A Loving critique of Elder Oaks

September 26, 2010 | 82 comments
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Elder Dallin H. Oaks spoke recently at Utah’s Constitution Day celebration. His talk, titled “Fundamentals of Our Constitutions,” discussed the role of the constitution, as well as a variety of other topics relating to law, religion, and the public sphere. The talk is well-articulated, as Elder Oaks’ talks tend to be, and sets out some specific ideas about politics which bear further discussion.

For the moment, I wanted to focus on one particular portion of the talk. Elder Oaks writes that:

Another great fundamental of the United States Constitution is its federal system, which divides government powers between the nation and the various states. This principle of federalism is at the heart of our Constitution. Unlike the next two fundamentals I will discuss, which were adaptations of earlier developments in English law, this division of sovereignty between two government levels was unprecedented in theory or practice. In a day when it is fashionable to assume that the national government has the power and means to right every perceived injustice, we should remember that the United States Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the United States Constitution.

In my lifetime I have seen much neglect of this fundamental constitutional principle. For example, the power to make laws on personal relationships is one of those powers not granted to the federal government and therefore reserved to the states. Thus, the ordinary laws governing marriage and family rights and duties are state laws, subject to the power of national law to govern the extent to which the law of one state is binding on others. The dominance of state law in these personal matters would have been changed by the Equal Rights Amendment (E.R.A.) proposed about 30 years ago. The dominance of state law will also be changed if, after full review, federal courts decree that a state law on marriage is invalid under the United States Constitution. Whatever the merits of current controversies over the laws of marriage and child adoption and the like, let us not forget that if the decisions of federal courts can override the actions of state lawmakers on this subject, we have suffered a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government.

That is, Elder Oaks argues that federal courts should not hold that citizens have a right to marriage under the U.S. constitution. Rather, federal courts should decline to rule in this area, because marriage laws are state laws, and bringing them under the scope of federal courts is a federal seizure of a power which should rightfully be preserved for the states.

One suspects that this paragraph is aimed at Perry v. Schwarzenegger, where a federal court recently ruled in favor of same-sex couples. However, as some commenters have noted, Elder Oaks’ statement is sufficiently broad that it would apply to Loving v. Virginia, the 1967 case which invalidated laws prohibiting interracial marriage. That is, if law were to adopt Elder Oaks suggestion and proscribe federal interference with state definitions of marriage, then Loving would not exist. That would be a very bad outcome.

I hope that this paragraph and its application were simply an inadvertent oversight, and that Elder Oaks will clarify his remarks. Is he really suggesting that Loving was wrongly decided? As a civil rights advocate, I cannot support the idea that Loving v. Virginia was inappropriate. (And I think that a critique of Loving from a church leader is especially problematic, given the backdrop of deeply problematic prior statements against interracial marriage by church leaders, and ought to be made very cautiously if at all.)

Loving v. Virginia was a key step forward in the advance of civil rights. The racist web of so-called anti-miscegenation laws which Loving overturned — all of them approved at the state level — was an abomination. I know that opinions inevitably vary on issues of law and politics, but I would hope that in 2010, people can generally agree that Loving v. Virginia ought to be praised, not criticized.

82 Responses to A Loving critique of Elder Oaks

  1. Ardis E. Parshall on September 26, 2010 at 2:20 am

    I don’t believe for a moment that YOU believe for a moment that Elder Oaks is in favor of restoring state anti-miscegenation laws. If you asked him about Loving, he could consistently say that while the outcome was right, the method of reaching the outcome was constitutionally flawed.

    I’m not feelin’ the lovin’ towards Elder Oaks when your critique attributes motives to him that you don’t really believe he holds, and when your escape clauses to “rescue” him from your implied motives are “inadvertence” and “oversight” and “in need of clarification.”

    But then, I’m not stumping for same-sex marriage.

  2. Kaimi Wenger on September 26, 2010 at 3:14 am

    Hi Ardis,

    I really don’t know what Elder Oaks thinks about Loving. I sincerely hope that he doesn’t think that Loving was a bad decision. I’m not quite sure how else to read his analysis, though.

    If it’s true as you suggest that Elder Oaks believes that the outcome in Loving was basically right, then I’d like to hear the reasoning there. I’m not sure how one gets from “the dominance of state law will also be changed if, after full review, federal courts decree that a state law on marriage is invalid under the United States Constitution” to the idea that Loving had any sort of correct outcome.

    Of course, Elder Oaks might argue that state courts ought to have invalidated anti-miscegenation laws, one state at a time; or that state legislators should have been more progressive in their views. But both of these arguments are Pollyannish, and do not really match the reality of the courts or of the legislatures in the South in 1967.
    In fact, the Virginia supreme court had just upheld the statute.

    The history is very clear. Unless the U.S. Supreme Court had done exactly what it did, anti-miscegenation laws would have remained on the books for years or decades longer. Mildred and Richard Loving would have continued to be guilty of a felony (!), punishable by a year or more in prison.

    Perhaps Elder Oaks is of the view that interracial couples should have waited for states to become sufficiently progressive. That would have meant decades of waiting. Remember, it was not until 1998 that South Carolina officially rescinded its (unenforcable) ban on interracial marriage!

  3. Kaimi Wenger on September 26, 2010 at 3:21 am

    Also, it’s hard to make the move Elder Oaks makes (federal courts should avoid constitutional review of areas traditionally granted to the states) without casting doubt on Brown v Board of Education.

    Elder Oaks adopts a strongly states-rights position, writing that:

    “In a day when it is fashionable to assume that the national government has the power and means to right every perceived injustice, we should remember that the United States Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides: ‘The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.’

    This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the United States Constitution.”

    The constitution does not expressly grant the federal government power over education. Therefore, Brown v. Board would be suspect.

    Of course, one can say that Brown was not really about education, but about discrimination and equal protection. But the same argument can apply to marriage — both Loving and Perry are also based on equal protection claims.

    If Elder Oaks is advocating that federal courts generally refrain from judicial review in areas traditionally controlled by the states, I don’t think that Brown survives.

