 9:07 pm

    Nate, can you provide a link to where you read the opinion? I can’t see to find one.

    Did Judge Kramer really rule there is a constitutional right to marriage? As I recall from Goodridge and the Hawaii cases, those rulings rested more on equal access to the privilege of marriage rather than declaring marriage a right.

  5. greenfrog on March 14, 2005 at 10:39 pm

    FWIW, I’ve had a commercial case before Judge Kramer for a couple of years now. I’ve found him to be among the best of the best of the California state court judges.

    I, too, would like to find a copy of his decision.

  6. cooper on March 14, 2005 at 10:56 pm

    Here’s a link to a gay rights groups posting of the decision:

    Kramer

    Click on first link. It’s a pdf file.

  7. David Rodger on March 14, 2005 at 11:27 pm

    My only exposure to Kramer was on Seinfeld. I must say that it did not engender a great deal of confidence.

  8. Eric on March 15, 2005 at 12:06 am

    gary (#1), laws prohibiting polygamy have already been challenged using the same line of reasoning as goes in to the same-sex marriage challenges. That reasoning has been rejected for a number of reasons:

    First, and most cynical, many of these rulings are political. It almost goes without question that the gay/lesbian community has much more political clout than does the polygamist community.

    Second, and a less cynical corrolary to the first, one of the politcal currents underlying the decisions supporting same-sex marriage is the concept that society has become more “enlightened,” and less biased, and the old strictures against same-sex marriage are seen to have been based on outdated thinking (to put it simply). Society simply isn’t as accepting of polygamy as it is of same-sex marriage.

    Third, I believe that the history of the feelings of this country about polygamy still echo even now. Remember the “twin evils” of slavery and polygamy? That will take a long time to die.

    Another reason may be (and I realize this one is a bit of a stretch) the widespread acceptance of divorce, with “serial polygamy” almost taken for granted. You would be surprised at the number of legal clients I have (all with a connection to the military) who have child support obligations to more than two families. All the responsibilities, few of the rights of “old-fashioned” polygamy.

    I believe that one trend to watch towards a greater support, or at least tolerance of polygamy will be in Europe, as it becomes more “Islamicized.” Polygamy is still practiced in many Muslim countries, and as Islam makes itself more of a force in Europe, pressure to accept polygamy may also follow.

  9. Derek on March 15, 2005 at 12:09 am

    Should consanguinity restrict same-sex marriages the way it does with opposite-gender marriages?

    And who are the biologically androgynous allowed to marry?

  10. Larry on March 15, 2005 at 12:53 am

    The question that comes to mind from a non-legal perspective is – when did marriage become a right or a privilege? What would happen if this right were revoked? Would people stop having sex and procreating etc.?
    Does making it a right allow judges to assume the role of moral determiners and not just the arbiters in strictly legal matters – therefore the architects of society as they see it? With them making statements of fact on matters that are beyond their control (sexual attraction and it’s offshoots) are they guilty of exercising intellectual sophistry and practising a form of priestcraft?
    Dumb questions, no doubt, but it’s hard to figure the courts out.

  11. Eric on March 15, 2005 at 7:13 am

    After re-reading my post (#8), it occurs to me that, when discussing some of the differences between applying the logic of opinions favoring SSM and those not supporting polygyny, the reasons I listed fit better into the framework Nate describes of balancing the basis for the law (is there a “compelling interest”?) and whether the law unduly discriminates against a class of persons. The reasons I list go into the balancing that judges do between upholding the statute and whether there is any compelling interest. Applying societal and political considerations into the balancing equation, laws prohibiting SSM come up short. Laws prohibiting polygyny do not. How a judge rules on the issues really comes down on how that balancing works out.

  12. Laura O on March 15, 2005 at 8:30 am

    Nate,

    Thanks so much for this clearly-written and very interesting primer. I’m having trouble understanding the last two sentences of paragraph three, though. Can you (or anyone else who gets it) explain why the federally-determined right of trial by jury doesn’t apply to states, while the First Amendment does?

