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Damn
Maryland’s Highest Court, in a 4-3 ruling, has held that my state’s prohibition of same-sex marriage does not violate the state constitution. The opinion is here, it’s 244 pages, so more comment later.
I will say that if there is any state where gay marriage might make it through the legislature, Maryland strikes me as a good bet. The State Senate is 33/14 D-R, and the House of Delegates is a whopping 104/37 D-R, giving them a veto-proof majority they shouldn’t need because the Governor is also a Democrat (albeit one with an eye on higher office). So while I’m disappointed in the decision, winning the fight outright in the legislature would be a far bigger victory, and is now what we should be pushing for.
26 Responses to “Damn”
disappointed that the judges decided to follow the clear words of the state constitution, and not as you wished it were written? let’s just ignore the law if it doesn’t give you what you want, right?
Legislative powers belong in the legislature, not in the judiciary (with judges substituting whims and wishes and political views and objectives for the law itself).
You should have been pushing for a victory in the legislature rather than by or with the judiciary from the start, in order to be legitimate for a change.
OMG, I’m with DLS on something. What’s this world coming to?
1. It could very easily be interpreted that the Maryland Constitution is contradicting itself when it comes to this matter. The original constitution defines marriage as between one man and one woman, but the Equal Rights Amendment to that constitution says the state government cannot discriminate based on sex, religion, race, etc. In this particular case, there was no reason for any of the plaintiffs to be denied marriage licenses other than their genders. The court had solid legal reasoning on either side of the argument.
2. I have never heard a logical or (U.S.) Constitutional reason for denying gay people the right to get married.
I will be stunned beyond words if Steve Sturm looked up a word of the Maryland Constitution before writing that post.
I am still at a loss how gender can be a protected class and gender-based descrimination is legal.
Well it is and it isn’t gender based discrimination. Neither men nor women are forbidden to get married. The law’s wording doesn’t cover this particular area. So, another law was made to clarify it. Sorta like laws prohibiting men from women’s restrooms and vice versa. Only different.
I think gay people should be allowed to marry, but under the current MD law, from what I read at least, the judge just can’t overturn it until the legislature takes action.
And if the law said that black people and white people couldn’t get married, what then?
then you change the law… in the legislature.
and dave, don’t forget I attended Md public schools when they actually taught stuff like the constitution and grammar (although I admit I have slipped) and non fuzzy math and literature written by dead white guys… you know, back when they had standards and weren’t as interested in pushing liberal dogma on students…. and back when the students weren’t so enamored with themselves as they are today.
“And if the law said that black people and white people couldn’t get married, what then?”
Good point. I’ve changed my mind. The whole thing is such a stupid issue. Who cares of gays want to marry? My marriage won’t be any better or worse for it and I have bigger issues that actually affect me to worry about.
And if the law saws that a black man cannot marry a white woman, and the legislature, elected by the public, sees fit to agree with said law, what then?
then, because we live in a democracy, the public gets what they want. .. whether or not the issue is, as sam says, stupid.
since there will always be disagreements on matters of substance, the question is whether the majority gets to impose its views on the minority or whether the minority gets to impose its views on the majority. even though I’m often in the minority, I vote for the majority to get its way… whether it be on this issue or any other issue that comes up for debate.
and then we have people like David, who, regardless of whether he is in the majority or minority, wants his views imposed on everybody else. of course, he won’t want to use the word ‘impose’, but that’s what he is doing.
Steve and DLS: As per my other post, the MD Sup. Ct. admits that a “literal” reading of Article 46 and its relevant precedents would require a victory for the plaintiffs, the majority just decided it’d rather get creative. So whose ignoring the text now?
Steve:
This “radical democratic” approach you take — where any majoritarian preference is automatically justified under democratic principles, is rather asinine, both specifically applied here (see 1 and 2) and as a general principle (2, 3, and 4).
1) The Maryland constitution was democratically ratified, so rulings applying it against a state action are every bit as democratically legitimate as rulings applying statutes against state actions.
2) Virtually everybody agrees that there are somethings a majority can’t morally impose upon a minority, even in a democracy (call them democratic exceptions) — if you disagree, that’s lovely, but I think that a just system of government should be construed as prohibiting 51 people from voting to enslave the other 49.
3) Implicit in the concept of democracy are certain things beyond its scope (a majority can’t vote to deprive a minority of its right to vote, e.g.), if the majority votes to do these sorts of things, a democratic state can still proscribe it.
4) Implicit in the concept of law is that there are certain types of laws that can’t be made (see Lon L. Fuller’s list of “Eight Routes of Failure for any Legal System”), if a majority votes to pass “invisible laws” that aren’t known to the populace (to use one of Fuller’s examples), I think a democratic state could proscribe that too (or else, I guess, jettison “rule of law” entirely).
The majority rule principle doesn’t apply when minority rights are infringed on. The protection of minority rigts is at the very basis of law.
That’s one of the contradictions in the ‘leave it to states’ argument on any controversial issue. The smaller the community (state vs federal), the more likely it is to pass laws infringing on minority rights.
When that happens, the courts have to step in.
Who’s quoting cleverly out of context, particularly when the court majority also took pains to explain that it was paying (proper) attention to the intention of the legislators? (After all, real law is the “codification” or the inscription of what the legislators seek, i.e., intend.)
A court and a judge have no right at all to say that the word “red,” accompanied by desciptions of those who wrote the word “red” of the object in question with the words “crimson” and “scarlet,” must now meen green.
Just don’t claim to be a strict constructionalist if you support the ruling.
Doma: “The protection of minority rigts is at the very basis of law.”