  4. Stan Beale on September 26, 2010 at 4:14 am

    The fundamentalweakness of Elder Oaks argument lies in his failure to take account of the 14th Amendment. Along with the Thirteenth and Fifteenth, the right of equal treatment under the law was guaranteed to all citizens. Any state law or local ordinance that denies that right can come under the purview of Federal Courts. Thus the Loving case and the Brown decision had a strong basis for the courts to act. The question is, does Proposition 8 fall under the same situation. That we shall see

  5. bdelloid rotifer on September 26, 2010 at 5:12 am

    Oaks’ reading of constitution would also take out the Civil rights act of 1964 with its provisions preventing workplace discrimination on the basis of religion (the states got to make the laws until them), the Americans with Disabilities act, the Equal Pay act of 1963, the Pregnancy discrimination act of 1978, and the list goes on. If the rule is states’ “tradition” trumps federal oversight, then when does something age into tradition? What is the cut-off date?

  6. RogerDodger on September 26, 2010 at 5:43 am

    Wasn’t “States Rights” the reason Van Buren could not help Joseph Smith when he sought redress of wrongs against the Saints in Missouri?

  7. Tim on September 26, 2010 at 6:36 am

    #6–amen.
    Members of our church should be smart enough to realize that it’s the federal government that has allowed us to practice our religion freely. Thank goodness for the interference of the federal government.

  8. Kevin Barney on September 26, 2010 at 7:11 am

    How does DOMA fit into this analysis?

  9. Dan on September 26, 2010 at 8:19 am

    #7 AMEN! and AMEN!

  10. Guy Murray on September 26, 2010 at 8:28 am

    It’s interesting, Kiami, that you find it necessary to paint Elder Oaks as a Constitutional extremist (that he would advocate racial discrimination) in order to strengthen your position that genderless marriage is somehow a protected constitutional right. You also ignore the fact that Loving had absolutely nothing to do with the definition of marriage, which has in fact been a state function since the inception of the union of states. Just how do you suppose the Loving court would have ruled had the couples in question been gay? It was never even a question that at and since Loving, the fundamental concept that marriage was between a man and woman, was never in question. The only question in Loving was whether a man and woman of different racial make up could be convicted of a crime for being married.

    Rather, Loving had to do with the criminalization of the marriage act, based on race, clearly violative of the 14th Amendment, which as you know was passed specifically to protect against improper racial classifications. Now, of course the 14th Amendment has been hijacked by those crusading to institute genderless marriage nationwide, via made up constitutional law and analysis since they cannot implement at the ballot box that which they seek to impose by judicial fiat.

    Kevin: Good question . . .

  11. Dan on September 26, 2010 at 8:34 am

    Legal conservatives, like Elder Oaks want to do away with things that violate the 10th Amendment, but they don’t seem to realize, as you note, Kaimi, that doing away with those things doesn’t even take into account the other amendments to the Constitution, nor clauses within the Constitution itself. It’s as if the 10th Amendment is the only one that really matters. My understanding of the 10th Amendment is as follows: “eh, anything we forgot to mention in the previous amendments or in the document itself, we’ll let states figure them out.” I understand that conservatives hate some of the more liberal provisions in American life (social security, medicare, and so on) even though they benefit the most (and in fact, conservative states benefit more from federal government programs than liberal states do, while liberal states pay more for federal government programs than conservative states do), but they’ve gotta realize that this fundamental difference and disagreement is not new to our time. As Ron Chernow wrote recently in the New York Times, this fundamental disagreement started right from the beginning. As he notes (and he ought to know, having written a fantastic biography of Alexander Hamilton, and I see a new one coming out of George Washington), Washington and Hamilton sided with more power to the federal government. I would hope Elder Oaks is not using his position as a religious leader to push a political position that everyone should follow because he is a religious leader; that we are able to disagree with him, and not follow his political thoughts, and still consider him an Apostle.

  12. WJ on September 26, 2010 at 8:48 am

    Now, this is what I’m talking about, a little love-spreading by Kaimi.

    #7 (and #9), why are you giving #6 an amen? He just pointed out how the federal government failed to come to the Saints’ defense, and then you high-five him while adding that the federal government is the only government body that has protected the Saints?! (scratching head). How did Buchanan’s Army work out for the Saints? Or how about federal appointees to the Utah Territory who despised the Saints? Ra ra ra.

  13. Dan on September 26, 2010 at 8:51 am

    WJ,

    I wasn’t Amen-ing #6. I was Amen-ing #7. #6 is correct that the Federal government failed to help the Saints, but #6′s point is that it is because the government at the time followed Elder Oaks’s recommendation, that it is up to states to decide, not the federal government, specifically through the 10th Amendment.

  14. WJ on September 26, 2010 at 8:58 am

    Yeah, but #7 is the one who raised the contradiction in the first place, a contradiction you apparently supported. But nevermind, its trivial. Perhaps the other point that needs to be accounted for is that for all we know the Saints may have been worse off had the federal government intervened. If they had not had reason to flee to a somewhat insular place where they could thrive, the church might never have become what it is today, a heartless, sexist, bigoted, racist, narrow-minded … oh wait sorry, thats the other sides talking points. Point being, federal government intervention might have been short term gain, long term loss, which might be the point Oaks is raising.

  15. Guy Murray on September 26, 2010 at 9:21 am

    And, just for fun–here’s the link to the Loving case so often cited by the genderless marriage advocates (and Kaimi in his post) claiming it somehow justifies the Constitutional conclusion that there is some constitutional right to genderless marriage:

    http://scholar.google.com/scholar_case?case=5103666188878568597&q=Loving+v+Virginia&hl=en&as_sdt=2002

  16. Kaimi Wenger on September 26, 2010 at 9:41 am

    Ardis and Guy,

    I disagree with the position Elder Oaks sets out here on the role of the federal government. This is clear from seven years of my published legal scholarship. It was clear back in law school, if you want to go that far.

    But thanks for impugning my motives, both of you. I’m sure that, but for recent developments in same-sex marriage, I would be rah-rah for states rights. I must have been captured by the Gay Agenda.

  17. Mark B. on September 26, 2010 at 9:47 am

    Those who believe that it’s the federal government that allows us to practice our religion seem to have forgotten the second half of the 19th century.

  18. Kaimi Wenger on September 26, 2010 at 9:48 am

    Guy,

    It’s no stretch to connect Elder Oaks’ arguments to Loving.

    The Virginia Supreme Court of Appeals, in its overturned decision upholding the statute, wrote:

    “We have given consideration to these decisions, but it must be pointed out that none of them deals with miscegenation statutes or curtails a legal truth which has always been recognized-that there is an overriding state interest in the institution of marriage. None of these decisions takes away from what was said by the United States Supreme Court in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 726, 31 L.Ed. 654, 657:

    ‘Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature.’

