Nebraska gay marriage ruling: only federal issues
UPDATE Friday evening: The Tennessee Supreme Court, in a decision that can be found here, ruled that individuals who had challenged a proposed ballot measure on a state constitutional amendment to bar gay marriage did not have standing to sue. The ruling that the challengers had not shown that they would be harmed by having the amendment appear on the ballot on Nov. 7 was based solely on state law.
A ruling by the Eighth Circuit Court on Friday, rejecting a constitutional challenge to a ban on same-sex marriage in Nebraska by the voters of that state, set up a potential case for Supreme Court review — provided supporters of gay marriage are willing to test it (and that may be doubtful). The ruling contrasts with a recent decision of New York’s highest state court against gay marriage, which was confined to state law questions. Similarly, two rulings by Massachusetts’ highest court — one allowing gay marriage under the state constitution, the other rejecting a challenge to a ballot measure to undo that ruling — were based on state law only.
In a unanimous decision in Citizens for Equal Protection et al., v. Bruning, et al. (Circuit docket 05-2604), the three-judge panel rejected equal protection, bill-of-attainder and First Amendment challenges to the state constitutional amendment. That amendment, Article I Section 29, says that “only marriage beween a man and a woman shall be valid or recognized in Nebraska,” and goes on to ban gay civil unions, doimestic partnerships, “or other similar same-sex relationships.” That makes it one of the most sweeping bans in the nation on same-sex unions.
Although the Nebraska case was pursued in federal court on federal constitutional grounds, most of the recent litigation on the gay marriage issue has been based upon state law questions. That reflects a basic strategy of leaders of the gay rights movement to avoid a text of federal constitutional issues, before the nation has had some experience with gay marriage and its acceptance might be more widespread. It is unclear, though, whether the leaders would be able to discourage an appeal to the Supreme Court if those who brought the Nebraska challenge wish to attempt such an appeal.
In a decision written by Chief Circuit Judge James B. Loken (a one-time law clerk to Justice Byron R. White), the Eighth Circuit overturned a federal judge’s decision striking down the Nebraska state amendment. It found that the ban should be judged under equal protection analysis only by rational basis review, and concluded that the legislature had sufficient reason to steer child-bearing into marriage. Since only opposite-sex couples can procreate, and since only opposite-sex couples can produce children “by accident,” the legislature had a legitimate state interest in confining marriage to them, the Court indicated.
“Whatever our personal views regarding this political and sociological debate, we cannot conclude that the state’s justification lacks a rational relationship to legitimate state interests,” Judge Loken wrote.
The Court refused to apply to the Nebraska enactment the Supreme Court’s 1996 decision in Romer v. Evans, striking down a Colorado state constitutional amendment forbidding legislation to create rights for homosexuals. The Colorado provision, the Eighth Circuit said, was invalided because of its “unprecedented scope,” repealing all existing and barring all future preferential policies based on homosexual acts and relationships. The Nebraska amendment, it added, is not so broad that its enactment could be explained only by animus toward same-sex couples.
The panel easily disposed of the other constitutional challenges to the state ban. It found that the measure was not an invalid bill of attainder, because it was not designed to punish homosexuals. The Court turned down a freedom-of-association claim and a right-to-petition claim under the First Amendment — claims not raised by the parties, but raised and decided by the District judge. If those issues were before it, the Eighth Circuit said, it would find they had no merit.
Judge Loken concluded: “In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equjal Protection Clause or any other provision of the United States Constitution.” The judge went on to praise the Supreme Court for what he called its “restraint” in finding the lack of a substantial federal constitution in a state ban in Minnesota on marriage licenses for same-sex couples — the summary dismissal in Baker v. Nelson in 1972.
(Thanks to Howard Bashman of How Appealing blog for the alert to the Eighth Circuit ruling.)
It was interesting to note that the opinion cited Hernandez v. Robles favorably. One wonders whether the panel put the decision on hold pending that decision.
Comment by KipEsquire — July 14, 2006 @ 12:28 pm
No doubt about it, this case and Romer have tension. There is little doubt in my mind that a substantial number of people voted for this provision not because of post-hoc rationalizations about “accidental” births and what have you, but because of a visceral dislike of the idea of sanctioning the relationships of gay people. Now, typically, the rational basis test looks for any rationale, whether or not such rationale was the basis for the legislative act being challenged, but the bottom line is that the motivation of the legislative actor (here the people of Nebraska) is an issue under Romer, and it doesn’t matter that the ban is less sweeping.
