The 14th Amendment vs. Plato

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Tom Van Dyke

Tom Van Dyke, businessman, musician, bon vivant and game-show champ (The Joker's Wild, and Win Ben Stein's Money), knows lots of stuff, although not quite everything yet. A past inactive to The American Spectator Online, the late great Reform Club blog, and currently on religion and the American Founding at American Creation, TVD continues to write on matters of both great and small importance from his ranch type style tract house high on a hill above Los Angeles.

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172 Responses

  1. Avatar sonmi451 says:

    There are many things in the Bible that even the most committed believer doesn’t endorse whole-heartedly,

    Some believers are total hypocrites who only slavishly follow parts of the Bible (like the hating gays part) and not all of them, therefore we must never take them seriously whenever they say their opinion and attitude are based on the Bible, but assume those attitude and opinion could be formed through slavish devotion to dead philosophers instead? Got it.Report

    • Avatar Tom Van Dyke in reply to sonmi451 says:

      So if they don’t slavishly follow the Bible and stone their drunk kids, they’re hypocrites? ¬†Or if they come to the same rational or aesthetic conclusions as Plato, they’re “slavishly” following him? ¬†You got ’em coming or going.

      Dunno about the “hate gays” part. ¬†That’s usually a discussion-ender, that not supporting gay marriage amounts to “hate.” DOMA passed¬†342-67 in the House, and 85-14 in the Senate. ¬†That’s the subject here. ¬†Your criticism may apply to some, but far from all with any certainty. ¬†Which is my objection to Judge White’s objection. ¬†He cannot fairly use the rhetoric of a few to dump the judgment of such a huge majority. ¬†It’s unreasonable.

       Report

      • Avatar Kenneth in reply to Tom Van Dyke says:

        99.

        Pull up your pants, the source of your “facts” is showing.Report

        • Avatar James Hanley in reply to Kenneth says:

          Kenneth,

          Respectfully, “99” is only appropriate in response to a comment that lacks any substantive argument..¬† An argument being wrong (in the commenter’s opinion) is a very different matter, because it is still substantive.¬† Tom’s post here emphatically does not deserve a “99,” but I dare say your comment is trending into that territory.Report

    • Avatar Will H. in reply to sonmi451 says:

      Really, I can’t think of a single mainstream denomination that holds “hates gays” as its primary tenet.
      Most of them talk about the divinity of the body of Christ, etc.
      Several denominations allow gay pastors.
      I have two nephews that were baptized by a gay pastor.
      He gave a sermon beforehand.
      I don’t recall him mentioning how everyone in the place should hate his guts.
      Maybe he was just preoccupied by the coming baptism, and overlooked it somehow.
      I don’t know.Report

  2. Avatar wardsmith says:

    District Judge Jeffrey Walker’s opinion

    I’m thinking Freudian slip there. Another Judge named Walker now retired.Report

    • Avatar Tom Van Dyke in reply to wardsmith says:

      Thx, Ward, fixed.  As you see, both judges make an appearance here, and seem to be working off the same page on the key point of the OP, the religious hence irrational nature of the SSM opposition.Report

  3. Avatar mark boggs says:

    suspected they were changing the Constitution to require the abolition of traditional morality

    The words “traditional morality” are doing a great deal more heavy lifting there than they should.¬† Which traditional morality?¬† And whose?¬† Whether you think gay marriage is a civil rights issue or not, there was a time in our not too distant past where miscegenation went against traditional morality.¬† How far back shall we go?¬† And how much “offense” gets re-legislated as actual harm when we do?Report

    • Avatar Tom Van Dyke in reply to mark boggs says:

      Well, Mark, I don’t think “traditional morality” is a mystery: one man one woman, marriage. ¬†The argument is that that definition must re-justify itself to Judge White’s [or eventually the Supreme Court’s] satisfaction everytime somebody sues.

      I point to the Romer v. Evans circus for one reason—you had some pretty damn good scholars, John Finnis and Robbie George against Martha Nussbaum—litigating the fine point that you don’t need a Bible to oppose gay marriage. ¬†Plato’s Laws points the same way.

      Well, that turned into a tremendous waste of time for all involved. ¬†The Romer decision didn’t really hinge on it. ¬†But the specter that religion = irrationality [by definition] remains in the White and Walker decisions. ¬†So that’s what I’m on about.

      So now in the Prop 8 case in California, a complete dolt

      http://en.wikipedia.org/wiki/David_Blankenhorn

      was up there in front of a skeptical Judge Walker making a hash of it. ¬†Yeah, if we keep putting “traditional morality” on trial, and wasting the time of the Finnises and Georges, we’ll end up with the Blankenhorns.

      But making a fool of that fool brings us no closer to honest argument. ¬†Mark, you could argue the case—hating every word of it—better than that moron.

      As for the rest, I can’t stipulate sexual orientation is essentially the same as race. ¬†We need not rehash that one. ¬†If you believe they are essentially the same, as a rights argument, it’s a slam dunk.

      Thx for the courteous reply.Report

      • Avatar greginak in reply to Tom Van Dyke says:

        If you mean “gay marriage” when you say “traditional morality” then just say that. Using “traditional morality” is a far grander phrase and also one that suggests far more then just gay marriage. If you are saying some of us are against “traditional morality” you could easily be interpreted as saying we are against prohibitions against murder or rape or theft, etc. Being specific is usually a good idea and lessens the likelihood of being accused of engaging in hyperbolic insults.

        As a person of Greek descent i feel its my solemn duty to note that the attitude of most ancient Greeks towards gay relations was not exactly the same as we have now.Report

        • Avatar sonmi451 in reply to greginak says:

          ¬†If you are saying some of us are against ‚Äútraditional morality‚ÄĚ you could easily be interpreted as saying we are against prohibitions against murder or rape or theft, etc

          I don’t think that’s what Tom was doing here, but this is usually done¬†on purpose¬†by the people and politicians throwing around that phrase, no? They WANT people to think about more than just marriage, to paint the support for gay marriage as something monstrous.Report

          • Avatar greginak in reply to sonmi451 says:

            I don’t think Tom is doing nor did i say he was. I was noting the use of language which sheds more heat then light.Report

            • Avatar sonmi451 in reply to greginak says:

              Sorry, I wasn’t saying you were saying that. I was just prefacing my statement with that because it seems like any statement that could be interpreted as accusing TVD of anything is considered “piling on” these days. Just wanted to be careful in making my point.¬†My apologies if I came across as accusing you of something you didn’t do ūüôāReport

            • Avatar Will H. in reply to greginak says:

              I agree that bringing “morality” into it isn’t helpful.
              It’s more an issue of institutions, and what constitutes that institution.
              Does the transgendered little boy get to join the Girl Scouts, etc.Report

              • Avatar mark boggs in reply to Will H. says:

                Girl Scouts is an organization.¬† With leaders and such.¬† Marriage is not an organization with a hierarchical leadership.¬† Marriage does not have fund-raisers through cookie sales.¬† It is a legal arrangement between two people.¬† Which is why many people find it so hard to imagine that so many other people are distraught about their desire to have one.¬† It is convenient to make the two institutions similar for the purpose of saying that they each have immutable definitions, thus, marriage is only for certain people, but it’s not really true.Report

          • Avatar Tom Van Dyke in reply to sonmi451 says:

            Thx, Sonmi.  None of us can answer for the jerks who happen to agree with us.  Ugh.

            Which is why I don’t think Judge White can sort through the

            342-67 House

            +85-14 Senate

            427¬†members of Congress who passed DOMA. ¬†And I don’t think it’s a judge’s job, either, which is sort of the point here.

             Report

      • Avatar Kenneth in reply to Tom Van Dyke says:

        According to the Catholics, “traditional morality” is one-man-one-woman-till-death-do-you-part-no-philandering marriage.¬† Likewise for the Baptists, and most* of the other protestant denominations.

        How’s that working out for your multiple-married gods like Rush and Newt, eh?

        According to the Anglicans and another major part of the protestant denominations, of course, they don’t really care about the divorce thing. Marry, split up, whatever. Fish it, kill your wives like Henry the 8th did if your baby-maker is shooting blanks from one side.

        And if we go back before that wack-job little roman cult too poor to afford multiple gods, or sidestep it over to the Buddhists and the Eastern religions, and the Arab/Muslims, and the African tribespeople, and up to the Nords, and have a gander at the Mormons, then “traditional values” are… hey lookit that, plenty of plural marriages all over. Those pesky Israelites, seems all the greatest heroes and patriarchs were at least bigamists if not qualifying for a full harem.

        Oh, and don’t forget the famous Greek man-man loves, and the famous Roman man-man loves, and the Sapphic poetry and traditions, and of course then we can get into discussions of the traditions of warrior tribes who thought the best way to raise up warriors to be strong was to make sure that among other things, they got plenty of man-juice to feast on.

