July 08, 2004

Orrin Hatch: Defender Of Liberty!

The senator from Utah has an editorial up on The National Review about the threat of gay marriage and it's pretty much what you'd expect. He talks about activist judges while ignoring the fact that overturning laws, sometimes even popular laws, is and always has been within the purview of judges given their primary task of upholding the requirements of state and federal Constitutions. He talks about how people in several states (New York, California, Oregon, etc.) have passed somewhat popular laws "defending" marriage, without mentioning, again, that people pass popular, but unconstitutional, laws all the time that have to be overturned by "activist" judges because, well, that's their job. He lays out the "five fronts" of the war against traditional marriage:
1) State Constitutional challenges to state laws passed by voters.
2) Federal Constitutional challenges
3) challenges against the Defense of Marriage Act (DOMA) passed by Congress in '96
4) challenges to state laws under the full faith and credit clause attempting to enforce marriages in one state in another, and
5) If all else fails, sue, sue, sue

First, 1) Again, many state Constitutions, like those already mentioned, have built into them even broader civil rights for the residents of that state than allotted to them by the US Constitution. As much as Hatch might hate it, Constitutions trump laws every day of the week and any law that contradicts a part of a Constitution MUST be struck down. It's just the way law works. Most states have gotten around this by passing Constitutional Amendments, but that might not work as we'll soon see.

2) This is mostly going to fall under the 14th Amendment, specifically the part where it says that no state shall "deny to any person within its jurisdiction the equal protection of the laws", which was then applied to the Federal Government through the 5th Amendment. Let's break that down. "Laws" must include laws and regulations on marriage and that's pretty obvious. "Person" applies to gays as well as heteros. "Equal protection" is where it gets a little tricky, but Constitutional law has said that if you can identify a group that is being legislated against in order to shut them out, that's not equal protection. Rick Santorum can talk all he wants about beastiality, but just look at this article: these laws are targeted with specific intent to shut gays out of the institution of marriage. Swap blacks for gays and see if this isn't a violation of the 14th Amendment. In fact, it was like that right up until "activist judges" struck down popular laws against miscegenation.

3) Again, DOMA, being a law, must be Constitutional in order to be valid. I think it's pretty obvious that it's not, but it also represents Congressional overreach, that is, Congress got its hands into making laws which have always been a state matter.

4) Though passing a law like DOMA is definitely overreaching, it's pretty clear now that it's not just a state matter anymore because of the Full Faith and Credit Clause. Long story short, states have to give recognize the laws of other states so, for instance, a married couple from Texas can move to Florida and Florida must recognize their marriage because it was made under valid Texas law. This really becomes a federal issue as you can see because if one state has a Constitutional amendment against gay marriage and another allows gay marriage we're going to run into trouble, sort of like when we had some states that said slavery was illegal and others that said it was a-okay.

5) Not much to say on that one.

The bottom line is that Hatch is right: gay marriage under the current legal system is inevitable. We have amendments in the federal and most if not all state Constitutions requiring that we not make legal clubs which we can deny people from. Heteros get over 1000 federal rights the moment they get married including rights about visitation in a medical emergency, what happens to children after death, inheritance, etc., and we're systematically saying to gays that they cannot have these rights. It's illegal. The only way to make it not illegal is to change the US Constitution, but the same could be said for segregating schools, establishing an official religion, or allowing defendants to be convicted without a trial.

All animals are equal, but some animals are more equal than others?


Anonymous said...

Brandon says:

There is just one problem with legally allowing marriage for gays, it is by it's very nature a religious practice, and forcing religions to recognize marriage if they do not want to is crossing that very big line between church and state.

This is exactly why you see John Kerry saying he supports civil unions but not gay marriage, civil unions with all the rights and benefits as awarded to heterosexual married couples, just without going into the very sticky, and potentially troubling, religious questions.

MosBen said...