Of course, complicating the issue is that the animus towards homosexual relationships and sanctifying them through the imprimatur of the state (and hence the society) is religiously based. Roman Catholicism regards homosexual behavior as sinful, and the Old Testament, which many in this nation consider the literal Word of God, prescribes death for that behavior. These views have the protection of the First Amendment, and I think that the First Amendment would be violated if the courts decide to invalidate laws based on religiously-motivated animus.
Obviously, this is an easy case. The Framers of the Constitution did not intend the 14th Amendment to force the states to sanction homosexual conduct. Any court that holds otherwise is simply lawless. However, it is tough to square the approach of Lawrence and Romer with this case, other than to say that Lawrence and Romer just don’t go that far.
Comment by federalist — July 14, 2006 @ 1:14 pm
Since only opposite-sex couples can procreate, and since only opposite-sex couples can produce children “by accident,” the legislature had a legitimate state interest in confining marriage to them, the Court indicated.
This is the rationale that the NY Court of Appeals relied on.
Comment by Commentator — July 14, 2006 @ 2:02 pm
A majority of prejudice voters can dictate the legal rights of a minority group. This is called prejudice and discrimination. Since when does a majority group get to vote on the human rights of a minority group? I thought we outlawed slavery?
I find this whole thing dishearten. Why is it that the courts are completely avoiding and walking around the issue? Homosexuals are not equal in the eye of the state and therefore will not have be given equal relationship marriage rights. “Since only opposite-sex couples can procreate, and since only opposite-sex couples can produce children “by accident,” the legislature had a legitimate state interest in confining marriage to them, the Court indicated.
And goes on to ban gay civil unions, domestic partnerships, “or other similar same-sex relationships.” Many heterosexual couples are allowed to marry even though nether or one of the partners can not procreate. Many gay couples have children from both previous relationships and adoption. A family is a family, weather gay or straight!
Courts could be going against Federal Human Right Laws and Human Equality Laws by allowing prejudice to be on State Constitutions. Human Rights are being violated. Let us remember that the Federal Laws oversee all State Laws. Each state is violating federal human rights laws of tax paying citizens.
Maybe gay people should not have to pay taxes since they are not given the same benefits as heterosexual couples. Maybe we should have a tax break from homosexual couples.
It is illegal for gay couple to be domestic partners in these states. Meaning they can not be together when the other is dieing, share property, make decisions of partner after and before death, no immigration marriage rights, but heterosexual couples have all these rights. This is a bunch of crock. This country has reached a low. Where a majority of prejudice voters can dictate the legal rights of a minority. The rest of the world is laughing at the US knowing that we are the most ignorant country in the world!
Comment by jocandle — July 14, 2006 @ 5:06 pm
Of course, it is interesting to note that the panel slapping down the District Judge are GOP appointees and the District Judge is a Clinton appointee.
Comment by federalist — July 14, 2006 @ 6:13 pm
“Lawless?” Kinda like Loving, which many of the framers would have been appalled at. What about if “sodomy” of some sorts is allowed by state law, including for non-married couples? Or, if the states irrationallly differentiated between sexual conduct in some other fashion?
And, what is “homosexual conduct?” This is remarkably broad. Does this include kissing? Heavy petting? This is far from trivial since the provision is remarkably broad too. It speaks of “gay civil unions, domestic partnerships [or]or other similar same-sex relationships.”
This is much more than “marriage.” This involves more than the specious “accidental birth” argument. [Do these people know of that obscure concept known as bisexual behavior, behavior invited if even “civil unions” are not in place to keep monogamious relationships in place.]
Broad measures like this offer a good shot at colorable Romer claims. Even if “gay marriage” should be avoided for pragmatic reasons alone in litigation strategy, overbroad measures like this just might be a way to go. Surely on the state level.
Comment by Joe — July 14, 2006 @ 8:30 pm
Loving v Virginia was a direct application of the 14th amendment, designed to end invidious racial discrimination. I don’t think the framers would have been apalled that the determination that “Equal Protection” meant more that simple equal application of law, as Virginia argued
Comment by Ben Kennedy — July 14, 2006 @ 8:53 pm
Joe: bans on interracial marriage simply cannot be squared with the plain language of the EPC. It’s that simple.