        Hmmm. “Traditional values”? Whose tradition, and why?Report

        • Avatar Will H. in reply to Kenneth says:

          This sort of argument is essentially a red herring.
          Of course, the term ‘traditional’ is not commonly used to refer to all traditions which may have existed at any time throughout all history.
          We do not dig the Pharaohs out of their tombs to worship them.
          Although we still use the word “Thursday,” we need not feel compelled to render obeisance to some pagan deity to do so.
          Traditions evolve over the course of time, and our understanding of what is traditional evolves right along with it.
          For those of us who are not theoretical in substance and form, we have no need to grasp as some oddity of spacio-temporal designation.
          We are here, and we are now.
          Therefore, our understanding of what traditions we are to observe need not be indeterminate and indistinct.Report

          • Avatar Kenneth in reply to Will H. says:

            Really?

            Well let’s count up the faiths represented in the USA, shall we? Note that this list will not REMOTELY be all-inclusive and it’s going to include a few “et ceteras” and “miscellaneous collections”, as it’d take me all day to break down the various lutheran sects, baptist sects, and other various heretics

            Catholic & “Orthodox Protestantism” (Greek Orthodox etc)
            Lutheran
            Baptist
            Anglican/Episcopalian
            “Non-denominational” Christianity
            Judaism
            “Reform” Judaism
            Shi’a Muslim
            Sunni Muslim
            Miscellaneous minor Muslim sects
            Wicca
            Non-Pagan Wicca
            Neo-Paganist
            Spiritualist Pagan
            Asatru
            Shinto
            Buddhist
            Hindu
            Scientology – though hotly debated
            Unitarian Universalist
            Native American religions (numerous)
            Bahaism
            Sikhism
            Taoism
            Druidism
            Zoroastrianism
            Cao Daism
            Santeria
            Rastafarianism
            Druze
            Sant Mat

            I’ll ask you again. Whose “traditional values”?Report

            • Avatar Will H. in reply to Kenneth says:

              The easy way to do it would be to ask an immigrant the moment they arrive on US soil.
              Maybe one of them could explain to you what America is all about.

              You’re so stuck on the idea of separating people into little cliques that you can’t see that we’re more the same than we differ.
              Get over it.Report

          • Avatar Da in reply to Will H. says:

            I agree. Which is why an argument based on tradition is a losing one. The fact is that the word tradition¬†itself¬†is indeterminate. To choose to portray the traditions that you or even a plurality of people in your society cherish as “traditional” is to deny other traditions their proper standing.¬†Which¬†would then lead to the need for clarification (Judeo-Christian tradition), which then leads to the question of why this tradition has precedence over other traditions, the rights of Homosexuals, their full inclusion in society,the recognition of their relationships by the state, etc. Not to beat a dead horse, but I’m positive that slavery was considered to be moral as well as legal according to thousands of years of Western and Judeo-Christian tradition. That fact is not a¬†defense¬†that would override the issues of full dignity and equality under the law that the 14th amendment¬†addresses.Report

            • Avatar Tom Van Dyke in reply to Da says:

              Da, the point about arguing from tradition—which Judge White seeks to abolish—is not that tradition is inherently good, it’s only that it has worked so far. ¬†This does not mean that tradition—“convention”—cannot be altered or abolished, but there is grave danger in screwing with a system as complex as a society. ¬†What may seem like a good change may turn out not to be.

              So I think Judge White misses the point of tradition here.Report

              • Avatar greginak in reply to Tom Van Dyke says:

                But has tradition worked before. Sure it certainly worked for some people, but just because there have been traditions doesn’t mean they worked for everybody or were unjust to some. That is sort of the point of, in this case, pushing for gay marriage. Some people have been poorly served by tradition so they are trying to fix that.Report

              • Avatar Will H. in reply to greginak says:

                I don’t think they have been so poorly served until recently.
                Otherwise, there would have been a big push for gay marriage back with the sexual revolution and the 60’s.
                At issue is what happened over the past 50 years that would make gays more poorly served at present.
                I suspect that will be a bit more difficult to answer, and a lot more uncomfortable to come to terms with.Report

              • Avatar mark boggs in reply to Will H. says:

                This is going to sound glib, but 40-50 years ago, was it really OK to just come out and proclaim your homosexuality without repercussion?  Nevermind then asking to marry the person you love of the same gender?Report

              • Avatar Will H. in reply to mark boggs says:

                Is it true that people somehow mistook David Bowie for being straight at some point?Report

              • Avatar mark boggs in reply to mark boggs says:

                Is it true that David Bowie is an openly gay man who in 1970 was seeking a contractual arrangement with his true, same gender love?¬† No.¬† He’s been married twice…to women.¬† I know there is the rumor about him and Jagger, but even if that were true and Bowie had some different sexual inclinations, how is that the same thing as two people wanting to get married?¬† You’re not conflating the two, are you?Report

              • Avatar Murali in reply to mark boggs says:

                Not ot pick nits, but david bowie is if bisexual at all, only to a small degree. According to wikipdia, most of the ambiguity comes from wanting to be transgressive. The other part is just 70s and 80s culture. (Seriously have you seen the clothes people used to wear in the 70s and 80s?)Report

              • Avatar BSK in reply to Will H. says:

                What are the social, legal, political, amd financial benefits to martiage that have been denied to gays over thepast 50 years?Report

              • Avatar Will H. in reply to BSK says:

                At a preliminary glance, I would think that a lot of it has to do with adjudication of probate matters.
                And I think a lot of that might have to do with corporate culture permeating through other social institutions.
                Could be other factors at play.Report

  4. Avatar Tod Kelly says:

    Is it necessary to go down a road which questions morality?  Is there nothing to be gained from looking at the intended result of a law, and if that intent is to establish in spirit things that can be roughly argued do not break the letter of the rights afforded us?

    If, say, you have a city council that passes a law that says people with a certain style of hair cannot hold public office, can the courts not take into evidence recorded testimony from the councilpersons that the reason they enacted the law was to make sure blacks could not hold office?

    I mentioned this on the post where you introduced this idea (and you are of course pardoned for not seeing it), but the whole Dover school board case was ruled the way it was because the school board was on record in their own minutes saying the reason they were introducing Intelligent Design was as a method to evangelize Christianity to high school students.  Is a judge not allowed to look at such things, and if not, is the law not a joke?Report

    • Avatar Tom Van Dyke in reply to Tod Kelly says:

      RTod, the plots and agenda of the [creationist] Dover school board are immaterial, in my view, just as if a similar conspiracy were uncovered for a gay agenda school board.

      Hey, we got Gay History in California now. ¬†Surely somebody talked to somebody else, let’s be real. ¬†This just didn’t rise up out of nowhere, unbidden. ¬†Let’s not pretend we all just fell off some turnip truck in Fresno.

      And if democratically enacted, then we shall have Gay History.  And it was, and we do.

      http://www.huffingtonpost.com/2011/07/14/california-gay-history-law-jerry-brown_n_898745.html

      As for Intelligent Design, I pass.

      http://edwardfeser.blogspot.com/2010/04/intelligent-design-theory-and-mechanism.html

      I’d rather pick up the brief for Gay History. ¬†Gay History certainly exists, something I will not say for Irreducible Complexity hence Intelligent Design. ¬†Junky riff.Report

      • Avatar Tod Kelly in reply to Tom Van Dyke says:

        “And if democratically enacted, then we shall have Gay History”

        I don’t know where you’re from, son. ¬†But ’round here we don’t take kindly to History dating other dudes.Report

      • Avatar Alan Scott in reply to Tom Van Dyke says:

        Can I just say, as a gay man, that I’m not a huge fan of the ‘gay history’ bill. ¬†The law oddly restricts itself to the domain of “Americans” and the subject of “History”, and in doing so manages to sidestep just about every unsung gay hero that such a law might conceivably be designed to highlight.

        I think the schoolchildren of america would be better served by learning about Tchaikovsky, Turing, and Keynes than the inevitable result of going over Harvey Milk again and again and again.

        I suppose James Baldwin qualifies as an american who can be covered in history class, but I somehow doubt we’ll ever be talking about MLK when it comes to the civil rights struggle (unless we’re talking about Malcom X as though he were King’s magneto-like¬†villain).Report

  5. Avatar Burt Likko says:

    Congress could have considered Plato in passing DOMA, it’s true, but as a matter of fact, it seems fairly clear that any consideration of what Plato had to say about issues of morality and community and good government was, at best, indirect. If it is never appropriate to consider direct evidence of Congressional intent in attempting to determine the purpose of a law, then it is at least equally inappropriate to consider things Congress <i>might have</i> intended.

    As a judge, you could be an ultra-strict textualist about it and just look at the text of DOMA. That would let you bypass all of the discussion of the floor debate because all that matters is the text of the law. That would redact out the portion of Judge White’s opinion which you damn as anti-morality.

    But even so, you’d still have to get to at least rational basis scrutiny — and Judge White found all four proffered objectives, and three more objectives he thought up on his own, wanting under even that standard. If you want to critique him on that basis, the approach would be to look at at least one of those seven critiques and show where he got it wrong. (The weakest point seems to be “uniformity of marital recognition across state lines,” IMO — although I think that ultimately fails too.)Report

    • Avatar Tom Van Dyke in reply to Burt Likko says:

      Mr. Likko, caution–prudence—itself meets the “rational basis” threshold IMO: we don’t know what gay marriage’s effect will be if we mandate it nationally now. ¬†A judge saying DOMA is irrational is substituting his guess for the duly elected legislature’s.

