Tuesday, October 14, 2014

The contradictory argument for same-sex marriage

Same-sex marriage advocates have two primary arguments for their position. Unfortunately they explicitly contradict each other.

When you say that we should not disenfranchise voters who have passed laws that disallow gay marriage, they say that the Constitution protects the rights of minorities like gays from majorities who seek to violate those rights. But when you point out that the right to gay marriage is not in the Constitution, they point to polls that show the majority is in favor of gay marriage.

Mona Charen is onto the contradiction, voiced again by Ted Olson on Fox News on Sunday:
Which is it: a fundamental right that ought to be recognized without regard to majority views, or a popular view that deserves to be enshrined in the Constitution by the courts just because it's polling well?
Read the rest here.

11 comments:

KyCobb said...

More superficial analysis from Martin. First, everyone has a constitutional right to equal protection of the laws. Second, the nation is divided into 50 states, so while there is now a national majority in favor of marriage equality, in many states the majority still oppose ssm. Its interesting; I use to hear conservatives say the US is a republic and not a democracy, and that an actual democracy in which the majority has unconstrained power is a tyranny. But now Martin is a Marxist; he believes in the dictatorship of the proletariat, in that the majority has absolute, totalitarian power over the minority, and can strip them of their civil rights at will.

Singring said...

Even Fox news is having none of Perkin's bigoted nonsense anymore.

It's well and truly over, Martin.

Anonymous said...

On gay marriage, Singring and KyCobb are probably right. On the issue of judges playing legislators, that could be a bomb eventually.

Art said...

What parts of the Constitution pertain to marriage (in any sense)? Do one man and one woman have a Constitutional right to marriage?

KyCobb said...

Art,

The right to marry is a liberty interest protected by substantive due process in the 14th Amendment. So one man and one woman do have a right to marry.

Martin Cothran said...

Art,

I seen you're not keeping up on this issue. I suggest reading the Windsor decision, which made precisely that point: the federal government has no business making marriage policy, which is and has always been the right of states. Needless to say, federal courts are ignoring Windsor's exaltation of the right of states to define marriage and now the Supreme Court is punting because they don't want to explicitly contradict the reasoning of last year's decision which is what they would have to do if they uphold all of these state decisions.

KyCobb said...

Art,

What Martin failed to mention is that Windsor specifically states that the states' regulation of domestic relations is subject to certain constitutional guarantees, and the Court cited Loving v. Virgina which struck down state anti-miscegenation laws. So there is no contradiction between Windsor and the current cases striking down state ssm bans.

Martin Cothran said...

KyCobb,

What Constitutional protections was Loving referring to that would apply to the case under consideration in Windsor?

KyCobb said...

Martin,

Both apply the 14th Amendment. Loving relies on the equal protection and due process clauses of the 14th Amendment, and Windsor found a violation of liberty interests protected by the 5th Amendment, which has been incorporated to apply to the states by the 14th Amendment.

Anonymous said...

I'm starting to wonder if America's progressive income tax rates could be challenged with 14 amendment argument that KyCobb so often invokes?

KyCobb said...

Anonymous,

No. There is no equal protection argument, because the higher tax bracket only applies to income that poorer people don't have.