As for the sanctioning of homosexual conduct, if a state sanctions two gays getting married, guess what, it is sanctioning homosexual conduct, since sexual conduct is traditionally part and parcel of the marital union. (Remember, the failure to consummate the marriage or engage in relations was a big deal in marriage law.) That’s what I was getting at, not a description of what those practices may be.
And, of course, if there is tension between Romer and the upholding of laws sanctioning gay marriage, that shows the severe problems underlying Romer, which is, quite frankly, simply wrongly decided.
What is troublesome to me is that the controversies over gay marriage is hardening the battlelines in America on two fronts. One, the issues of judicial activism are rearing their ugly head again, and we certainly don’t need that. Two, and more importantly, the gay marriage issue is forcing people to take sides with little area for compromise. Perhaps, things like visitations (there are horror stories about when a gay person takes ill and the family bars a long-term partner from seeing the sick person), gay adoptions, custody issues etc. could be dealt with. But now, with the marriage/no-marriage issue at a forefront, issues about adoptions etc. will likely be dealt with through the lens of this Kulturkampf, not with cooler heads prevailing.
I think that people on the gay marriage side need to show a little more respect for democracy and society. By demanding that the rest of society recognize and sanction (as opposed to simply tolerate) relationships that many find distasteful or sinful, they are demanding that others kowtow to their desires. People have a right to reject such demands forcefully and to call into question the rightness of the cause.
Many in this debate point to words like “irrational”. But the reality is that homosexual conduct and heterosexual conduct are different, and the society views them differently. I will take but one example. The Kansas Supreme Court a few years back decided the Limon case. In that case, an adult who had engaged in homosexual behavior with a minor was sentenced to 17 years in prison. He argued that because Kansas had limited its Romeo and Juliet law (laws which decriminalize or reduce the penalties for adult/minor sexual relations where the two participants are close in age and the relations are consensual) to instances of heterosexual conduct, his sentence violated equal protection. Unfortunately, the Kansas Supreme Court agreed. That was sheer nonsense.
The bottom line is that the state certainly has the right to regulate adult-child sexual relations, and it certainly can determine that young adults engaging in homosexual sex with children is more blameworthy than young adults engaging in heterosexual sex with children. And anyone who denies the reality that the average parent in America would be far far more upset if their child engaged in homosexual consensual sex with an young adult than heterosexual sex with a young adult is simply being disingenuous.
Comment by federalist — July 14, 2006 @ 9:12 pm
With all due respect to Ben Kennedy, the frmaers most likely would have been at the least shocked and stunned, if not horrified, to learn that the 14th amendment barred laws against inter-racial marriage.
In fact, if one reads the debates in the 39th Congress, one finds evidence of the fact the framers specifically did not intend it to affect marriage laws at all.
Furthermore, in a SCOTUS case Pace v Alabama that came up only a few short years after the 14th amendment, at at ime when every Judge on the bench would have been personally familiar with the passage and what the framers intendedm the Court unanimously rejected a challenge to a law regarding interracial relationships(in language that directly applied to marriage as well).
The facts are pretty plain that while one can play with the evidence and make post hoc dostorions that apply the epc to interracial relationships, it was never the intention or understanidng of the framers that it would do so, let alone that it would apply to homosexual marriage.
Comment by rufus peckham — July 14, 2006 @ 11:15 pm
And the opinion was by Justice Field, who if anything was one of the more progressive members of the bench. See his opinion in the slaughter house cases, amog others. It was less than a page, it was unanimous, and it wasn’t even really up for debate:
Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense
designated and not against the person of any particular color or race. The
punishment of each offending person, whether white or black, is the same.
Whatever protection was involved was equal. There was no discrimination or favoritism showed to either the white race, or to the black race. There were like pains and penalties, the white and the black were subject to the same law, the same punishment-the very definition of the epc given by Bingham, Howard and others and the Congress in the Civil Rights Act and the 14th amendment enforcement acts.
Now, if you want to argue that over the course of time, the meaning changed from its original meaning to one that encompassed laws based on racial animus and division, whether or not they were equally applied, then Loving and other cases fit.
Given that the nation has generally accepted that meaning and states aren’t in the business of challenging it, I don’t really have a quarrel with it.
But the historical record is pretty clear as to what the original understanding of the clause was.
Comment by rufus peckham — July 14, 2006 @ 11:21 pm
Here’s an actual quote from a framer of the 14th Amendment:
Illinois Republican Senator Lyman Trumbull: “If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either.” Neither the Civil Rights Act of 1866 nor the Fourteenth Amendment would have passed if it had intended to strike down laws against interracial marriage.