      Hey, he could be right. ¬†I’m all federalist on this, let the states experiment. ¬†I was meaning to ask you whether a state [or some of them] could create same-sex marriage and then have the federal government bound by it, which is what’s happening here. ¬†This isn’t federalism by my understanding, via the supremacy clause that Wash DC [DOMA in this case] has primacy. ¬†But if I’m wrong on this point of law, then mebbe this flies.

      But I’m not quite arguing on positive law as much as the philosophy and spirit of the laws and constitutionalism. ¬†My primary objection lies in Judge White peeking into the heads of the large Congressional majority that passed DOMA and Judge Walker adjudging the mind of the electorate that approved California’s Prop 8.

      I’m not good with judges second-guessing the motivations of duly constituted authorities, Burt, esp the overwhelming majority of Congress that passed DOMA. Why a judge’s reasoning should not be subject to scrutiny, heightened or strict or otherwise, I do not know.

      Because I bet we could do a more truthful job getting into a single Judge White’s head than he did on the

      342-67 House,

      +85-14 Senate

      427 members of Congress who passed DOMA

      or Judge Walker’s assessment of the minds of 7 [!] million voters who approved California’s Proposition 8. ¬†Seven million? ¬†To put the motivations of 7 million voters on trial? ¬†Esp via that Blankenhorn guy? ¬† That’s a bigtime travesty, Burt, and what I’m on about.

      Thx for the straightup reply, mate.  Will do me best to hold up my end.

       

       Report

      • Avatar North in reply to Tom Van Dyke says:

        Tom, I’m curious as to whether you’re aware that DOMA is a very blatantly non-federalist piece of legislation? It forbids one state from forcing other states to recognize SSM which I agree is a federalist move but it also sets Federal policy completely against SSM which is a very much non-federalist inposition on SSM recognizing states.

        I’d like to ask again if you have any thoughts on how, repeatedly now, the only evidence SSM opponents have been able to submit in these various suits that supports their position and also meets the requiremetns of court evidence and testimony are vague appeals to tradition? If I were opposed to SSM myself I would think this was very disturbing. Is this a case of lack of passion on the part of the anti-SSM sides of these various cases, some kind of special discrimination or bias in the old rules of evidence and testimony or some deep weakness in the foundations of their position?Report

        • Avatar Tom Van Dyke in reply to North says:

          I dunno if that understanding of federalism works, Mr. North, which is why I asked Attorney Likko. ¬†It seems the Golinski case obliges the federal gov’t to recognize a marriage that is valid in only one state. ¬†I didn’t think an individual state can oblige the federal government to do anything.Report

          • Avatar North in reply to Tom Van Dyke says:

            Based on the feedback Tom I’d say that the current consensus is that the portion of DOMA that says that the states can’t compell other states is federalist and the federal anti-ssm portion of DOMA is anti-federalist. So, DOMA supporters are, then, anti-federalist.Report

      • Assuming arguendo that cultural caution is inherently a legitimate governmental objective, at what point does the accumulation of data mitigate against its pursuit?¬†When Congress passed DOMA, SSM was a new cultural phenomenon in western industrial society; in 2012, we can look north of the 49th parallel and see what its seven years’ worth of its effects have been on Canadian culture, government, or morality (by all available measures, zero). At some point, enough data is generated from laboratories in individual states or other nations that the call to caution and prudence stops being a legitimate objective and starts being a tissue for obstructionism.

        What’s more pernicious, though, is that creating a law for the purpose of a prudential hold on the status quo has an inertial effect to make the status quo harder to change down the road. When we say once, “Hey, we should stop and think carefully about doing this, so let’s make a law that holds things the way they are now,” then in five years it’s easy for someone to step forward and offer an argument in favor of the status quo that “Hey, the majority voted to keep things the way they are,” or “The way things are is the law.” Understandable cultural prudence then becomes unreasonable cultural ossification.

        While it’s not an issue with DOMA and Judge White’s opinion, a similar ossification-in-service-of-prudence dynamic is in play — one suspects quite overtly — in calls for Constitutional amendments prohibiting or restricting same-sex marriage.Report

        • Avatar mark boggs in reply to Burt Likko says:

          stops being a legitimate objective and starts being a tissue for obstructionism.

          And this is where I would argue we are.¬† The continued beckoning towards tradition and morality and institutions is wearing thin under the continued acceptance by states and countries for SSM with no real evidence of harm.¬† And this is where my cynicism about motives kick in and I ask how much of the opposition has anything to do with tradition or morality or institutions and how much has to do with¬†being repulsed by “gay sex.”Report

          • Avatar BSK in reply to mark boggs says:

            Tradition for tradition’s sake is silly. If the way things were done previously is a verifiably better way to do them than newer methods, than pursue traditional methods. If the only argument in favor of a traditional, less effective method is that is the way it is only done, you are holding tradition above doing the right thing. It is becoming increasingy clear that promoting marriage equality is the right thing to do.Report

          • Avatar Tom Van Dyke in reply to mark boggs says:

            The example of Plato and Romer v. Evans was not that Plato was necessarily right, only that one can arrive at the same place via reason as religion. ¬†One can just as easily use the Dalai Lama or Bertrand Russell to illustrate the point [Tibetan Buddhism’s sexual ethics being non-scriptural, Russell being an atheist.]Report

        • Avatar Tom Van Dyke in reply to Burt Likko says:

          Burt, I think DOMA was and is always subject to easy repeal, just as Don’t Ask Don’t Tell was. ¬†Legislative holding actions at best, against the judicial branch.

          As for the evidence and data of SSM’s desirability, it’s fine for legislative argument [let’s do this!] but social science is not yet our ruler—at least another place where I inquire when we amended the Constitution to make social science [and hence social scientists] our rulers.

          And is this evidence slam dunk? Is it unreasonable or irrational to say it is not?

           Report

          • Avatar Burt Likko in reply to Tom Van Dyke says:

            As I indicated below, I think the repeal is not so easy; once something is made law, it acquires a certain political inertia that would not be present if Congress had simply remained silent. But to be sure, DOMA is legislation and not a judicial doctrine nor part of the Constitution (although there are those who would see it made so). So repeal is a possibility.

            The question is really whether DOMA implicates a fundamental right, and if so, why Congress believes it can implicate that right in the first place. If that is correct, then it must do so to advance a compelling (or at least a legitimate) governmental interest. That’s why Congressional intent is important to the analysis.Report

      • Avatar Burt Likko in reply to Tom Van Dyke says:

        It occurs to me that I haven’t directly answered your federalism question. The answer is unclear. The Full Faith and Credit Clause is the controlling part of the Constitution here, and there are two reasonable interpretations of it and precious little jurisprudence to help us out.

        One interpretation is that the FFCC was intended to govern legal relations among the several states, to provide that one cannot dodge enforcement of a contract by moving to a different state that has different laws. So, let’s say I go to Nevada, where casino gambling is legal, and run up a marker at Caesar’s Palace for $10,000. Then I come back home to California, where casino gambling is not legal (except for where it is). Under this vision of the FFCC, Caesar’s can in fact enforce its debt against me in California despite the act underlying the debt not being legal here. I tend to believe this version of the FFCC, myself, because I find it offensive that one should be able to incur a debt in one state and dodge enforcement in another.

        This version of events does have the result of¬†compelling states to honor one anothers’ legal determinations. Thus, if Mrs. Likko and I are married for purposes of Nevada law, we are married for purposes of California law, too. As to vertical rather than horizontal relations, this version of the FFCC provides that the Federal government is bound by determinations of state law in the applicable state. Thus, if Mrs. Likko and I are married for purposes of California law, we are married for purposes of Federal law, too.

        Another interpretation of the FFCC is that it authorizes Congress to create rules to handle interstate transactions precisely because different states may have different laws. In other words, Congress has the power, if it chooses to exercise it, to create a rule establishing which legal decisions do transcend state law. In the meantime, Congress can decide for itself which state-level legal determinations are binding on the Federal government. For instance, under the Protecting Tenants At Foreclosure Act of 2009, as amended, Congress has limited the ability of property owners in certain situations to evict their tenants, even if the new owner of a property purchased out of foreclosure had no idea he was buying rental property. The state-law determination of a bona fide tenancy controls the exercise of a state law right, because Congress got involved in that transaction to address what it identified as a Federal concern.