  13. Nate Oman on March 15, 2005 at 9:21 am

    A couple of responses:

    D. I have no idea what sort of long term significance this decision will have for the Church. I don’t even know what sort of long term significance — if any — it will have in California. I think that there is a better than even chance that it will be overturned on appeal, but this is just tea leaves. I just don’t know.

    On polygamy: I don’t think that Eric is correct that it has been challenged under the same rationale as the recent California case. The California case involved an equal protection challenge. I don’t think that polygamy really presents equal protection problems — where is the suspect classification? Rather, my understanding is that the challenges to polygamy laws have been under either the free exercise clause or right to privacy cases, both of which involve a quite different legal framework.

    Larry: The judge here is not just making things up. He is a judge who has a lawsuit in front of him that he must decide. The parties invoked the California equal protection clause and he has to decide the cases using the framework that has been set up by the courts to interpret the idea of equal protection. Such interpretation is inevitable unless we are content to let constitutional guarantees becomes meaningless verbiage. A phrase like “no citizens shall be deprived of the equal protection of the laws” simply will not decide a case. Something like the doctrinal framework that I discussed in my post is necessary. As it happens, I have have some real problems with the court’s opinion, but they are problems having to do with the arguments that he makes within the legal framework that he is using. Finally, the categories that you set up of “moral determiners” and “strictly legal matters” are much more porous than you are assuming. Equal protection is a “strictly legal matter” but one that inevitably will involve some level of moral judgement. The same is true of a simple auto accident case. Such is the law.

    Laura: It gets a bit complicated. As written, the Bill of Rights places no restrictions on the state governments but limits only actions by the federal government. Indeed, the original constitution placed very few limits on state power, and almost all of those were strucutural, ie states couldn’t pursue their own foreign policies, etc. Immediately after the Civil War there were several amendments to the constitution, including the 14th amendment that provided in part that no state shall deprive a citizen of “due process of law.” In applying this new provision the courts had to figure out what “due process of law” protected. In the middle of the twentieth century there was a big debate on this matter within the Supreme Court. Justice Hugo Black took the position that “due process of law” simply meant that the Bill of Rights in its entirety applied to the state governments. Justice Felix Frankfurter took the position that “due process of law” applied only to those legal rights that were deeply embedded in our history and institutions, which means that it did not cover all of the rights under the Bill of Rights and did cover rights not specified under the Bill of Rights. Ultimately, Frankfurter prevailed. The Court held that certain provisions of the Bill of Rights — freedom of assembly, freedom of speech, freedom of religion, freedom from abitrary search and arrest — were so basic that they were included under “due process of law.” Other rights contained in the Bill of Rights, such as the right to a jury trial in some civil cases where the amount in controversy exceeded 20 dollars were not so basic that they were part of “due process of law.” It is not an entirely satisfactory resolution to the issue, but there it is.