There were further explicit statements made to the effect that marriage laws would not be impacted by the new amendment. This history poses a dilemma for thoroughgoing originalists who object to antimiscegenation laws. If they are to stay true to their interpretive philosophy, such originalists must concede that Loving v. Commonwealth of Virginia was wrongly decided. It is a delicious irony that the most fervent champion of originalism on the Supreme Court in recent memory is an African-American–Justice Clarence Thomas–who was married in Virginia to a white woman named Virginia.
Comment by rufus peckham — July 15, 2006 @ 12:54 am
The problem is that societies change through time. The US of 1868 is not the US of 1954, 1967 or 2006. And it cannot be.
All of us share the idea that the Constitution is a good document, on ethat embodies certain ideals and values, one that seeks to “secure the blessings of liberty”. But the fact is that it is not perfect. In many ways, it was and remains deeply flawed.
Until 1865, it allowed states to allow slavery. Until 1870 it allowd them to deny blacks the right to vote. Until 1920 it allowed states to deny women the right to vote. Until 2003 it allowed states to criminalize gay sex. It still allows them to criminalize drug use. It does not require a minimum wage, environmental protections, gender equality, and many other values embodied in the Universal Delcaration of Human Rights.
But it does allow for it to be amended to change with the times. When we have Judges that take it upon themselves to do the amending, instead of the people, is when we have problems.
The problem becomes that it is tough for Americans of this era to admit to themselves that the text does not reflect their views. It’s hard for someone to say, “Well, I might not approve, but interracial marriage laws are Constiutional” or “Segregated schools are Constitutional”. That does not mean they are ok or good, mind you.
So what happens? We go out of our way to make the text conform to our notions of what’s right and wrong. As the Court said in Brown after specifically ordering briefing on what the original meniang of the 14th was with regards to segregation and finding that it was something they weren’t exactly comfortable with “it’s inconclusive”.
It really wasn’t that inconclusive. It’s about as conclusive as one could hope to get for something that happened 100 yrs before. But it was anathema to everything they stood for.
Read Jackson’s Brown memo and he pretty much admits that the history is pretty clear but that the Court needs to change the rules of the game for other reasons. Equal protection must become equal treatment, even though it never meant that before. Even though the SC was unanimous on just about every decision that dealt with it, and that included guys like Brandeis, Homes, Stone, Harlan and others.
Now, given that it’s been 50 years and the public has generally accepte this redefinition, I don’t really have a problem with it, and from a personal view I welcome it. But that doesn’t mean I’m fooling myself as to what the original understanding was.
It’s a very difficult question for a judge: What do you when the text seemingly conflicts with everything you value and with the foundations of your beliefs and morals? How do you respond?
Comment by rufus peckham — July 15, 2006 @ 1:07 am
More “Primary Source” support of the symmetrical view of the epc:
Harrison’s “originalist” defense of Loving rests on a facile dismissal
of the problem of “symmetrical” discrimination. Harrison
argues:
Under a ban on interracial marriage, the rights of individuals
are not the same under all descriptions, because blacks can
marry blacks and whites cannot, even though all are prevented
from marrying members of the other race. But if the rights are
different under any description, they are not the same.457
But the only authority from the Thirty-Ninth Congress
Harrison can cite is Senator Reverdy Johnson (D. Md.) a bitter opponent
of the Civil Rights Act and the Fourteenth Amendment.458
In response to Johnson, the Amendment’s Republican proponents
replied that it did not prohibit “symmetrical” discrimination.
Senator
Fessenden, Republican of Maine, argued that miscegenation
laws were equal because they punished both races equally for mixed
marriages.459 Likewise, in the House, Illinois Republican Samuel
W. Moulton, denied “that it is a civil right for a white man to marry
a black woman or for a black man to marry a white woman.”460
Harrison, who evidently feels Johnson had the better of the argument,
concludes: “On this issue, the Republicans either deceived
themselves or decided that the only thing for it was a round untruth.”
461 But whether the Republicans deceived themselves or
merely deceived the ratifying public with a “round untruth,” the fact
remains that the public understanding of the Amendment expressed
by its originators (in contrast to its opponents, such as Reverdy
Johnson) was that it forbade asymmetrical, but not symmetrical
discrimination.