        That’s the interpretation that’s been offered in some quarters to justify DOMA: Congress can say, hey, some states honor SSM and others don’t; not only can we decide for ourselves if the Feds will honor SSM but if it’s a good idea, we can make a rule that says whether or not one state’s legal determination of marriage is binding on another. This was, precisely, one of the purposes of DOMA offered in the Golinski case and rejected by Judge White — the objective of uniformity in the law. This is also the place where I think the defenders of DOMA will have the strongest grounds upon which to base their imminent appeal to the Ninth Circuit.Report

        • Avatar Tom Van Dyke in reply to Burt Likko says:

          Ah, thx, counselor. ¬†Not to analogize them, because that’s a hot button—but let’s pretend SSM doesn’t exist for a second: ¬†Were Utah to legalize polygamy tomorrow, would that require the federal gov’t to pay wives’ benefits to more than one wife? ¬†The nature of my question re Golinski was precisely to that specific, that the actions of a state could bind the federal gov’t. My understanding was that a state could not bind the federal gov’t.Report

          • Avatar Burt Likko in reply to Tom Van Dyke says:

            But it kind of can. Take a more prosaic example even than polygamy — take a traditional, monogamous, opposite-sex marriage. If you’re married for purposes of Indiana law, then you’re married for purposes of Federal law, too.

            I’m uncomfortable with Utah having been told to give up honoring legal polygamy as a condition of admission to the Union as a state, at least if that particular¬†legend is based in overt reality.Report

            • Avatar Tom Van Dyke in reply to Burt Likko says:

              Burt, marriage had those conventions before ratification of the Constitution, so the Indiana took no action¬†[like redefining marriage] that bound the federal government. ¬†That’s the sort of thing I’m referring to here. ¬†Marriage laws were “grandfathered” in, so they’re not helpful in addressing the question. ¬†Can you think of an action¬†a state could take today along those lines that would bind the federal gov’t? ¬†It’s an open question, I don’t know.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                What conventions, Tom? The federal government defined or redefined marriage the moment it recognized its status. Traditional marriage was not defined as a relationship by which people confer health insurance benefits on one another. When the government decided who did and did not qualified as married for intents of sharing insurance, they redefined marriage.Report

              • Avatar Tom Van Dyke in reply to BSK says:

                Well, BSK, the question is whether the state of California, in legalizing SSM, can bind the federal gov’t into providing healthcare benefits for her spouse. ¬†I’m simply asking a federalism question, quite at arm’s length, if states can bind the federal gov’t like that.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                Understood.  But, as Burt pointed out, states do that all the time.  States set their own age of consent law, which the federal government must accept.  States have different laws for cousin marriage law.  Again, all are accepted by the federal government.

                The problem is the viewpoint that SSM is different than OSM. ¬†DOMA sought to limit what the states can consider marriage, for all intents and purposes. ¬†If Washington says that straights and gays get the same marriage license… that there is no SSM and OSM… only marriage, under DOMA, the federal government would essentially be telling Washington that such definitions were invalid.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                My larger point is that the federal government has essentially said, “No matter how you define marriage, we’ll accept it.” ¬†DOMA then said, “Not so fast. If you define it in this specific way, we’re not going to accept that.” ¬†DOMA attempted to redefine the federal definition of marriage and, in doing so, limit how the states can define it.Report

              • Avatar Tom Van Dyke in reply to BSK says:

                My larger point is that the federal government has essentially said, ‚ÄúNo matter how you define marriage, we‚Äôll accept it.‚ÄĚ

                If that’s true, I suppose that answers that answers the federalism question. ¬†It was a side question of course, but I’m glad we touched on it.Report

              • Avatar BSK in reply to BSK says:

                Burt can probably weigh in with more info, but that is my non-lawyer understanding.Report

              • Avatar Burt Likko in reply to BSK says:

                My larger point is that the federal government has essentially said, ‚ÄúNo matter how you define marriage, we‚Äôll accept it.‚ÄĚ DOMA then said, ‚ÄúNot so fast. If you define it in this specific way, we‚Äôre not going to accept that.‚ÄĚ DOMA attempted to redefine the federal definition of marriage and, in doing so, limit how the states can define it.

                This is a correct assessment of the situation. I edited out of my earlier comment a remark about how states recognize marriages according to different rules, and the specific variance in rules I was going to mention was consanguinuity. I should have left that in.

                Let’s say Indiana allows people who are second cousins or further apart on family trees to marry, and Pennsylvania allows first cousins to marry.¬†(I’ve no idea if these specifics are right. Just work with me here.) Mildred and Mitchell from Muncie are first cousins who want to marry, so they pack up the whole family and go to¬†a lovely ceremony in beautiful Scranton, and get a Pennsylvania marriage license. No question that for purposes of Pennsylvania law, they’re married. But then they go back home to Muncie.

                Are they married for purposes of Indiana law? Are they married for purposes of Federal law? It matters when they fill out their state and federal income tax forms. It matters when they file for bankruptcy jointly. It matters when they apply for Social Security benefits. As I understand it, at minimum, the Pennsylvania license allows Mildred and Mitchell to file Federal tax returns and do all of those other things implicating Federal law as “married” no matter what Indiana has to say about it.

                As I interpret the Full Faith and Credit Clause (see below in this thread) Indiana is similarly bound to recognize that Mildred and Mitchell are married, even though Indiana would not have issued a license to them on its own. While DOMA does not on its terms give Indiana an “out,” the extension of DOMA’s logic under its interpretation of FFCC would allow Indiana to deny marital benefits under state law to the couple.Report

              • Avatar BSK in reply to BSK says:

                Thanks, Burt. ¬†That last part is crucial. ¬†It’d be one thing if an act like DOMA sought to say that states were not bound by each other’s marriage contracts. ¬†But they specifically limit the ability of states to deny another state’s marriage to same sex weddings.Report

              • Avatar Alan Scott in reply to Tom Van Dyke says:

                If memory serves, there’s a SCOTUS case where the federal government was required to accept a state’s definition of marriage for the purpose of spousal testimony privileges.Report

              • Avatar Jaybird in reply to Tom Van Dyke says:

                The Pill did a hell of a lot more to redefine marriage than the government could *DREAM* of doing.

                That said, “No Fault Divorce” was something the government helped implement that could be categorized as government redefinition of marriage.

                Gay marriage is just an inevitable outcome of the above, though. It’s a signal that the definition *HAS* changed, it’s not an attempt to change it.Report

              • Avatar Burt Likko in reply to Tom Van Dyke says:

                Can you think of an action a state could take today along those lines that would bind the federal gov’t?

                Felony convictions. Let us suppose Freddy the Fraudster is convicted of Fraud by the state of Florida.

                Freddie is now disenfranchised according to Florida state law as a result of the felony conviction. The Federal government cannot step in and say, “Well, Florida, you can deny this person the right to vote for Governor, but you have to let him at least vote for President, his Senator, and his Representative in Congress.” The Constitution leaves the regulation of elections (including eligibility to vote) to the states; changing that rule requires an amendment to the Constitution, as has happened more frequently than with any other issue in Constitutional history; if the Feds want Freddie to vote, that takes another Constitutional amendment restricting Florida’s plenary power to withdraw his franchise.

                Freddie’s felony conviction also means with nearly 100% certainty that he gets hit with a criminal restitution order by operation of state law in addition to other punishments. That state law restitution order is binding on the Feds — if Freddie gets a tax refund, for instance, Florida can garnish it. If Freddie files bankruptcy, he can’t discharge the state law restitution order. (Admittedly, this last order could be changed by Congressional action.) So Florida has just interfered with the bankruptcy process, and the dispursal of federal tax money. The feds don’t get to say boo about any of it.Report

              • Avatar Tom Van Dyke in reply to Burt Likko says:

                So if Utah institutes polygamy, the feds have to pay benefits to Wife #2?

                I’m trying to follow yr bankruptcy example, but it seems that the¬†state law restitution order is binding on the Feds by statute. [That could be repealed.] ¬†Am I misunderstanding? ¬†Couldn’t the feds pass a law that takes the money first and tells Florida to go scratch?

                And of course, there is still question #1, above, which seems more germane.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                TVD-

                I don’t know what existing law would say, but you could avoid potential abuse of the system by saying a specified sum is paid out to be shared amongst all spouses. ¬†If you have 9 wives, they each get 1/9th. ¬†If you have 1, she gets the whole shebang.Report

              • Avatar Burt Likko in reply to Tom Van Dyke says:

                The voting example is probably the most powerful here. State conviction abrogates Federal right.

                I conceded that bankrutpcy laws are subject to amendment by statute.

                Open question if a state’s recognition of a polygamous marriage would compel Federal recognition. A moot point in practice as no state is considering adopting polygamy and there is no cultural outcry for it. In the future, who knows.Report

              • Avatar DensityDuck in reply to Burt Likko says:

                “A moot point in practice as no state is considering adopting polygamy and there is no cultural outcry for it.”

                And back in the day of Loving v. Virginia, the concept of homosexual marriage was a moot point in practice as no state was considering, etcetera.Report

      • Avatar Jeff in reply to Tom Van Dyke says:

        we don’t know what gay marriage’s effect will be if we mandate it nationally now.

        Oh, please. We do so. 10 countries and 6 states recognize same-sex marriage and, to date, not one has started to worship Baal or perform child sacrifice or any other stupid thing — not one has found a single problem with hetero- marriage since they saw the light.

        “Traditional morality” held slaves, raped wives, enslaved children. Fish “traditional morality”!Report

    • Avatar Kenneth in reply to Burt Likko says:

      The meanderings of Plato are a couple thousand years in the past.