    [3] The defendants also refer us to a number of texts dealing with the sociological, biological and anthropological aspects of the question of interracial marriages to support their argument that the Naim decision is erroneous and that such marriages should not be forbidden by law.

    A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate.”

    That is, the lower court decision — upholding the statute — was all about the definition of marriage, and the role of courts in a system of government. The court said, this is how marriage is defined, this is about marriage and morality, and besides, the issue is outside the scope of the courts.

    (The case is Loving v. Commonwealth, 206 Va. 924 (1966).)

  19. Drew on September 26, 2010 at 9:52 am

    I think you’re really stretching there, Kaimi. Perhaps, even, putting words in Elder Oaks’ mouth. To use his words as a blanket statement in every instance that the federal government overturned state laws, suggesting that he must disagree with the result of the federal government’s decision, is a big stretch and represents a lot of what annoys me in today’s media—someone states A, therefore he means B.

    How was it an “inadvertant oversight”? Elder Oaks’ main point is to clarify both the state and federal government’s roles as outlined by the constitution. Period. He makes no other assertions. Nowhere does he declare that the state government is always right and the federal government is always wrong, or vice versa.

    A more appropriate and fair “critique” would’ve been to state that while the federal government’s role is clearly limited, there have been instances where it’s intervention provided a better outcome than a particularly state was willing to give, whether that intervention was “legal” under our constitution or not.

  20. Kaimi Wenger on September 26, 2010 at 9:56 am

    And of course, the Supreme Court’s decision in Loving itself contains several elements which cut strongly against Elder Oaks’ argument.

    First, the court asserts that, while marriage is a state institution, it is subject to the constraints of the 14th Amendment. That foundational move is vital for the Loving decision. It also seems to contradict Elder Oaks’ position as stated. It is at the very least a shift in federal power, of the kind which Elder Oaks seems to be broadly critical.

    In addition, the court rejects the idea that the reconstruction amendments ought to be tied to specific early understandings:

    “The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment.”

  21. Drew on September 26, 2010 at 10:01 am

    Or, if you disagree with Elder Oaks’ stance, it would be more appropriate to argue to what extent you believe the federal government is limited, or what it’s judicial role is. Because that wouldn’t be tangential to Elder Oaks’ argument.

  22. Drew on September 26, 2010 at 10:03 am

    I just don’t see how Elder Oaks’ statement is an indictment on the results of every judicial intervention made by the federal government.

  23. Kaimi Wenger on September 26, 2010 at 10:04 am

    Finally, I am not saying that Elder Oaks disagrees with Loving or thinks that it is a bad decision.

    I am saying that he makes a few broad constitutional statements which seem to be in tension with the Loving decision. This is why I said in the post, that I hope that he clarifies.

    I’m responding to what seems to be the most straightforward reading of his statement. However there are ways to frame his argument (to include certain types of exceptions) which would allow Loving in. These framings are in turn subject to their own potential critiques.

    I said in the original post that Elder Oaks made a broad statement, possibly an oversight, which would as stated apply to Loving v. Virginia, and that I hope he clarifies it. That remains my position.

  24. john willis on September 26, 2010 at 10:09 am

    I read the full text of Brother Oaks talk and I generally agree with Kami’s critique . I would agree that in the words of that great legal scholar Ricky Ricardo that Brother Oaks has “a lot of xplaining to do” if he thinks Loving was wrongly decided. Michael Klarman of Harvard University has caused a lot of comment on the web with a recent talk on “Constituion worship” .( I have not been able to find a link to the complete text yet.)It would be interesting to comapre and contrast the talks

    However if you skip the parts about marriage being a competely state responsibility I found a lot of wise counsel in the talk.

    Brother Oaks made a strong plea for greater civility in our political and legal discourse. I think this is a critique of a lot of the anti-Obama talk (he is the anti-christ) that is circulating in the LDS community. I would hope to see similar comments ,only more specific and pointed in general conference next week. (Maybe this is a case of two old University of Chicago Law professors sticking together)

    I also felt that his comments that allegations that a piece of legislation is unconstitutional should be made sparingly and not used as a substitute for rational policy analysis was right on point.

    A lot of the tea party types have been screaming that everything from social security to the individual mandate in the health care reform bill is unconstitional and part of satan’s plan for compulsion.

    This not rational political discourse but throwing a slogan at comp-licated issues without serious thought. I read these comments as a message to Mike Lee ,the future republican senator from Utah to chill
    out ,and stop waiving a copy of the constitution in the air and saying the new deal, civil rights laws and every proposal from the democratic party in the last 30 years violates basic consitutional values.

  25. Chris H. on September 26, 2010 at 10:11 am

    Kaimi,

    Thanks for addressing this speech. I found it interesting that most of it was a restatement of a similar speech he gave in 1992. For the most part it represents mainstream constitutionalism.

  26. Chad Too on September 26, 2010 at 10:22 am

    I can’t help wondering where Elder Oaks would stand on states rights in the hypothetical case of Joseph Missionary v. Missouri (1903) where an LDS missionary serving in the Missouri Conference (fearing for his own safety) sued to end Gov. Boggs’ famous Extermination Order and lost at the Missouri Supreme Court. Should Elder Missionary simply throw up his hands and accept that Missouri has the right to say it’s OK to harm him as an enemy of the state, or should he elevate this federally? If the Church were to file an amicus brief, which side would they file with?

  27. Dan on September 26, 2010 at 10:54 am

    Mark B.,

    Those who believe that it’s the federal government that allows us to practice our religion seem to have forgotten the second half of the 19th century.

    You mean when we were practicing illegal polygamy?

  28. bdelloid rotifer on September 26, 2010 at 11:21 am

    “The dominance of state law will also be changed if, after full review, federal courts decree that a state law on marriage is invalid under the United States Constitution.” That’s just what the U.S. Supreme Court did when they decided Reynolds v. United States (that Polygamy case from Utah) in 1869.

    I’m not surprised Oaks thinks Reynolds v. United States was wrongly decided, but a decision on Schwarzenegger v. Perry won’t change the “dominance of state law” when it comes to marriage. That boat has already sailed.

  29. Guy Murray on September 26, 2010 at 11:53 am

    Kaimi #16:

    But thanks for impugning my motives, both of you. I’m sure that, but for recent developments in same-sex marriage, I would be rah-rah for states rights. I must have been captured by the Gay Agenda.