Again, one can disagree with that, but facts are facts. Under the original understanding, Loving was wrongly decided. Would I overrule it? No. It’s 40 years old. No state has challenged it. It’s not the subject of bitter dispute and the public doesn’t seem to have a problem with it(the total opposite of Roe by the way).
In that case, as Madison said, the overwhelming and longstanding public and legislative acceptance of and reliance on a decision counsel’s against overruling it becuase of one’s personal views on the original merits of the matter.
However, if I were on the Court in 1967, I would have dissented, much as Justices Black and Stewart did in Griswold two years earlier. Not because I agreed with the VA law, I don’t. But becuase I can find neither in the text nor the history of the text, a “right to marriage or interracial marriage” outside of the extratextual judicial interpretation that has created it.
And because I believe that the symmetrical view that was expressed in 1866 by the Framers and repeated by Justice Field in 1883 and by CJ Taft in 1927 and supported by well over 50 Federal and State Court precedents, was the correct one per the original understanding.
Comment by rufus peckham — July 15, 2006 @ 2:16 am
Justice Stewart concurred in Loving,
“I have previously expressed the belief that ‘it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.’ Because I adhere to that belief, I concur in the judgment of the Court.”
Justice Thomas wrote in Missouri v Jenkins,
“The point of the Equal Protection Clause is not to enforce strict race mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color.”
I am entirely sympathetic to the notion that some “rights” we supposedly have (e.g. “right” to have contraception) are found nowhere in the text of the Constitution. My basic point is that those in favor of gay marriage (in arena very different from this one) often point to Loving and say something like “Aha! You must disgree with Loving too. You think the state can prohibit inter-racial marriages, you racist homophobe”.
You have clearly shown out that through time, people *in practice* have thought that anti-miscegenation where square with “Equal Protection”. However, I think Justice Thomas demonstrates how anti-miscegenation laws *can* be opposed by the original intent of the 14th. The only disgreement is whether symmetrical application of laws that refer to race can pass Equal Protection muster, a fine point indeed. I don’t think that every framer of the 14th would be “shocked and stunned, if not horrified” at this relatively minor point of application. But even if they did feel that way, it is nothing compared to how they would feel about the right to abortion-on-demand being found in the 14th amendment. Those are the “Original Intent” battles worth fighting, not Brown I and Loving.
Comment by Ben Kennedy — July 15, 2006 @ 9:44 am
Ben Kennedy,
Stewart was no originalist and while from a moral view his opinion is commendable, it’s mere ipse dixit on his part, especially since the framers explicitly contradicted him.
As for Thomas, he’s usually pretty good, but the facts are against him. Even Harlan in Plessy did not go so far as to claim it meant equal treatment. Much like the aff action cases, originalists don’t really go too far into the history of the era.
Of course, it CAN be squared with originalism. So can just about any decision if you hunt for enough quotes, take enough things out of context, etc…
As Thomas said in Hamdan, even tough he disagreed with Stevens, Stevens’ opinion was “plausible”.
The originalist defense of Loving/Brown etc… is certainly plausible, but it is not probable, and certainly not conclusive. Reaching the opposite result is far more plausible and probable.
That being said, the Loving decision is on firmer ground and precedent than Roe. That is of a level of magnitude worse. i do agree with you there.
Comment by rufus peckham — July 15, 2006 @ 1:34 pm
As Justice Harlan said in Reynolds v Sims, in language that directly applies:
Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional “principle,” and that this Court should “take the lead” in promoting reform when other branches of government fail to act. The Constitution is [p625] not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.
Comment by rufus peckham — July 15, 2006 @ 2:01 pm
Of course, the ultimate irony of that passage from Harlan is that only a year later he would right the opinion taht has been repeatedly cited as the best defense and foundation for the “right to prvacy” and all of the substantive due process rights that flow from it. Rights, which were the product of ad hoc judicial interpretation surely as much as the reapportionment cases.
Only one year later, Harlan would commit the same offense he excoriated his colleagues for. Apparently, he could not heed his own advice.
I guess it just goes to show that no Judge is perfect.
Comment by rufus peckham — July 15, 2006 @ 5:09 pm
Ah, an attack on Roe.
What part of Roe was such a problem? The unborn not being “persons?” No. The importance of privacy over familial matters? Meyers and Pierce secured that in the 1920s. Closer, you have Griswold. So, apparently there is something about fertilization that is the difference. That is why it was so horrible. But, if one actually reads the opinion, we see that this line is rather hazy.