      The meanderings and spoutings of a bunch of bigoted cultists who happened to occupy seats in the august body of the US House of Representatives and US House of the Senate were – well I’ll be, it was right before they voted Aye, while they were screaming about “an orchestrated assault on traditional heterosexual marriage” and so on and so forth.

      Which is more relevant? It seems that nowhere in the congressional record did even ONE of the representatives mention Plato. And it seems that despite TVD’s dishonest blitherings and hemming and hawing, the argument about the Romer v Evans mentioning of Plato is about two people who argue about the translation of a thousands-years-old manuscript, which is quite literally Greek to everybody, that depending on which thousand-years-old colloquial meaning you apply to a particular word could mean anything from “these people who have orgies and have sex with others of the same sex are sinners and evil” to “hey they like to have a good time and they’re into physical pleasure and not shy about showing it.”

      And of course in that context, we need to remember that the Greeks, and later the Romans, had a thing for certain deities like Bacchus and Dionysus and for holding wildly inebriating celebrations on their particular feastdays, after which inebriation other things would invariably happen.

      Once again: TVD, pull your pants up, the source of your “facts” is showing.Report

      • Avatar Burt Likko in reply to Kenneth says:

        The meanderings of Plato are a couple thousand years in the past.

        The meanderings and spoutings of a bunch of bigoted cultists who happened to occupy seats in the august body of the US House of Representatives and US House of the Senate were ‚Äď well I‚Äôll be, it was right before they voted Aye, while they were screaming about ‚Äúan orchestrated assault on traditional heterosexual marriage‚ÄĚ and so on and so forth.

        Which is more relevant? It seems that nowhere in the congressional record did even ONE of the representatives mention Plato. And it seems that despite TVD‚Äôs dishonest blitherings and hemming and hawing, the argument about the Romer v Evans mentioning of Plato is about two people who argue about the translation of a thousands-years-old manuscript, which is quite literally Greek to everybody, that depending on which thousand-years-old colloquial meaning you apply to a particular word could mean anything from ‚Äúthese people who have orgies and have sex with others of the same sex are sinners and evil‚ÄĚ to ‚Äúhey they like to have a good time and they‚Äôre into physical pleasure and not shy about showing it.‚ÄĚ

        And of course in that context, we need to remember that the Greeks, and later the Romans, had a thing for certain deities like Bacchus and Dionysus and for holding wildly inebriating celebrations on their particular feastdays, after which inebriation other things would invariably happen.

        Once again: TVD, pull your pants up, the source of your ‚Äúfacts‚ÄĚ is showing.

        Kenneth, would you please tell me what substantive content was added by the 22 words I deleted from your comment in the quote above?Report

        • Avatar North in reply to Burt Likko says:

          Kenneth, if I might add a little advice to go along with Burt’s¬†question:

          I’ve debated TVD occasionally and watched him and his conservative cohorts debated around these parts for a few years now. In many of these occasions I‚Äôve watched their opponents get very indignant and heated, much as you have, in their interactions. I would advise (as a fellow liberal mind) that you should try to remember that this kind of reaction is exactly the kind of response TVD flourishes on. It reinforced his narrative that conservatives at the League are a besieged and persecuted minority; that Liberals are emotional unpleasant fulminators and that name calling is the best they can do against the iron logic of conservative positions. Note also that when you present your arguments in this particular tone is allows TVD (or anyone you debate) to sigh disdainfully at your tone and ignore the substance of your assertions. Your noise, in essence, is damaging your signal. You‚Äôre hurting your own (and my) position.

           If you would consider Tom’s icon please note how his magnificent sunglasses virtually glint with glee when you submit in this kind of tone. Rather, I would advise, if you want to keep your own blood pressure at a tolerable level and also get on well here at the League’s commentariate community I strongly encourage you to try to be temperate and mildly good humored despite how much something you may read may annoy you. It will serve you very well, I swear.

          Again this is just my humble suggestion and is offered in the best of faith. I really do want you to succeed and enjoy yourself here if you choose to stay around the digs.Report

          • Avatar Tom Van Dyke in reply to North says:

            You injure me, Mr. North.  This sort of thing brings me no joy atall.  And I had hoped you & I had come to just that understanding.  Dang.Report

            • Avatar North in reply to Tom Van Dyke says:

              My deepest apologies Tom; I didn’t mean to wound you.

              I have always assumed that the subtle digs and pointed asides in your distinctive writing style are designed as metaphorical fishhooks to ensnare those who are easily enraged and inflamed by them. To be frank I’ve never seen any other reason that you would include them in what you write.Report

  6. Avatar b-psycho says:

    Tom, I provided the following proposal for ending the marriage-as-government-endorsement issue once and for all in the other thread about this. Was curious your thoughts on it:

    Marriage was not always a government issue. The current status of it as something having anything to do with the State was a deliberate choice somewhere along the line. What we now have as a result is a muddle, contracts and religion in a blender, creating conflict.

    If it were entirely my call, this connection would simply be severed. Government would completely exit the business of backing or rejecting relationships at all. You want to combine assets, call a lawyer; you want a religious ceremony, go to church. Problem solved.

    Like I’ve pointed out before, cultural conflict escalates when government is accepted as a tool for expressing preferences.Report

    • Avatar Tom Van Dyke in reply to b-psycho says:

      Mr. Psycho, your comment is exactly what I’d like for us to discuss some day: the nature of marriage and the state’s interest in it, if any. ¬†As you can see, my dance card fills up quickly these days. ¬†With this “Plato” post, I’m going to attempt to write more rather than less to explain my thinking, and address the concerns of persons of good will first and foremost.

      Which would be yourself at this moment.

      Israel, a land of many religions, does it this way. ¬†In the United States, the government’s only interest in sexual relations is the children they may generate. I don’t know what Israel does about its fatherless children. ¬†In the US, we try to make the impregnator financially and morally responsible for the actions of his dick.

      The moral, well, forget that. ¬†We don’t do morality anymore. ¬†Financially, well, I love it when the District Attorney starts confiscating the cars of deadbeat dads, but these passions are usually of the passing sort, some hotdog trolling the women’s vote.

      If it were entirely my call, this connection would simply be severed. Government would completely exit the business of backing or rejecting relationships at all. You want to combine assets, call a lawyer; you want a religious ceremony, go to church. Problem solved.

      Mostly, I’m entirely there, Mr. Psycho. ¬†The state has no compelling interest in “relationships,” sexual or otherwise.

      Except the kind of relationship that makes babies, putting the you-know-what in the you-know-what and out comes a you-know-what. ¬†That’s just socio-biological fact. ¬† The argument gets inverted: it’s not about “banning,” it’s that the state has no compelling interest in creating gay marriage, or any other than the baby-making kind.

      [At his juncture, I think I’d rather pick up the polygamy brief than the SSM one, how bout you?]

      Hey, if the state wants to create gay marriage, that’s cool, the more the merrier so they say. ¬†This is a democracy, a republic. ¬†We can do whatever we want. ¬†But declining to create gay marriage is not “banning.” ¬†By yr own argument, b-psych, there should be no legal barrier [is there?] to combining assets, male or female or both. ¬†Hopefully, hospitals have fixed that BS about banning lovers from visiting, male or female or both.

      “Government out of the marriage business” is one I hear a lot, esp in libertarian circles. ¬†At the present rate of decline, pretty soon the government isn’t going to have to worry about the “marriage business” atall, eh?Report

      • Avatar b-psycho in reply to Tom Van Dyke says:

        I did not know anybody already did it that way, and never would’ve expected of all nations the one would be Israel.

        The child support thing I can understand, at least within the considerations of the welfare state as it exists.¬† Kids cost money, and we’d rather the people who made them pay for them rather than us, so it is what it is.¬† Ideally people would use contraception and/or pick different holes to put it in if they were to insist on sex acts with people they didn’t want kids with, but such rational thought tends to go poof with passions. Hell, even with contraception sometimes things just fail.

        The argument gets inverted: it‚Äôs not about ‚Äúbanning,‚ÄĚ it‚Äôs that the state has no compelling interest in creating gay marriage, or any other than the baby-making kind.

        Say hypothetically there were a significant amount of couples who, though capable of it, had as close to absolutely no intention of having children as one could get. Would this suggest the state would have to see their marriages as invalid also?

        [At his juncture, I think I’d rather pick up the polygamy brief than the SSM one, how bout you?]

        Honestly, provided all are consenting adults I’d see no problem with polygamy or the opposite either. It puzzles me why anyone would want such an arrangement these days, but that doesn’t mean I have a right to block them even if I wanted to. They’re not hurting me.

        By yr own argument, b-psych, there should be no legal barrier [is there?] to combining assets, male or female or both. Hopefully, hospitals have fixed that BS about banning lovers from visiting, male or female or both.

        Exactly. You should be able to have visit you whoever the hell you want.

        ‚ÄúGovernment out of the marriage business‚ÄĚ is one I hear a lot, esp in libertarian circles. At the present rate of decline, pretty soon the government isn‚Äôt going to have to worry about the ‚Äúmarriage business‚ÄĚ atall, eh?