    Nothing wrong w/ motives, Kaimi–and I’m not impugning them, only calling them out. You are motivated by the gay rights agenda promoting genderless marriage, which is clear from your writings and commentary. There’s nothing immoral about that, unless you somehow feel ashamed of those motives.

    All I’m saying, is that Loving has nothing to do with the definition of marriage. That’s where Elder Oaks is going with this, and I believe that is clear from his and other Church pronouncements on marriage.

    I’ll say this again: Loving dealt with the criminalization of marriage–not it’s definition. I’m not arguing with you that Loving is a bad decision. I think it’s a good decision. There, you and I agree. I think Elder Oaks probably thinks the same–and he’s got a bit more legal scholarship and understand than you and I combined.

    Where you and I differ, Kiami, is your insistence on using Loving as some precedent for the idea that genderless marriage is a constitutional right or that sexual preference should be a protected class–if in fact you believe that. I’m not sure you do, so correct me if I’m mistaken on that count.

    I believe I am correct that you rely on Loving to support current genderless marriage constitutional arguments.

    Here’s the statute in question in Loving:

    The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 20-58 of the Virginia Code:

    “Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”
    Section 20-59, which defines the penalty for miscegenation, provides:

    “Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

    Clearly the court was dealing with a criminal statute, making it a felony for interracial couples to marry. (Interracial couples, I might add, which were man/woman couples–not gay). What is going on today, and what I believe Elder Oaks is arguing about is the Civil definition of marriage as between a man and a woman. No criminal penalties–not even a criminal statute. Elder Oaks is simply pointing out that if and when the federal appellate judiciary takes it upon themselves to overturn that state decision as somehow violative of the Federal Constitution, then there will have been an incredible shift of power from state legislatures, which are direct representatives of the people–to the federally unelected judiciary. That’s problematic.

  30. Nate Oman on September 26, 2010 at 2:46 pm

    Kaimi: Unless one is unwilling to admit the possibility that respect for state autonomy is a matter of degree, I don’t think it is especially difficult to reconcile Elder Oaks’s remarks with Loving. The hardest sentence to square with the decision is this one:

    “The dominance of state law will also be changed if, after full review, federal courts decree that a state law on marriage is invalid under the United States Constitution.”

    I think that you could interpret this sentence as repudiating the application of the 14th amendment to state law. On the other hand, this would be a fairly extreme position to take and seems inconsistent with the tenor of the rest of his talk. One might offer a saving interpretation whereby you understood him to be arguing that overly aggressive and unjustified holdings under the 14th amendment are not only wrong as a matter of 14th amendment law but also threaten federalism. This reading of course begs the question of what counts as an overly aggressive and unjustified holding under the 14th amendment, but demanding a full theory of constitutional doctrine from a constitution day speech seems a bit much.

    Hence, while your concern with the statement is not implausible, I do think that pretty standard and common sense methods of interpretation, e.g. understanding a statement in light of its context and the principle of charity, allow for a reading that is consistent with Loving.

    Finally, while it has been a long time since I looked at it, I don’t think that Elder Oaks published legal scholarship or judicial opinions support the notion that the 14th amendment does not apply to federal review of state laws. Reading the statement against the background of his legal ouevre it would be rather remarkable if in this speech he was staking out such a radical new position, particularly in light of the fact that most of the speech seems to be staking out a moderate position vis-a-vis the often hyper-conservative, tea party style rhetoric the circles in some LDS circles.

  31. Alan on September 26, 2010 at 3:17 pm

    Guy @29:

    The criminality aspect in Loving is important, but then one could bring up Lawrence v Texas to talk about the criminality of sodomy that was federally overturned. I believe when it came to that case, Oaks said something along the lines of: “A protection of privacy shouldn’t be construed as an endorsement of bad behavior,” whereas legalizing “genderless marriage” would amount to a federal endorsement of behavior, according to Oaks. Perry v. Schwarzenegger, though, argues that it’s not a matter of endorsing behavior, but giving rights to citizens and families that are already existent. I think that everyone knows that constitutional law is an interpretative art and the arguments that Walker made wouldn’t fly even 10 years ago. I’m not sure about today, though. Enough people know gay people and see this as a genuine civil rights issue, which has been in the works for at least 50 years. That’s where the Loving parallels come in, IMO, but there will always be problems correlating gender with race.

  32. Dave on September 26, 2010 at 3:54 pm

    Guy, while it is true that the Loving’s were facing criminal sanctions, I don’t think it is correct that the Loving decision was reviewing criminal statutes. The case on review concerned a criminal sanction only because the Loving’s were married outside of Virginia, then returned to the state.

    The miscegenation statutes under review also included Virginia statutes which barred the issuance of a marriage license to a couple like the Lovings (which is why they had to go out of state to get married). Those licensing statutes are are not criminal statutes. Furthermore, terms controlling to whom a marriage license can be issued essentially constitute the state’s definition of marriage. (This is also how the definition of marriage in California is worked out on the ground — directives to local officials as to who can or cannot be issued a marriage license.)

    So I think the US Supreme Court in Loving arguably was speaking directly to a state definition of marriage (in the context of reviewing the state law for a violation of the 14th Amendment).

  33. Last Lemming on September 26, 2010 at 7:37 pm

    I try to look for reasons to be a federalist, but I find the criminal punishment aspects of Loving and Lawrence to put them one one side of the line (favoring federal intervention) and Prop 8 on the other.

    But I wonder how Oaks squares his support for a constitutional amendment banning same-sex marriage nationwide with his insistence that personal relationships are the proper domain of the states. The federalist in me protests.

  34. Stephen M (Ethesis) on September 26, 2010 at 7:51 pm

    Kaimi, back when he was on the short list for the United States Supreme Court, having coming off acting dean of Chicago’s law school, I think he was asked about this sort of thing when he was teaching at BYU, I just don’t remember the answer.

    I think Ardis has it right though. Your arguments and statements vis a vis Oaks are extremely forced and contrived, though that is the sort of thing that tends to come from teaching law ;)

    I do think that the 13th amendment informs the 14th, all in all. Now if gays were historically enslaved, then indicia of slavery that needed to be overturned, as they were in Loving and Brown, would apply to laws that affect Gays, but not Blacks.

    (Maybe this is a case of two old University of Chicago Law professors sticking together) — Oaks probably has a lot explaining to do there too, about how he can advocate more kindness and civility when it might involve law professors.