Originalism doesn’t seem to be your bottome line either, so the fact abortion was outlawed in 1868 wasn’t compelling.
So we go to state purpose. Health? No, that would be irrational … trumping women’s health over unconstitutional persons … up to a point at least. So, Roe’s fault ala Ginsburg might be that it is was overbroad. This isn’t TOO damning.
Morality? The opinion noted the state didn’t rely on it. Listening to the oral argument, they did compare fetuses with the mentally handicapped etc. … as if they were “persons.” But, again, that wouldn’t work.
Maybe, abortion is different from Griswold. That concerned “use” at home. But, some justices at least voiced broader themes of familial privacy, and this is how a majority of the lower courts interpreted it. As did the Supremes by the time of Roe.
Maybe, it’s the recognition that this particular violation of privacy to secure non-constitutional persons particularly burdened woman and their autonomy. If so, this would open up a can of worms.
At this time, many poorer women were being pressured to be sterilized. This as well as the general fact that the state was telling the woman what to do with the fertility reeked of slavery days. Is stopping this such a travesty?
Was the era’s tendency to micromanage only so horrible in this particular case?
Comment by Joe — July 15, 2006 @ 7:16 pm
The 14A doesn’t say “race,” Federalist. As noted, already, an “equal negation” rule was accepted by many Framers. Both blacks and whites could not marry the other sex. Equality. Surely of a facial form. Meanwhile heterosexuals can marry their soul mates, while homosexuals cannot. This facially at least seems to violate “equal protection.”
BTW, you again .. just like the Court … focused on marriage. NYC, for instance, recognize “domestic partnerships” for limited reasons. It is not “marriage.” But, the law here bans Omaha from passing such a law, for instance, to secure health proxies for partners, or the like. I’m not sure how this furthers the interests of “responsible parenthood” or whatnot.
I’d add the ruling conveniently avoided Turner, which discussed how marriage was a lot more than raising children, and is very important even for those who cannot conceive. This amendment goes further. It even bans anything “similar” to marriage. But, such couples can live together and have sex etc. per Lawrence. A ruling that honors the intimate associations involved.
I’m not sure the “rational” (if intimate association warrants only that test) basis of this broad based ban.
I tell ya what … it isn’t a felt need that original understanding compels it.
Comment by Joe — July 15, 2006 @ 7:26 pm
Re-reading, I see RP would have dissented in Loving. Originalism comes into play. So, I’d remove one thread from my argument.
btw Harlan dissented in ‘one man, one vote’ cases because he argued neither Art. I or the 14A was intended to reach that far. @2 of the 14A was esp. telling.
But, Harlan referenced the open-ended nature of fundamental rights protected by the 14A too, harkening back to the Slaughterhouse Cases. I’m not sure how one can selectively support his jurisprudence. It was really of a piece.
It is cheating really to selectively quote boilerplate respecting how the Constitution doesn’t cover all wrongs. Anyone can cite that respecting any particular issue. Thus, Stevens noted in Bush v. Gore that voting is imperfect as juries.
Comment by Joe — July 15, 2006 @ 7:35 pm
Joe, Roe is inherently flawed because it reached the conclusion that the unborn at *any* age have no federal protection. A baby that is one minute old is entitled to Equal Protection, but two minutes ago it could have been destroyed with no federal Constitutional implications. This inescapble consequence of Roe is quite abusrd.
Your high school biology teacher will tell you that after conception, there is a new member of our species that we call homo sapiens, with a mother and a father. It can even happen in a test-tube, and some day soon it will never need a human womb. But according to Roe, the state can only protect it from destruction when it could hypothetically surive in an advanced incubator. Roe is anathema to common-sense for people who really think about the value of human life, e.g. athiest Nat Hentoff.
Comment by Ben Kennedy — July 15, 2006 @ 9:10 pm
What does the law’s ban on “other similar same-sex relationships” mean? Would that include private personal contracts regarding issues of health care and finances? Accepting that the law can prohibit state recognition of same-sex relationships, can it also prohibit contractual relationships that cover some of what follows automatically from marriage but that need not be confined to such a relationship? Once state recognition is removed from the picture, I don’t see how a law can ban a “non-marriage marriage contract” between two people who may or may not even be a couple. It would be just a contract in the eyes of the law/state, though it could be closer to a civil union to the people involved.
Comment by mjsolomon — July 17, 2006 @ 8:35 am