        When it comes to marriage-as-cultural-institution — or culture in general, really — my view is if it needs government protection then it’s by definition being rejected.¬† Bailing out a cultural trait strikes me as even closer to whizzing up a rope than the business world version.Report

      • Avatar North in reply to Tom Van Dyke says:

        Hopefully, hospitals have fixed that BS about banning lovers from visiting, male or female or both.

        Tom,¬†I’d note that at this time, with regards to the practical questions of matters between SSM partners like hospital visitation and many other issues like it including asset ownership and funerary rights it is important to keep in mind that no these issues have not been resolved, there continue to be compounding and serious problems. The current preventative options for avoiding these issues continue to be complicated, expensive and at great danged of being overturned or delayed in courts and that the anti-ssm side of this debate continues to make absolutely no positive suggestions with regards to any of these problems. Your own, well meaning expression of hope that these problems are fixed puts you to the left of pretty much every policy maker or advocate who is opposed to SSM in this country.

        I’m of the opinion that it is this fact; that current policy regarding SSM is actively doing empirically measurable harm to same sex couples (and their children!) while no one has so far been able to propose or demonstrate any empirically measurable harm that has been cause or will be caused by SSM that is one of the drivers of how quickly public opinion is crumbling out from beneath the feet of SSM opponents.

        As an aside, though, I applaud you accurately placing the polygamy issue (where it belongs) in an entirely separate brief from the SSM issue.Report

        • Avatar Tom Van Dyke in reply to North says:

          Mr. North, it’s been my impression and opinion that civil unions were to rectify those things, and that civil unions have not had the resistance that full-on SSM has.Report

          • Avatar North in reply to Tom Van Dyke says:

            I would humbly respond that you have been playing scant attention to the matter then. Consider Wisconsin, for instance,  where a civil register of same sex couples (in essence about the weakest and most toothless form of civil unions) has been challenged and assaulted by SSM opponents (and where the current conservative administration has declined to defend it).

            We have seen this patterns consistantly. When there is no movement to SSM then civil unions are resistent; when there is no movement to civil unions then any form of government nod to same sex couples is resisted. It is no wonder that SSM advocates aim for marriage itself; if you’re going to have a fight on your hands no matter what then then you might as well reach for the whole enchilada.Report

            • Avatar Tom Van Dyke in reply to North says:

              Seems a valid strategy, Mr. North. ¬†We’ll see how it works in those benighted corners of the planet. ¬†However, surely there are those who disagree with the strategy, the incrementalists, who feel half-a-loaf is more immediately achievable.Report

              • Avatar mark boggs in reply to Tom Van Dyke says:

                who feel half-a-loaf is more immediately achievable.

                Which would be fine if the resistance were half a loaf as strong.¬† But it isn’t, which begs North’s point.¬† This is bigger than the marriage issue for most of the SSM opponents.Report

              • Avatar Alan Scott in reply to Tom Van Dyke says:

                In practice, the half a loaf is even more achievable when you ask for the whole thing.Report

              • Avatar North in reply to Tom Van Dyke says:

                Mark hit the nail on the head Tom. since asking for equal hospital visitation rules results in X resistance from conservatives and asking for civil unions also results in X resistance from conservatives and asking for full on marriarge results in X resistance from conservatives then ceterus parabus aiming for the largest return is the only sensible path.Report

              • Avatar Tom Van Dyke in reply to North says:

                Mr. North, I won’t presume to advise on strategy. ¬†Alan Scott is wry and apt here:

                In practice, the half a loaf is even more achievable when you ask for the whole thing.

                I do hope that stupid barriers like hospital visitation are resolved somehow and post haste. ¬†I don’t know how putting property in joint tenancy etc., works, admittedly, with or without new laws. ¬†If it’s of any useful context between us, my late younger brother was gay. ¬†Not only did we love each other, but we got along famously. ¬†He sang Frank and I sang Riff Raff.

                We’d fight over who got to be Brad, this I admit.

                 

                 Report

              • Avatar North in reply to Tom Van Dyke says:

                I’m sorry for your loss, it sounds like you got along well.

                I have a joint tenancy in common myself with my husband (married in Canada). That one wasn’t immensly hard but there are tax implications and some other legal concerns that would fall on us if the other perished.

                I also have an inlaw who is almost cartoonish in her animus against me (his Mother and her fire and brimstone preacher friend) has promised to go after anything we have if he gets sick. Accordingly we have arranged medical power of attourney, wills etc… It was none too cheap for even our simple array of assets; had we had many more assets it would have been more expensive and our lawyer was careful to emphasize that we be careful where we travel and be aware that with a capable lawyer against us even these safety nets could be copromised or held up in court battles at considerable cost in time and expense.Report

  7. Avatar Katherine says:

    I don’t get the sense that the judge’s conclusions require¬†the inclusion of the statements from Congressional debates. ¬†They’re there as substantiating evidence that the purpose of the law was, in the view of a fair number of legislators, to display government disapprobation of homosexual behaviour.

    But the judge doesn’t stop there. ¬†He goes through the arguments presented on the purposes of the law, and shows that it doesn’t serve any of them. ¬†The foundation of his argument isn’t recognition that some people in Congress dislike homosexuality. ¬†The foundation of his argument is that “condemning homosexuality” isn’t a legitimate purpose for a law that deprives some people of equal rights, and that refusing benefits to married gay people does not do anything to benefit heterosexual marriage. ¬†And I think he makes a reasonable argument for that point.Report

  8. Avatar Katherine says:

    Also, on Plato РTimes. Change.  He was a very wise man in his day.  There is much we can learn from him even today.  He also believed that all things were composed of various mixtures of four elements: air, water, fire and earth.  In his day, a reasonable person could certainly believe that.  In our day, a reasonable person cannot believe in the four elements as the foundation of chemistry.Report

    • Avatar Tom Van Dyke in reply to Katherine says:

      Katherine, I think we agree we cannot throw Plato out with his bathwater.

      I’ve seen the same argued contra Aquinas and Aristotle, that since Copernicus proved the earth orbits the sun instead of vice-versa, they are wrong about everything else.

      I trust you too would find such a proposition sophistic, if not nauseating. The point here is not that Plato was right or wrong on homosexuality, only that his view was not unreasonable.Report

      • Avatar Katherine in reply to Tom Van Dyke says:

        My argument was absolutely not that Plato was wrong on everything.  I in fact stated the opposite Рthat we can learn a lot from his writings.

        My argument is that the fact that a view was “reasonable” approximately two thousand years ago does not necessarily mean it must be considered reasonable today.Report

    • Avatar Jaybird in reply to Katherine says:

      As an aside, I’ve recently purchased this t-shirt.Report

  9. Nob Akimoto Nob Akimoto says:

    Plato’s opinion about sex and gender roles is about as pertinent as a blind man’s view on the Mona Lisa. That is to say, an interesting philosopher he may be, but his knowledge on the subject is sadly lacking.

    Moreover, if you look at something like Timaeus, Plato alleges all sorts of crazy things about women, or even in The Republic¬†the fella is quick to point out the intrinsic inferiority of the “lesser sex”. Now, my classical greek being terrible, I’ve only read translations, but I don’t think he’s any more relevant today outside of the concepts of philosophical inquiry and its history, than the Bible is in telling us about culinary habits.

    That is to say, damn right Plato’s invalidated.Report

    • Avatar Tom Van Dyke in reply to Nob Akimoto says:

      Mr. Akimoto, the argument is that it’s not about the Bible = irrationality. ¬†Tibetan Buddhism’s sexual ethics are close to the Pope’s, and they don’t claim divine revelation [scripture, Holy Book, etc.]. ¬†It’s a natural law reasoning.

      You’re entitled to disagree w/Plato. ¬†You are not enthroned as philosopher-king to declare him irrational—and neither are our courts. ¬†Which is the primary argument here.

      Whether Plato or the Dalai Lama are right or wrong is not the question here, only whether it’s proper to summarily discard them as “irrational.” ¬†The point is that neither one claims divine revelation as their authority [since we’ve stipulated the Bible is unconstitutional].Report

    • Avatar Rufus F. in reply to Nob Akimoto says:

      I don’t think that’s entirely right about the Republic. If you follow where Socrates’s argument about women goes there, it sort of upends any idea that women are intrinsically inferior. I wrote about that here:¬†https://ordinary-times.com/blog/2010/04/19/platos-republic-2-women-men/¬† His use of irony makes it a bit slippery though.

      I would also note that there are several places where Socrates accepts the intrinsic ‘naturalness’ of male sexual attraction to young boys, although, yes, he differs from many Athenians of the time in believing that attraction should not be acted upon. However, he also sees that attraction as a first step towards ¬†comprehension of the divine, which I’m guessing the Bible does not. Nevertheless, some of the Sufi poets who had read Plato did pick up on that aspect of his texts and wrote lovely poems about the aesthetic pleasures of young boys and wine, which I’m guessing the Muslims are not quick to claim as part of their tradition.