    Stan Beale — Anyway, I think you have it wrong, Oaks talk takes into account the interplay of the 13th, 14th and 15th amendment, those who disagree are the ones who are breaking the 14th out into some super-status amendment that can be applied to challenge anything one dislikes at any time based on a more enlightened federal perspective.

    Nate — I think that you could interpret this sentence as repudiating the application of the 14th amendment to state law. On the other hand, this would be a fairly extreme position to take and seems inconsistent with the tenor of the rest of his talk. I could not have said it better myself.

  35. Stephen M (Ethesis) on September 26, 2010 at 7:52 pm

    Lemming, a constitutional amendment is necessary under Oaks view as without it the federal government lacks power to enact statutes such as DOMA.

  36. manaen on September 26, 2010 at 8:23 pm

    29. Loving dealt with the criminalization of marriage -– not it’s definition.
    .
    Succinct and complete. Thanks.
    .
    31. “A protection of privacy shouldn’t be construed as an endorsement of bad behavior,” whereas legalizing “genderless marriage” would amount to a federal endorsement of behavior
    .
    I’ve been making this point here in SoCal. Prop 22, Prop 8, etc. had nothing to do with behavior. I object to being forced, at the threat of incarceration and seizure of my property, to pay through taxes for governmental endorsement of what I believe to be immoral.

  37. Aaron B on September 26, 2010 at 8:31 pm

    It is fair to ask proponents of strong federalism whether they agree with the outcomes of particular cases that seem to be wrongly decided under their preferred federalist framework, whether said proponent is Elder Oaks or anyone else.

  38. JimD on September 26, 2010 at 9:50 pm

    @26:

    Can’t speak for Elder Oaks, but as for myself: I’d rather deal with a limited constitution that allowed me to be expelled from some states, than a broad constitution that allowed the feds to incarcerate me in all of them.

  39. Guy Murray on September 26, 2010 at 10:13 pm

    Alan #31

    but then one could bring up Lawrence v Texas to talk about the criminality of sodomy that was federally overturned. I believe when it came to that case, Oaks said something along the lines of: “A protection of privacy shouldn’t be construed as an endorsement of bad behavior,” whereas legalizing “genderless marriage” would amount to a federal endorsement of behavior, according to Oaks.

    Lawrence is an interesting case. And, my response is that the right to privacy while not explicitly contained in the U.S. Constitution is I believe very well established now via the privacy case law since Griswold, perhaps even prior. I have no problem with the concept of privacy as a fundamental right. I don’t even argue with the notion of marriage as a fundamental right–but I disagree it extends to gay marriage. Constitutionally you have to create too many contorted arguments to get there.

    My biggest problem with the judicial creation of gay marriage as a fundamental right is that there is not the same legislative framework in place as there was with anti-miscegenation laws, separate but equal, civil rights in general, i.e., 13th and 14th Amendments legislatively laid the groundwork for the subsequent judicial holdings.

    I think if state legislatures around the country were to adopt gay marriage statutes, then there would be a greater argument for it. Or, if Congress were to pass similar amendments for sexual orientation as they did for race. But, until then, I think the courts which mandate gay marriage do so without sufficient constitutional precedent.

    I think that everyone knows that constitutional law is an interpretative art and the arguments that Walker made wouldn’t fly even 10 years ago.

    I agree with you here.

    but there will always be problems correlating gender with race.

    Also agree with you here as well . . .

  40. Guy Murray on September 26, 2010 at 10:30 pm

    Dave #32

    Guy, while it is true that the Loving’s were facing criminal sanctions, I don’t think it is correct that the Loving decision was reviewing criminal statutes.

    I don’t know Dave. I don’t see how you reach that conclusion. I quoted the statutes and the court’s language directly from Loving in #29 above. And in the concluding paragraphs the Loving Court said:

    These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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. Skinner v. Oklahoma, 316 U. S. 535, 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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.

    These convictions must be reversed.

    It is so ordered.

    Seems pretty clear from this language the court was dealing with the criminal statutes and not the licensing statutes, and that the convictions, criminal in nature, i.e., the sentence was I think for 25 years clearly relate to a criminal conviction, not a licensing scheme.

  41. Nate W. on September 26, 2010 at 10:34 pm

    Guy:

    I think if state legislatures around the country were to adopt gay marriage statutes, then there would be a greater argument for it. Or, if Congress were to pass similar amendments for sexual orientation as they did for race. But, until then, I think the courts which mandate gay marriage do so without sufficient constitutional precedent.

    I know that Justice Scalia’s recent comments seem to have given certain quarters license to try to argue that the 14th Amendment only applies to race, that is an interpretation that is not supported by the text. Here is section 1, in full:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

    A conservative character from The West Wing explained why she doesn’t support the ERA–it sums up my belief as well.

  42. Nate W. on September 26, 2010 at 10:39 pm

    Guy @ 40:

    If that were the case, then after Loving, interracial couples could still be denied marriage rights–they just couldn’t criminally sanction them. Obviously that was not the case.

  43. Nate W. on September 26, 2010 at 10:40 pm

    re: 42–in case it is unclear, by they just couldn’t criminally sanction them I mean that the state government could not criminally sanction interracial couples.

  44. Last Lemming on September 26, 2010 at 10:59 pm

    a constitutional amendment is necessary under Oaks view as without it the federal government lacks power to enact statutes such as DOMA.

    Personally, I don’t think any amendment is needed to enforce DOMA. But if I am wrong, the amendment need not ban same-sex marriage nationwide. It need only cover the same territory as DOMA itself, and let states do as the will.

  45. Josh on September 27, 2010 at 2:07 am

    It is interesting how the LDS church didn’t thing the US government had “the power to make laws on personal relationships” when they argued in favor of legalizing polygamy before the Supreme Court – and lost – in Reynolds v. United States in 1878. It was convenient for them then to want the U.S. government to allow polygamy. Now it’s inconvenient for the U.S. to legalize SSM. Hence, Oaks hedging opinion piece.

  46. Guy Murray on September 27, 2010 at 2:23 am

    Dave #32 continued:

    I think it’s still different, though I can better see your argument now. The licensing statutes–though I admit I have not actually read them–at least from the opinion’s language were part of an overall scheme, which was still criminal in nature. Certainly the clerks were not subject to criminal sanction; however, they were not allowed to issue licenses to interracial couples, as part of a criminal statutory scheme, designed to criminalize such marriages, with very severe criminal penalties. They were not defining marriage, however, per se. Marriage was still defined as a man and a woman, and I think even that is clear from the Loving language.