From my limited understanding, this is not true. Descrimination is protected against in specific settings, (some ways for employment, more extensively in housing/renting) but minority rights is definitely not part of our law.
The majority is but a guideline. Thats why we have constitutional protections to ensure that there are somethings a majority can not do to the minority. The majority can pass laws but only insofar as it does not violate rights that are given to ALL of us.
Egrubs is correct in that I phrased the protection of minority roghts in law badly.
The Tyranny of the Majority principle is not represented in individual laws. It is represented in the Constiturion with such as the Bill of Rights and in assessing all laws in a parliamiamentary democracy.
In fact, the Tyranny of the Majority principle is why parliamentary democracies work better than direct vote democracies. Endorsing individual rights means endorsing minority rights.
That’s why I can’t jump on the ‘let the states decide’ bandwagon for all controversial issues. A smaller community (a state) is more likely to have a strong majority eager to walk all over minority rights.
The constructionalism, originalism and others isms in arguing about how the Condtitution should be interpreted is kind of superficial. The Founding Fathers did not write a codicil on how the Constituion should be interpreted by future generations. It’s an ongoing argument created by necessity by those future generations, as it should be.
I can’t accept claims that there is only one legitimate approach. It’s much like arguing about the meaning of the Bible. Which parts do we take literally and which do we ‘interpret to accomodate new knowledgel?.
There is no clear cut answer.
Constitutional protections are limited. The 14th ammendment has been interpreted to selectively apply Constitutional protections to the states.
Freedom of speech is protected. However, the 2nd ammendment isn’t. States can limit gun ownership in any way they see fit. A grand jury must be convened for federal charges, but not for state charges.
And the idea that a majority cannot descriminate against a minority is neither inherent nor protected by the Constitution.
A lot of what we believe in is held up by smoke and mirrors. All it takes is someone obeying the law to change that drastically.
“Constitutional protections are limited”
Again, that depends on interpretation.
While some argue that the Bill of Rights and subsequent amendments are the only legitimate protections, others say that rights have to be specifically prohibited by local or federal law in order to be excluded from protection..
The ‘pursuit of happiness’ covers a lot of ground.
I’m not arguing for or against any specifics. My point is that you can approach the whole intent of the Constitution as to rights from different angles.
Neither the Constituion nor the Preamble state that there can be no rights other than those specifically itemized. What you take that to mean is up to you.
We are actually much dependent on precedent in interpretations. Should precedents be iron clad?
Apparently not, according to the current SCOTUS.
And so it continues.
What’s really funny with DLS’ “argument”, aside from it basically admitting that he’s jettisoning strict constructionism when it conflicts with his political ends, is that the majority also admits that finding original intent is nearly impossible for Article 46, because it was ratified before the Maryland Assembly began keeping good records, so there’s virtually no legislative history. So, for the “original intent” of Maryland legislators, we get a long block quote by the distinguished Senator from Indiana in US Congress. Helpful.
the only reason minorities have any protections, whether constitutional or otherwise, is because the majority decides to grant the minorities those protections.
and while you and I agree (wow, agreement?) there ought to be certain things a majority ought not do, it all depends on the majority being willing to forego its majority powers.
given my druthers, if I had to choose between a society where a majority does what it wants and a society in which a minority holds some kind of veto over the majority, I’d pick the former.
Now, having had this discussion, I’m waiting for David to try and rebut my assertion that he cares not the least about majority/minority rights, nor the rule of law, precedent, separation of powers or any other fancy concept, that all that matters to him is getting his way.
Speaking as an old debate hand, the problem with rebutting “assertions” (as opposed to “arguments”) is that the former aren’t warranted, which makes it difficult to address pointedly. Generally, when making a claim, the burden of proof is on the claimant (which is why, e.g., in claiming that the MD Sup. Ct. got it wrong on gay marriage, I wrote a nice long post explaining where and why they got it so wrong, rather than simply whining about how the result is bad and leaving it at that — or, for that matter, saying that the result is good and leaving it at that). Just throwing out unwarranted assertions about the mechanics of my legal philosophy, without explaining what particularly backs them up, makes it difficult to refute — but that’s not my problem.
So, since there is no argument I can address, the best I can do is point to laws that I think would be good, but I’d probably have to strike down unconstitutional (e.g., some gun control statutes, some DC voting rights schemas), and laws I think are bad that I’d have to vote to uphold (e.g., Bush’s tax cuts, laws allowing insider trading, massive farm subsidies/corporate welfare).
You want liberal political ends all the time in place of law, while on the other hand I want real law and rule of law, rather than judges’ or activists’ wishes substituted (and legislative power wrongly arrogated by the judiciary).
Aside from your frequent factual, English, and other errors, which you have demonstrated again here, you also are likely to have committed projection here, given it is you who routinely want and seek what you falsely accuse me of seeking.
Actually, prior to contemporary activists’ efforts, the population here in this country (and for that matter, elsewhere) has always viewed marriage as an arrangement with a man and a women, first and foremost to legitimize child-bearing. (It’s irrelevent that many married couples are childless or adopt children instead.)
* * *
It’s an ongoing argument
Obviously it isn’t. What wasn’t foreseen may have to be the basis of occasional reinterpretation (or more often, clarification), but the Constitution obviously is not “living” in the sense that “dead, outmoded” things (but not the First Amendment, which so many wrongly claim to support their and others’ misbehavior?) may be cast aside or be said now to mean something altogether different. (The correct thing to do is to change the meaning by substituting another intention, by rewriting the law itself — in the legitimate way, through the legislative process.)
DLS,
Your ‘obviously’ assertions really are becoming funny, because they are all ‘obvious’ only if one accepts the assertions that form your premise.
It’s a magical circle way of thinking.
Have fun with it.