      Tom, I understand that Socrates and Aristotle both rejected relationships between men, and I sort of see where you’re going with pointing out that this was a normal position to take until very recently, and not confined to the Judeo-Christian tradition, which incidentally was not isolated from the Greek philosophical tradition either. But, honestly, I’m not really convinced that you’re opposed to homosexual relationships, which makes me wonder if what you’re doing here is just defending the honor of those who are opposed to homosexual relationships because theirs was, until recently, a common position to take.Report

  10. Avatar BSK says:

    I find it interesting you take issue with presumptions of intentions in the face of a simply numerical vote tally, given that not long ago you argued that a sloght majority of voting Catholics opposing the contraception coverage mandate amounted to American respect for the 1st, religous liberty, and religous pluralism. The mindreading meme you are pushing here and elsewhere rings hollow and self-serving.Report

  11. Avatar BSK says:

    “The argument is that that definition must re-justify itself to Judge White‚Äôs [or eventually the Supreme Court’s] satisfaction everytime somebody sues.”

    “DOMA passed¬†342-67 in the House, and 85-14 in the Senate. ¬†That‚Äôs the subject here.”

    “Whether Plato or the Dalai Lama are right or wrong is not the question here, only whether it‚Äôs proper to summarily discard them as ‚Äúirrational.‚ÄĚ ¬†The point is that neither one claims divine revelation as their authority [since we’ve stipulated the Bible is unconstitutional].”

    “The point here is not that Plato was right or wrong on homosexuality, only that his view was not unreasonable.”

    Which point is it, Tom? Which argument are you making?Report

  12. Avatar Jesse Ewiak says:

    It doesn’t matter if DOMA passed 435-0 and 100-0, it’d still be¬†unconstitutional.Report

    • Avatar Jaybird in reply to Jesse Ewiak says:

      I tend to agree with this on its face.

      I’m of the opinion that a law that is found to be Unconstitutional on its face ought to result in a reprimand of some sort against the Congressmen/women who wrote it, the Senators who re-wrote it, and the President who signed it as it’s fairly obvious that they had violated their oaths of office. (On my bad days, I tend to think that those who voted for it ought to at least have a letter put in their file.)

      However, when I make such arguments about stuff like McCain/Feingold, I get told that “Corporations aren’t people!” or something similar.

      I wish that there were a way to challenge laws as Unconstitutional more quickly than the whole local court -> district court -> Supreme Court method of doing so…Report

      • Avatar Will H. in reply to Jaybird says:

        I don’t think it is a denial of Constitutional rights.
        Those rights are actually quite limited.
        You would be amazed at the amount of prosecutorial misconduct that is not a violation of rights.
        A lot of caselaw regarding electronic communications was twisted around to nab someone on child pornography charges, again and again, until there is one fine clusterfish of a set of laws governing searches & seizures.
        The police are gods that hold the power of life and death over ordinary peons, and by-and-large they answer to no one. The courts will protect them no matter what.
        But if you try being a witness called to a US District Court to testify against the police (as I am), you will find that those federal witness tampering statutes are simply not worth the paper they’re written on.

        Perilous times we live in.Report

      • This matches a suggestion I made in the thread about amending the Constitution, where I advocated creating a body that would automatically trigger Supreme Court review of any law or executive action it wanted, and then the Supreme Court would be able to grant or deny cert as usual.Report

  13. Avatar Kenneth says:

    99.

    And this kind of blatant dishonesty is why TVD is a waste of space that only drags down the League. Really, to insist that the legislators who voted for DOMA were thinking of anything other than their own self-righteous cultish bigotry or the attack ads that would be run about them by self-righteous cultish bigots? To insist that they were thinking of “Plato” or some mythical “rational reason” to enshrine bigotry into law? What kind of fishing lunacy is required to make this claim and actually believe it?

    Ptooey. This kind of crap is the kind of crap we would expect to see on a Phelps family blog, or maybe on Pat Robertson or Peter Brimelow’s websites. It has no place here, and neither does the dishonest TVD.Report

  14. Avatar Jaybird says:

    I don’t understand why what was said on the floor *MUST* be considered irrelevant.

    I find stuff like the Declaration of Independence and Federalist Papers essential to understanding the Constitution. I find the “dicta” for any given big case to be exceptionally helpful in figuring out why it was decided this way instead of that way.

    And, when it comes to a law that pretty much blatantly flies in the face of the “full faith and credit clause”, figuring out why folks passed a law that did so requires what was said on the floor.

    Oh, they said that before they voted yes.

    Of course they did.Report

  15. Avatar Simon K says:

    I think you have what the judge is doing backwards, Tom. Heightened scrutiny requires that the judge determine whether the law furthers an important government interest. In order to do that, he has to dig into not only what the law says it does, but any other conceivable justification. If he had not examined the justifications offered on the floor of the house, which is quite commonly done, some argument could later be made that he should have done.

    In other words – he’s not saying that the arguments offered by legislators are a reason why the law is not consitutional, he’s saying they’re not a reason why it is, because they don’t meet the standard of heightened scrutiny. Similarly, he’s not saying that agreement with biblical morality is a reason to strike the law, merely than compliance with biblical morality is not an important government interest. As you rightly say, that has to be the case – I at least would have been stoned to death by my parents under biblical standards.

     Report

    • Avatar Stillwater in reply to Simon K says:

      In other words ‚Äď he‚Äôs not saying that the arguments offered by legislators are a reason why the law is not consitutional, he‚Äôs saying they‚Äôre not a reason why it is, because they don‚Äôt meet the standard of heightened scrutiny.

      Nicely put. There’s a big difference between saying that P is a reason for not-Q, and saying that P isn’t a reason for Q. Tom’s argument requires the incorrect reading to make any sense, it seems to me.

      Of course, I (and you ūüôā ) could be wrong about attributing the weaker argument to Judge White, and TOm could be correct. But it seems pretty clear to me that White is arguing that the content of the floor debates failed to establish a legitimate state interest in restricting who can get married. I don’t know if Tom is confused on this, deliberately misrepresenting the situation here, or actually has a legitimate argument in favor of his prima facie incorrect understanding of White’s position. If he does, he needs to make that argument rather than simply assert the contentious interpretation. And it shouldn’t need to be said – but apparently does – that appealing to what the majority of legislators at time T voted on, or what a majority of citizens believe, doesn’t constitute a valid argument here, as Tom fully well knows.

      It’s the difference between justifying the content of a belief because people as a matter of fact hold it or expressed it, vs. justifying the content of that belief via argument. Doing the former begs all the questions in play.Report

    • Avatar Tom Van Dyke in reply to Simon K says:

      Yes, Simon. ¬†Again, Judge White cannot know the minds of the 435 legislators who passed DOMA. ¬†It is rational to support it then and now simply out of caution, that we don’t know the effert of [or the legislator is dissatisfied with the arguments for] instituting gay marriage and therefore DOMA’s restriction on nationalizing the SSM question is prudent at this time. ¬†Let the states experiment, via federalism.

      It does not require an animus against any person or group of people.  And what some legislators who supported it said out of animus is not enough to override the legitimate votes of large bipartisan majorities in both houses of Congress.

      To the idea slipping in via Justices White and Walker, that religion may disqualify a law, I don’t know where the constitution or its amendments ever required that. ¬†Does the Muslim Rep. Keith Ellison have to justify to judicial review that his vote for x was devoid of any sentiment towards the Quran?

      Does the 14th abolish Biblical morality or religious conscience in passing laws? [Much of Christian, Muslim or Tibetan Buddhist sexual ethics come not from scripture/revelation, but moral reasoning. this applies to the Plato question as well, not that Plato is right, but simply that one can use moral reasoning to arrive at the same place as religion.] ¬†To ban such moral reasoning because of its association with a religious tradition seems a million miles away from any imaginable purpose of the 14th Amendment when ratified, and it’s in the ratification that it holds its legitimacy. ¬†[Or so said James Madison.]

      Indeed, did the 14th abolish the possibility that God exists and spoke to man through the scriptures? ¬†But that’s a bridge too far for this forum, I think, but it was the understanding at the Founding and at the ratification of the 14th. ¬†If the possibility that the scriptures are true was abolished by law, it sure wasn’t a law that the American people ever got to vote on.

      Pls note that none of the above arguments are predicated on the scriptures being true or even that God exists.  An atheist could support Biblical morality [monogamy, for instance] as a legal philosophy simply because he thinks it works.

      As for having what Judge White is doing backwards, Simon, I don’t think so. ¬†Traditional morality is given a scrutiny that its replacement [SSM] is not. ¬†This is the problem of radicalism in political philosophy of course. ¬†And so, I argue simply that prudence is a sufficient rationale for voting for DOMA without going into any weeds taller than that.

       Report

      • Avatar Kenneth in reply to Tom Van Dyke says:

        We don’t have to know the minds of all 435 legislators who voted for the law, just as we don’t have to know the minds of all those who opposed it. What we need to know is were there a solid group of legislators whose motivations were, on the congressional record in their speeches, the result of sheer bigotry and an indication that others who voted with them were agreeing with their bigotry.