    Karen: As it now stands gay rights groups seem to be very cagey about avoiding a direct challenge to traditional marriage under the federal constitution. I suspect that this is because they — quite correctly in my opinion — think that the state courts will be more favorable. I think that it is pretty unlikely that the federal courts are going to jump into the center of this game and declare that traditional marriage violates the federal constitution. This is just me reading the tea leaves based on Kennedy’s recent dicta on the subject in Lawrence v. Texas. I could imagine things going the other way if the composition of the Court changed dramatically. I think that the issue is more likely to reach the federal courts under the full faith and credit clause. What will happen is that a couple will be married in say Massachusetts and will move to another state and then somehow will sue under that other state’s laws for some right associated with their Massachusetts marriage — divorce, some litigation over someone’s estate, etc. The non-gay marriage state will then apply its choice of law rules so that the case is governed by its laws rather than Massachusetts’s laws. That state will then refuse to extend full faith and credit to the Massachusetts marriage on the ground that gay marriage violates the state’s clearly articulated public policy (this is a long standing exception to full faith and credit). The state will also invoke the Defense of Marriage Act, in which congress said that states were not required to honor the gay marriages of other states. A couple of issues now crop up and it depends on how hard the gay rights activists want to push this in court. I think that they can probably get DOMA declared unconstitutional. However, under the regular full faith and credit clause jurisprudence, I don’t think that this necessarily matters, since by clearly articulating a strong public policy states can opt out of full faith and credit anyway. The question then becomes whether or not the state policy gets challenged under the federal constitution. This becomes a high stakes game for the gay rights activists and my sense is that they don’t want to force the federal courts to decide. There are also lots of procedural ways for the federal courts to duck this issue, especially since it is likely to occur mainly in state court with appeal of the federal issues to the Supreme Court. The justices, of course, can simply duck the issue by refusing the grant cert, or by granting cert on only narrow questions. I suppose that one might get it into a lower federal court by filing a 1983 action, but at this point all of the intricacies of 1983 standing, etc. come into play. My bet is that the federal courts duck the issue for a while. Eventually they are forced to decide the full faith and credit issue. They will say — just my prediction here, nothing else — that states can opt out but that they have to have super clear rules. This will let a few pro-gay marriage federal judges yank around ambivalent states but will give dyed in the wool anti-gay marriage states an out. This is just my guess.

  14. Charles on March 15, 2005 at 10:34 am

    I have two questions or thoughts before looking over the comments.

    1) Was Proposition 22 a referendum to the law regarding marriage or was it an ammendment to California’s constitution to define marriage? If as a referendum it violated present constitution, wouldn’t issuing it as an amendment correct this issue. Should a second run with the voters pass, isn’t that also a clear mandate that it passed twice in two venues. I realize a mandate of the masses does not make right, just a thought.

    2) In paragraph 9 it was demonstrated that marriage is mutually exclusive from fertility and procreation. As this serves the state’s interest to promote procreation (to increase voters, workforce, tax base etc.), and defining marriage as oposite-sex vs. same-sex does not promote or hinder such advancement, I can see how this test leads them to renounce the proposition. The question is this; did they consider that an increase in population does not in itself promote positive procreation? That is, well adjusted, educated, successful individuals. If procreation is left up to the unmarried men and women, children will suffer. It would seem that promoting the proposition would promote families, which while not perfect, are typically better at serving the needs of children, and thus providing society with a generation of citizens better equipped to participate in society rather than leech off of it.

  15. Charles on March 15, 2005 at 10:53 am

    After reviewing some of the comments I have these additional thoughts.

    I find it interesting that marriage is thought of as a fundamental right. Marriage is itself a religious institution that has been adopted by society. As far as I am aware, as marriage applies to society it predominately impacts special burdens and rights. Two of these burdens and rights would be taxes and inherritance or visitations. The latter could be solved through civil contracts that provide the same rights via legal channels to the two parties. The former would require a much more drastic change in my opinion but one that would resolve tax issues for all americans, that is a flat tax rate based on a percent of income in conjunction with a national sales tax, no exemptions, no rebates, no refunds. I know this is a different thread all together, but it would solve the tax concerns for those who do not enjoy the benefits of marriage.

    Considering polygamy; I find little difference between SSM and Polygamy. The arguments for SSM are all exacly the same. How can I control who I love vx. How can I control how many I love? If marriage and family is better for society, isn’t a bigger family that is well adjusted be equally so?

    In fact one of the more compelling legitimate arguments for polygamy would be religion. Nate discussed earlier that religion is a special class that has guarantees. By denying a polygamous marriage you are denying the free excercise of an individual’s religion. Also with the Islamicization of various countries, this will present other religious and cultural examples than what the US is tradditionally familiar with. This is not to support it or not, just to point out that there are far mor similarities and if ther is any reason polygamy has not taken a front it is because of the political positions various groups have and the current PR each organiztion has.

  16. Kori on March 15, 2005 at 11:52 am

    Thanks Nate. That was a great summary.

    I am surprised the California court held that mere moral considerations don’t form a rational basis. I agree that mere morals should not provide a compelling reason, but it seems they should provide a rational reason.