    I think it’s similar to clerks not being allowed to issue marriage licenses to certain classes of individuals even today, i.e., siblings and others of a certain degree of kinship, i.e, cousins, etc. Another would be minors below a certain age. Those licensing schemes, while perhaps not criminal per se, are still not defining statutes either. Rather they are geared toward keeping certain people from obtaining the marriage license. Marriage in CA as we know is defined as between a man and woman. It’s a civil statute. It’s not further defined by licensing regulations as man/woman, not siblings, etc. etc.

  47. Guy Murray on September 27, 2010 at 2:32 am

    Hi Nate #41

    I think the background of the 14th Amendment clearly reflects its original intent was racial in nature:

    http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution#Background

    I just don’t think you can read sexual orientation into the 14th Amendment. This is my biggest objection to the judicial imposition of gay marriage.

    If state legislatures and/or the federal legislature would enact the statutory scheme as they did with race, then I would concede the legal/constitutional argument.

  48. Guy Murray on September 27, 2010 at 2:35 am

    Nate #42:

    I think I addressed that issue in my further reply to Dave in #46. But, if not, I think Loving struck down Virginia’s entire statutory framework re: interracial marriage, which included both criminal statutes, and licensing statutes, which clearly were part of the enforcement mechanism of the criminal statutes. I don’t think there is a strong argument that they defined marriage, just as other licensing schemes today do not define marriage.

  49. Chino Blanco on September 27, 2010 at 4:53 am

    Two of the top ten Google search results for “genderless marriage” link to posts by Guy. Articles by his fellow Mormon, Monte Neil Stewart, account for another three. Over on Yahoo! the same search turns up five links to Guy and two to Monte in the top ten. I’ve often wondered about the phrase’s provenance. Considering that Mormon authors are batting .500 and .700 in Google and Yahoo! searches, I’d like to ask Guy: is it LDS?

  50. Chino Blanco on September 27, 2010 at 5:20 am

    One of the reasons I ask is because “miscegenation” has a fascinating etymological history that, perhaps similarly, can be traced back to a pair of 19th century Americans who managed by way of a hoax pamphlet to introduce this unfortunate term into our language, namely: David Goodman Croly and George Wakeman.

  51. Chris H. on September 27, 2010 at 9:28 am

    I pretty sure that Guy copyrighted the term. You have to pay him a nickel each time you use it.

  52. Chino Blanco on September 27, 2010 at 9:53 am

    Ha! So, forget provenance. If someone can confirm who owns the rights, I’ll gladly make an offer to purchase them. Because once their mine, it’s gonna cost anyone who wants to use “genderless marriage” a heckuva lot more than a nickel a pop.

  53. Rameumptom on September 27, 2010 at 1:11 pm

    There are many historians who believe that slavery was on its way out in the South, without a War between the States. Virginia was already discussing freeing its slaves, when the war broke out.
    However, the fear of federal interference in the states’ rights caused many states to secede, knowing that slavery was only one of many issues that would impact them if the federal government held sway.

    When you look at the post-Reconstruction backlash against blacks caused another century of black oppression, perhaps we did things the wrong way in having government forcing the states back then.

    Lovings v Virginia was the correct outcome, but the wrong process. The States are where we experiment and need to develop a more perfect union. Imposition from the federal government limits all choices, and forces all people to accept whatever is placed upon them. There is a great chance for tyranny throughout the land, and not just in a few states. States can influence each other for good. The federal government can only coerce.

    Woodrow Wilson’s progressive federal government made changes here and abroad that still affect us almost a century later. The Serbian/Croatian wars were made possible by his architecting new nations out of the old ways.

  54. Nate W. on September 27, 2010 at 1:17 pm

    Chino–It’s Monte Stewart’s word. Read footnote 6 of this for his explanation:

    http://marriagelawfoundation.org/publications/Duke%20Article.pdf

  55. bryanp on September 27, 2010 at 1:22 pm

    First, Elder Oaks is addressing the far reaching hand of the federal government and it’s abuse of the constitution.

    Second, if anyone has studied the constitution and it’s limitations on the federal government. If the federal government would have stayed within its limited powers, this conversation would not be happening. Secondly, marriage laws come into question even under the states because of the reasons why the laws came about. Basically, the state dictates who and who cannot get married. It had to do with preventing interracial marriages.

  56. Nate W. on September 27, 2010 at 1:51 pm

    Guy @ 47:

    So does that mean that gender, national origin and alienage are not protected under equal protection? And if the drafters wanted to limit equal protection guarantees to race, why didn’t they say that in the text? They seem to have known how to properly express such an intention, as they limited the 15th amendment to race.

    Was Craig v. Boren correctly decided? How about Reed v. Reed? Yick Wo v. Hopkins? Graham v Richardson? Note that I’m asking not whether they were correct as a policy matter–I’m asking whether there gender, national origin and alienage deserves heightened scrutiny for equal protection.

  57. Nate W. on September 27, 2010 at 1:58 pm

    Guy @ 48:

    So is it your opinion that had there been no criminal sanction or if the statute had said that marriage in Virginia was between a man and woman of the same race, and no other purported marriages would be recognized regardless of where solemnized, that it would have passed muster? Alabama just repealed their statute 10 years ago–if they drafted a law like the one I just mentioned, should the courts find it constitutional?

  58. john willis on September 27, 2010 at 2:01 pm

    In re post#53— your claim that the southern states seceeded because of concerns about federal interference in states rights, other than slavery is just WRONG.

    Virginia had a chance to move toward abolishing slavery in the 1830′s when it revised it’s constitution. Depsite the efforts of the aged James Madison it chose not to.

    You are buying in to the “noble lost cause mythology” that arose in reconstruction and was revived in the 1950′s during the civil rights struggle.

    The northern states would of tolerated slavery in the south if the southern states would of not been insistent on exporting it to the western territories.

    The south wanted to continue slavery and that is the fundamental reason it secceded. Look at any good history of the Civil War such as James Mcpherson’s Battle cry of Freedom and you will see that the states rights interpretation of why the south secceded doesn’t hold water.

    I don’t want to be a part of a threadjack but I could not let such gross distortion go unchallenged.