Firstly, it is not by nature a religious practice. In fact, given the number of countries in the world, all of which as far as I'm aware acknowledge some kind of state sanctioned union, then state unions apply to more people than religious marriages do. I for instance will not be receiving a religious marriage, but will at some point receive a government marriage. Everyone gets a state marriage, not everyone gets religiously married.

Secondly, no one has ever suggested that religions of any kind would EVER have to recognize a gay marriage ever. This is about rights given to some people but not others. This is about taking property away from someone because their partner was the same sex as them and they couldn't get a marriage to enforce their inheritance rights.

As far as church and state, as I said in the post, private citizens can have all kinds of beliefs that would be illegal if expressed as laws. Churches railed against misegination, segregation, slavery, and nearly every extention of rights in the course of this countries history. Now, I don't mean to be "anti-religion", and in fact I think that for most people religion has a very definite function and use in the country and their individual lives. The problem is that churches are, by their very nature,to some extent conservative because they rely on history and dogma to inform their stances rather than a completely logical evaluation of situations. This is going to mean that at least some times they're going to be wrong because of this.

Finally, civil unions are bunk. It's a political fence on which people sit because they realize that gay marriage is unpopular, but illegalizing it is legally untennable and immoral. Finally, having two types of marriages for gays and heteros is a separate but equal situation, which is wrong as well. Being part of the governmentally sanctioned franchise of marriage is a big part of what a lot of gays want. They want to say "This is my wife" or "This is my husband" not "civil union partner".

Yeah, this is a change, and an uncomfortable one at that for a lot of people, but so has every major social change ever. It's tough to admit that we've been mistreating people for years and decades, but when something is wrong it's wrong, opinions and uncomfortableness be damned.

Noumena said...

I'd have to agree with Ben's legal analysis: laws banning recognition of homosexual marriages by the state (meaning governments, federal, state, and local) are violations of equal protection, and therefore generally unconstitutional. At the same time, laws that correct this violation can only mean that the state recognizes these marriages, and grants certain politic (of the polis) rights and responsibilities to the individuals who enter into them; they say nothing at all about whether individuals recognize them, except insofar as that individual is acting as a representative of the state. For example, a religious conservative can refuse to refer to a woman's wife as such in casual conversation; but if that conservative works in city hall handing out marriage licenses, they can't refuse the license to a woman and her intended wife based their own feelings about same sex couplings.

Substituting `different race' for `same sex' is an excellent illustration of the point. Even today, a religious authority (minister, &c.) could preach the evils of miscegenation and refuse to marry two individuals of different races. The state isn't violating her freedom of religious belief by saying that it grants official recognition to marriages of individuals of different races. Nor is recognition of such marriages an endorsement of some theology, because the justification for such recognition is the equal protection clause of the Constitution, not a theological principle.

And really, let's not overlook the fact that letting more people marry is not going to somehow poison the ones that already exist. It's not defending marriage, it's defending heterosexism.

MosBen said...

Though I guess to be totally intellectually honest, the analogy with racial issues only works if, like me, you believe that homosexuality is an immutable trait that you by and large can't change. Many conservatives, increasingly the further right you get on the political spectrum, simply don't believe this therefore denying rights to gays isn't a problem.

This just goes to our understanding of people though. The Civil Rights Movement wouldn't make much sense to a phrenologist that thought blacks had smaller brain pans and were therefore somehow whites. People seem to be trending to the belief that sexuality is at least somewhat genetic, which is a good sign for gay rights.

Noumena said...

As Ben put it, `"Equal protection" is where it gets a little tricky, but Constitutional law has said that if you can identify a group that is being legislated against in order to shut them out, that's not equal protection.' So it doesn't matter whether homosexuality is `caused' by genetics, a personal choice of who to be attracted to, or being possessed by a demon (none of which is prima facie compelling anyways): on the assumption that we can identify homosexual couples when they go to apply for a marriage license (which is also problematic, but only if you're a postmodern feminist), this is an identifiable group that is being legislated against, QED.