    Have other state courts held that morals only are not a rational basis?

  17. annegb on March 15, 2005 at 11:58 am

    Nate, if I ever decide to shoot anybody (a real possibillity given my volatile personality) will you be my lawyer? I figure you could talk it to death and I could live out my life quite happily while waiting for the verdict.

  18. Nate Oman on March 15, 2005 at 12:57 pm

    Kori: I think that you hit on one the key questions raised by this opinion. My gut reaction is to say that the California court just got this one wrong. The traditional formulation of the police power is that the state can legislate to protect the “health, safety, and morals of its citizens.” Both Goodridge (the Massachusetts gay marriage case) and this California opinion explicitly state that moral disapproval of an action by the majority of the community, standing alone, cannot form a rational basis for a law. If I remember correctly, both cases rely on Texas v. Lawrence (the sodomy case from two terms ago). There is some language in Kennedy’s opinion in that case stating mere moral disapproval is not enough to support the law. The problem is that Kennedy’s opinion in Lawrence is a bit of cypher. What level of scrutiny is he applying? Should I read Lawrence as a fundamental rights case, in which case it is applying strict scrutiny and hence the language about moral disapproval would be correct? Is it a rational basis scrutiny test, in which case rational basis review has been, IMHO, completely revolutionized and the whole post-New Deal constitutional settlement may well be out the window? Is it applying some sort of intermediate scrutiny a la gender? Who knows!?

    The other interesting question raised by the use of Lawrence and Goodridge is to what extent the opinions rest purely on state law. Even though they use the same language and apparently use the same doctrinal categories, there is no reason that “rational basis” scrutiny under a state equal protection clause has to be the same thing as “rational basis” scrutiny under the federal equal protection clause. Hence, mere moral disapproval may be a rational basis under federal equal protection law but not California equal protection law. On the other hand, the California court and the Goodridge court might be taking the position that Lawrence creates a federally mandated floor on rational basis scrutiny, so that the rational basis scrutiny applied under the state constitutions cannot be MORE deferential without violating the federal equal protection clause.

  19. Nate Oman on March 15, 2005 at 1:03 pm

    Charles: The free exercise argument for polygamy is not likely to work. First, you must show that conduct is being targeted because it is religious. Polygamy is illegal regardless of whether it is motivated by religion or not. Furthermore, the mere fact that virtually all polygamists in the United States are religiously motivated doesn’t get you very far. Virtually all Peyote use is religiously motivated as well, but the Court didn’t think that rendered a ban on Peyote a free exercise violation. As for the equal protection claim, one would have to show that the law discriminated on its face. In other words, the law can’t merely have a disparate impact on religion — all of the people prosecuted for polygamy happen to be polygamous for religious reasons — but the law itself must explicitly target religion.

  20. Shawn Bailey on March 15, 2005 at 1:23 pm

    Nate: your discussion of Lawrence (No. 18) reminded me of my thought when first I read (and chuckled over) your quip about intermediate scrutiny and Justice O’Connor’s breakfast. Justice Kennedy’s breakfast too, I thought. Especially Justice Kennedy’s breakfast.

  21. Matt Astle on March 15, 2005 at 3:34 pm

    Has anyone ever written a law review article about what the justices actually DO eat for breakfast? Maybe if we followed O’Connor and Kennedy around every morning it would make for some compelling legal scholarship!

  22. Kaimi on March 15, 2005 at 3:51 pm

    Matt,

    I believe that there is extensive law review literature to the effect that Justice Scalia, after putting puppies in a blender, then eats them for breakfast. So there’s one of your nine.