  59. bdelloid rotifer on September 27, 2010 at 2:11 pm

    #53; the states that seceded from the Union during the Civil War clearly stated that they were doing so over the issue of slavery. I see no reason to doubt those closest to the issue. The post-reconstruction backlash might not have happened if Lincoln hadn’t been killed. As far as I can tell the whole “state’s rights” argument is a post-hoc invention. Now back to your regularly scheduled constitutional wrangling.

  60. Bill of Wasilla on September 27, 2010 at 2:12 pm

    Guy -

    I haven’t the time or energy to read every sentence of this long debate, but I will note this statement of yours:

    “It’s interesting, Kiami, that you find it necessary to paint Elder Oaks as a Constitutional extremist (that he would advocate racial discrimination) ”

    I don’t see anything in Kaimi’s words that infers that he believes Elder Oaks would advocate racial discrimination. Instead, he has advanced a most interesting argument that, whether or not Oaks would himself favor racial discrimination, that would be the result if his interpretation of State’s rights and the 10th amendment had also been that of the federal courts.

    When I was a student at BYU, I once got the assignment of photographing then President Dallin Oaks with his family in the President’s mansion, either for the Daily Universe or the Banyan – I can’t remember for certain. When I arrived, he was in his study, studying legal writings, and it took some doing for his family to draw him out to pose with them for the photograph. Some of his children expressed a little exasperation to me as they said that was always the situation when he was home… he was always in his study, studying, they said, and was very hard to drag out for anything.

    Like Kaimi, I question his interpretation of this issue, but am certain that he reached it as the result of intense study and contemplation the likes of which few among us will ever equal.

    By the way – either shortly before or shortly after I took that picture, I entered into an inter-racial marriage – one that is still going strong 36 and a half years later.

  61. bdelloid rotifer on September 27, 2010 at 2:14 pm

    #53, you need not wade through histories, you can read the secession documents yourself. http://americancivilwar.com/documents/

  62. Ardis E. Parshall on September 27, 2010 at 2:15 pm

    Basically, the state dictates who and who cannot get married. It had to do with preventing interracial marriages.

    Hardly, Bryan. The law has been used to prevent interracial marriages, no question about it, but that’s not even remotely why the law got involved in marriage.

    Just limiting the discussion to marriage in the U.S. since independence, governments had an overwhelming interest in, among many other issues, protecting women and preventing women and children from becoming dependant on public charity if at all possible. This was the purpose of requiring marriage bonds, for instance, that you have no doubt run across in your family history research (you do family history research, no?): If a couple was not eligible to marry because of an existing marriage or any other cause, the state could collect the bond posted by the bondsmen and use it to support the woman and any children born to the invalid marriage, lessening the burden on the community. Such practical considerations were always at the heart of early marriage laws.

    Interracial marriage (not interracial liaisons, but the formal, social recognition of an interracial marriage) was not something that had even been contemplated by white Americans when the first American marriage laws were instituted.

  63. Clark on September 27, 2010 at 2:33 pm

    All that said, I think it would resolve a slew of issues if the state just got out of the marriage business entirely.

  64. Jim Donaldson on September 27, 2010 at 2:56 pm

    I think so long as the amount of your income tax bill is partially determined by whether you are married or not, the government, at whatever level, is in the marriage business. They probably aren’t just going to take your word for it.

    Our government and our church agree on one thing, it is a good thing to have married women at home with the children or at least encourage marriage? If not why subsidize it?

  65. manaen on September 27, 2010 at 5:07 pm

    FWIW, Barack Obama proposed in the very early stages of the last presidential campaign that governments only perform civil unions. Each faith group — and, I suppose, anyone else — then could decide for themselves whether to recognize those as marriages.

  66. Dan on September 27, 2010 at 7:45 pm

    I’m with Clark in #63 on this issue.

  67. RW on September 27, 2010 at 8:07 pm

    In reading Elder Oaks’ comments I was highly amused by his words about using the constitution as a weapon:

    But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates. In this way, a constitution can be used to stimulate discussion and to seek unity.

    So why did he use the California Constitution as a weapon for such a specific and church-centric cause? It seems as if he were violating his own principles here.

  68. Chino Blanco on September 27, 2010 at 8:54 pm

    @54: Thanks, Nate W. Good grief, what a load of gibberish. Ready to make a deal, Monte?

  69. Ken on September 28, 2010 at 2:45 pm

    Whether or not one thinks that the constitutional rights of the federal government take precedent over the rights of states seems to me to be largely the function of how one feels about the particular issue being argued. Let us not forget that Joseph Smith was a vocal critic of the notion of “states rights” in the late 1830s and 1840s, when the feds would not intervene in matters adversely affecting the saints in Illinois and Missouri. Joseph said that the states’ rights doctrine was “a stink offering in the nose of the almighty,” and that the U.S. Constitution was not “broad enough to cover the whole ground…(to) punish those mobs, states or communities who interfere with the rights of the people.” (see Quinn, The Mormon Hierachy, vol. 1, p. 102). Sounds like reason enough for the 14th amendment to have later been enacted, and it’s too bad for the saints it wasn’t around in the 1830s and 1840s.

  70. Cynthia L. on September 28, 2010 at 4:04 pm

    Kaimi, thanks for this write-up. IANAL, but I am in an interracial marriage. When I read Oaks’ remarks last week, I was immediately confused and saddened at the apparent slight to Loving. By slight I mean apparently forgetting about it entirely (someone in my shoes does not accidentally overlook Loving).

    Nate Oman, I have to question myself a hundred times over any time I find myself disagreeing with you, but I don’t think the conflict is so simple to resolve as you say. Unless we just assume that Oaks’ grand theory of federalism is that it’s good when it’s good and it’s bad when it’s bad. The whole “tenor” of his talk was not extreme in that it was civil, sure. But the tenor was also one of extended love letter to federalism, specifically, a federalism that is newly threatened by any federal court ruling on the topic of marriage. I don’t see how this newness can be read as anything but just overlooking Loving entirely. And were it to be applied to Loving, yes, there is a conflict there. Easy enough for him to say, well that is a matter of degree and so egregious that an exception can be made. I feel safe in assuming he would say that if asked. But the fact remains that, as articulated, what he said takes no account of, and is in conflict with, Loving.

  71. Mark B. on September 28, 2010 at 4:58 pm

    Only, Cynthia, if you assume that Loving spoke to the description of what marriage is–which it did not–as opposed to whether the race of the man and woman entering into the marriage was a valid basis for a state to prohibit them from marrying.