  23. Chad Too on March 15, 2005 at 8:49 pm

    Kaimi,

    Diet Coke, Keyboard. Screen. You know the drill. ;-)

  24. Larry on March 15, 2005 at 9:30 pm

    Nate,

    Thank you for your response. My point with regard to rights was – when did marriage become a right? I didn’t mean to imply that this particular judge made it so.
    The reason I ask the question is that if somebody doesn’t like tradition (particularly as it relates to behaviour), and the citizenry is not about to change the way things are, then they go flying to the courts, use an equal rights argument, and throw themselves at judges that they know are sympathetic to their case, and bingo, we have a new right.
    This is pandemic now. Today I heard on the news of a 40 year old man who had sex with a mentally challenged 14 year old girl, and was found not guilty of sexual assault, rape, or any other charge. The reason – the sex was consensual. Now, it is no longer a crime to have sex with under-age youth.
    It is amazing to see how judges minds work. These kids are not old enough to be held responsible for any crimes they commit, not old enough to drink, not old enough to have a drivers license, not old enough to vote – and yet they are old enough to have consensual sex.
    In the days of Blackstone, and probably down until the last 40 years, Natural Law, which was considered God’s Law, was the precedent for moral behaviour. Now immoral behaviour has become a right and the people be da—- if they don’t like it because our judges have now become the arbiters of moral behaviour and everyone knows what paragons of virtue they are in society.
    Forgive my anger. You wrote : “The parties invoked the California equal protection clause and he has to decide the cases using the framework that has been set up by the courts to interpret the idea of equal protection.”
    This to me, is like putting the fox in charge of the hen house. Equal protection from what? When someone needs to be protected it is assumed that there is an attack from somewhere. Where was the attack?
    By surrendering to the idea that they were under attack, a right is created. This is almost absurd. At some point a pedophile could make an argument that he/she is under attack, demand equal protection under the law, and be given a right. All they have to do is find a sympathetic judge and the ball starts rolling.

  25. Nate Oman on March 15, 2005 at 10:03 pm

    Larry: Close your eyes. Breathe deeply. Think of a happy place.

    OK. Now that your blood pressure is back to normal, a couple of points. First, be suspicious of press stories of outrageous rulings by judges. On occasion judges do make outrageous rulings, but far more often ignorant journalists up against a deadline simply get things wrong. The judiciary is not causing the end of decency, morality, or Western civilization. Floridation is not a communist plot. Statutory rape laws remain on the books and people get prosecuted under them all the time. (In fact while I was clerking I had to deal with one case that presented the really thorny issue of what constituted attempted statutory rape.)

    Judges do overreach. Some legal arguments are really bad. However, by and large judges, even the nasty liberal ones, are honorable and honest people doing their best to apply a set of laws that is often none too coherent or clear. Cut them some slack before you get out the pitch forks and torches.

  26. Mark N. on March 16, 2005 at 12:45 am

    Larry: Now immoral behaviour has become a right and the people be da—- if they don’t like it…

    The opportunity to commit immoral behavior has always been a right, thanks to the rejection of Satan’s version of the Plan of Salvation in the pre-mortal existence. Or would you prefer that everyone be forced to do good?

  27. Larry on March 16, 2005 at 12:53 am

    Nate,

    I know you are right when you tell me to calm down. From your vantage point and understanding you have an advantage over a plebe like me. Having you, and people like you, around for commentary and analysis gives me hope that better days lay ahead.

    In his Commentaries On The Laws of England, Blackstone had this to say : ” This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
    …For it is an established rule to abide by former precedents, …according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be dearly contrary to the divine law.
    The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times, as not to suppose that they acted wholly without consideration.”

    My point, in reference to 40 years ago, was that behavioural law was, or at least appeared to be, based on divine law. Why did it change? When did equal protection come to mean behaviour.
    It’s this lack of clarity, the recent judgments that have been handed down, and the general trend of the courts (at least in perception – and to some that is reality) to legalize behaviours that previously were taboo – especially the one you cite in Texas, and the one today legalizing sex with a minor. These rulings clearly break with tradition and precedent, and in effect become precedents for future rulings – as shown in the California decision (I’m assuming, based on your comments).
    At what point do we stop being bystanders and actually get mad at what is happening?

  28. Larry on March 16, 2005 at 12:54 am

    Mark,

    You are right, but it was never a right under the law.