    Because, frankly, Loving wasn’t really a decision about Virginia’s laws about marriage, but their laws about race.

  72. Cynthia L. on September 28, 2010 at 8:07 pm

    I’m not sure I follow, Mark. But since my main point was just that I was feeling sad, I guess I’ll take your assurance as some reason to feel better, even if I don’t really follow it exactly. :)

  73. palerobber on September 28, 2010 at 10:39 pm

    Guy #29

    Clearly the court [in Loving] was dealing with a criminal statute, making it a felony for interracial couples to marry. [...] What is going on today, and what I believe Elder Oaks is arguing about is the Civil definition of marriage as between a man and a woman.

    except the Loving decision also changed the “civil definition” of marriage in many states including Utah (Title 30 Chapter 1).

    what then are you left with?

  74. palerobber on September 29, 2010 at 12:18 am

    Guy #39

    My biggest problem with the judicial creation of gay marriage as a fundamental right is [...]

    …that said creation is a myth?

    in reality, no standing US court decision striking down anti-gay marriage statutes has found gay marriage to be a “fundamental right”.

    instead we’ve seen the following:
    rational basis in Baker (VT).
    rational basis in Goodridge (MA).
    intermediate scrutiny in Lewis (NJ).
    strict scrutiny (suspect class) in Kerrigan (CT).
    intermediate scrutiny in Varnum (IA).
    rational basis in Perry (USA).

  75. JWL on September 29, 2010 at 4:38 am

    Loving v. Virginia is not applicable to gay marriage. The Loving case was about race discrimination. Providing legal rights to African-Americans was understood to be the the fourteenth amendment’s purpose by its enacters in Congress in 1866 and the ratifying states in 1867-68. While most of them probably would have disapproved of miscegnation, they all would have acknowledged that the intent of the amendment was to protect African-American civil rights. This makes Loving (like Brown v. Board of Education) a tolerable extension of the fourteenth amendment since they realized its broader intent even if its enacters would not have gone that far on specifics at the time of its enactment.

    However, it would never have occurred to a single legislator in either Congress or any ratifying state legislature in the 1860s that the fourteenth amendment would have covered what they would have called sodomy (“homosexuality” being a term of later coinage). If it had been suggested to them there can be no doubt that all of them (hundreds in number) would have universally rejected the idea.

    If we are to live under a government of democracy and laws rather than a judicial tyranny, laws (including constitutions) must be moored to their original intent and meaning at the time of their enactment. Amendment is the only legitimate means of making a change so fundamental as to stretch the fourteenth amendment to cover homosexuality. Perry v. Schwarzenegger (and Lawrence v. Texas before it) were wrongly decided. Unless incorporated in the Constitution by amendment, gay rights lie beyond federal judicial competence. Instead they must be secured democratically by legislative action.

  76. john willis on September 29, 2010 at 12:44 pm

    For any of you fellow law geeks out there who would be interested in reading Michael Klarman’s talk on constitutional idolatry and comparing it with Elder Oaks’ talk I did find a link to the text of the talk.

    hhtp://balkin.blogspot.com/2010/2009/skeptical-view-of-constitution-worship.html

    As I used to say when I taught college and gave essay exams, compare and contrast

  77. christian on September 29, 2010 at 1:42 pm

    Klarman’s talk sounds like sour grapes trying to find some principle to support his already established position.

    Elder Oaks talk sounds like he’s adopting principles and deriving his position from those principles.

    Maybe the inverse could be said if you see it differently. But one talk seems more balanced and thoughtful, reasoning from principles and the other seems -almost- petty.

  78. john willis on September 29, 2010 at 2:27 pm

    You must not be a Baltimore Orioles fan as is Klarman.

    I think Klarman is correct that the Supreme Court does not get too far out in front of public opinion on a variety of public issues. This is my big objection to the federal court decision in the California gay marriage case, not that it violates the intent of the framers of the 14th amendment. The framers of the 14th amendment would be shocked and apallled to see the 14th amendment use to allow interracial marriages but I believe that Loving was correctly decided.

    As Kami said in post#2 if the court would of waited for southern state legislatures to overturn law banning interacial marriage they would still be on the books.

    I am an an old fashioned Jerome Frank legal realist (another old University of Chicago law professor) and I believe that while the Supreme court does not always follow the election returns it rarely gets too far ahead of public opinion.

    Klarman’s talk if more informal, with references to the Baltimore Orioles but it gives a needed and realistic perspective on the Constitiution.

    I do not see Klarman’s talk and Oaks’s talk as 100% incompatible. Both provide a perspectives that we need to take into account when we think about the role of the Constiitution in the 21st century.

    On the whole states rights 10th amendment issue ,I am a follower of Louis Brandeis in regards to federalism. He saw states as social laboratories to test out new social and economic polices(see his 1932 dissenting opinion in New State Ice v. Liberman. Ex, Massachusetts reguiring an individual mandate for health insurance,are you listening Mitt Romney??) The J. Strom Thurmond ,massive resistance to Brown v. Board of Education states right perspective is just a cover for opposition to needed progressive reforms.

    I have rambled on enough. It would be great to see a debate between Klarman and Oaks on line or better yet in person. We might actually see a thoughtful and intelligent discussion of real issues surrounding the role of the constitution in the 21st century.Not going to happen, but I can dream can’t I ??

  79. Brian on September 29, 2010 at 8:30 pm

    Baker v. Nelson

  80. chris on September 30, 2010 at 12:25 pm

    I can tell you how the debate would go down. One side with lots of firey examples via pathos-logos and the other side dispassionate and logically approaching the issue via ethos-logos.

    One would look statesmen like and remind you of great ideals and personal responsibility, accountability, and sacrifice and the other would be a bit populist, still making good points, and bogging you down with lots of what-ifs and extreme examples to demonstrate the supposed-fallacy of a particular point. — forgetting that the lack of a unifying theory of something does not mean you should throw the baby out with the bathwater.

  81. JDD on October 4, 2010 at 5:57 am

    It’s obvious that Elder Oaks did not have Loving v. Virginia in mind. It’s silly to suggest otherwise.

  82. Randy on October 4, 2010 at 10:29 am

    @81 it is obvious Oaks did not have Loving v. Virginia or any number of state’s rights v. US in mind. That was and is the problem.

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