        The congressional record is pretty fishing clear. Not ONCE did they mention Plato, but they mentioned “traditional values” and bible thumper dog-whistles over and over and over again, and in not a few times they mentioned actual bible passages.

        therefore DOMA’s restriction on nationalizing the SSM question is prudent at this time.  Let the states experiment, via federalism. It does not require an animus against any person or group of people.

        And here is where it gets really, really stupid. Hang the full faith and credit clause – the same clause that allows states to have differing ages of consent to marriage, differing ages at which minors who want to get married need parental consent, and yet does not invalidate their marriage just because someone from kentucky decides to visit california. The DOMA is a cynical, bigoted, pathetic end-run around FF&C, the express purpose of which was to DENY gays & lesbians the right to be married legally in one state and have their marriage recognized in another state or by the feds.

        The stupidity of this is mind boggling. Two straight people can run off to vegas, get married in a drive-thru chapel and go home, and all 50 fishing states must respect that marriage certificate… but if Nevada passed gay marriage, then gays would be denied their 14th amendment rights to FF&C recognition of their legally granted marriage certificate for doing exactly the same thing.

        And when you look at the congressional record, THAT is what the bigoted legislators were railing about. They weren’t fishing mentioning Plato, they weren’t mentioning legitimate reasons to pass DOMA… it was about making gays permanent second class citizens, whose marriages could be dissolved by a simple change of address.Report

  16. Avatar Tom Van Dyke says:

    Thx to all for the replies.  Comments closed until I wake and can give everybody all due time & respect.Report

    • Avatar E.D. Kain in reply to Tom Van Dyke says:

      Tom, I’m going to write a post clarifying all of this, but shutting down comment threads without a very good reason is not part of the comment culture here. I’ve reopened comments on this thread.Report

      • Avatar BSK in reply to E.D. Kain says:

        Copying my repy to Kenneth here, fwiw…

        “Kenneth-

        I was initially botherd by Tom’s action here, for a number of reasons. It seemed to squash an opportunity for critique, assumed that the only dialogues going on were between he and commenters, and was a step I had never seen taken by another author here. I then saw his update in the OP and remembered some of Jaybird’s words and gave a second thought to it. Would I have been as bothered had this been another author? Bothered, yes. As much so, probably not. I was, in part, responding to Tom as much as Tom’s actions. I felt somewhat justified in this, because the messenger does matter to an extent, but not as much as I was allowing for. I also considered that Tom seemed to be responding to some of the criticisms of him made in the aforementioned exchange with JB, namely that he disengages when strongly challeneged. To criticize him for that AND criticize him for taking a step to address that creates a no-win situation which is obviously unfair. I do think some of the language used in the OP update was a bit of a dig at those who disagree with him, but I am willing to let that slide if he does ndeed return and engages honestly the critiques put forward.
        So, yea, I didn’t love the move, in part becuase it risks playing into a larger pattern of Tom manipulating the flow of conversation. But lets see what happens first before making that determination. I think Tom might have been better served to simply say he was signing off for the night, would return when he could, and would engage as much as possible with the caveat that it would be hard if the comments section was overrun. That would have allowed others to continue dialoguing and allowed Tom to deal with RL without it beingheld against him. But that’s me.

        Let‚Äôs see how this plays out before we crucify Tom again who very well may have been, and who I will assume was, acting in good faith.”Report

        • Avatar Jaybird in reply to BSK says:

          There’s one particular assumption that bugs me and that’s the assumption that people have a right to necessarily be engaged with.

          There have been times in my life where I have written something, logged off, then had to go to the store, visit mom, had to go to Best Buy with mom to get her a new something or other, pick up Maribou from work, go out to dinner, come home, and go to bed wiped.

          The next day, someone responded to my post, waited an hour, then said that it was suspicious that I was remaining silent on this issue and how that demonstrated this, that, or the other. No, dude. I was at Best Buy.

          If Tom feels like he’s going to get yelled at if he doesn’t engage with people’s arguments, I can perfectly see why he’d say “let’s close stuff down until I have time to engage with people’s arguments”.

          Lord knows, I wouldn’t want to jump into a 200+ thread, answer 15 posts, and have someone say “you’re a coward for not addressing number 16. This is exactly what we always talk about. 99.”Report

          • Avatar BSK in reply to Jaybird says:

            JB-

            Great point. No one can or should be expected to respond to every comment directedmthere way. I do think it legitimate to look at wider patterns of responses and to criticize if it seems someone is deliberatey avoiding certain types of arguments… That is part of debate. But, yes, the “You didn’t immediately respnd to my argument so, HA!, you obviously know you are wrong” meme is below the LoOG. So, too, is ignoring your critics. Thankfully there is a lot of real estate between those two extremes and I hope my comment above appropriately acknowledged that.Report

          • Avatar Stillwater in reply to Jaybird says:

            JB, good point. I agree that a demand for a response from any commenter is out of line. And I don’t mean by blogging standards. I mean that on an argumentative level. If person L’s response disputes the content of person M’s comment, M isn’t required to respond to that. I mean, I often make comments which people respond to by disagreeing with me, and I leave it there – they disagreed. In my own case it’s because I’m willing to grant the disagreement. But if someone disagrees with me by saying I’m getting the facts wrong, or that I’m misrepresenting their position, or that I’m confused about what they meant, I actually do respond (or try to) with an apology, a concession, clarification or a more detailed argument. In the types of situations under discussion, this dialogue-driven exchange of ideas based on intellectual honesty is often absent.Report

            • Avatar Jaybird in reply to Stillwater says:

              And if someone gives a specious argument and the response is something to the effect of “you’ve got the facts wrong, you’ve misrepresented my position, and you’re confused about what I meant” and it’s left there… it seems to me that the specious argument is pretty much effectively refuted.Report

      • Avatar BSK in reply to E.D. Kain says:

        And to the other commenters, I implore you to avoid turning this comment section into a bash fest in Tom’s action here. There is a legitimate place for that discussion on E.D.’s upcoming post and hopefully Tom participates in that dialogur and has an opprtunity to better explain his raionale. Perhaps I am in a more-charitable-than-usual (I like to think I am genuinely pretty charitable, but I am an arrogant prick) mood today, probably after enjoying Blue Label for the first time last night, but this seems the right thing to do… Which is all I ever set out to do. With mixed results.Report

        • Avatar Will H. in reply to BSK says:

          I’ve learned not to take things too personally.
          Why get upset about it?
          There are many other things that are actually worthy of being upset about.
          Let’s be real:
          It’s the same old dynamic of expectation and disappointment.
          Anticipation resolution.
          Vacuuming the floor would be more productive than getting upset about something like that.
          This is the internet, for crying out loud.
          I saw a service disruption at two sites at the same time the other day, and one of those sites was this one.
          Whose at fault then?
          (rhetorical question)Report

          • Avatar Tom Van Dyke in reply to Will H. says:

            Thank you, gentlemen.  You correctly and charitably discerned my intentions on closing up shop for the night.  I have thought that not answering the 16th post after answering 15 has contributed to the perception [charge!] that I duck and dodge.  It is never my intention to do so, so I had hoped to keep things more manageable so I can answer more in full.

            I’ve never had the faintest ambition of changing anyone’s mind about anything here. ¬†The purpose of our dialogues is to test our ideas and arguments. ¬†To cheat them is to cheat the whole purpose of our forum, and to waste one’s time.

            Again, thank you for the charitable [and accurate] reading.Report

  17. Avatar Will H. says:

    The Fourteenth Amendment doesn’t really mean a lot.
    We have previously rejected reasoning that “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States”…
    Daniels v. Williams
    See also County of Sacramento v. Lewis

    It’s not unusual that the Courts would consider Congressional statements of intent in an opinion. I remember seeing that in with the Identity Theft and Assumption Deterrence Act and the Organized Crime Control Act; mostly in civil matters with the latter.
    I don’t remember seeing an opinion where the Court considers the statements made on the floor when arguing the bill.
    I believe those statements would be non-statutory considerations.Report

  18. Avatar mark boggs says:

    I still think the idea that “traditional morality” means one thing and one thing only is suspect.¬† History’s trash bins are filled with the bankrupt ideas of what passed for “traditional morality”.¬† Not to say that some of the ideas didn’t have merit, others deservedly belong in the heap.¬†

    Where I get sideways is the idea that “person X’s” traditional morality dictates my freedoms and liberty.¬† I understand that you, Tom, have a bit different definition of the extent to which freedom and liberty should be unfettered based on some of our past discussions on this topic, but I just can’t escape the thought that, in this great country, we are comfortable with taking a segment of the population and telling them that they can’t do something that all of the other folks can do because it goes against “our” morality, as though the term is monlithic.

    Find it morally reprehensible if you will, but until you can prove some sort of actual harm that isn’t based on a slippery slope Rube Goldberg sort of, “If we let the gays marry…and then we’ll all end up in a ditch with broken bones”.¬† Marriage is not a strong institution unfortunately.¬† Whether this ultimately good or bad, who is to say?¬† But to try to retroactively hold gay marriage responsible for a trend that has been developing for half a century seems to get it backwards.

    Finally, I’m all¬†in for getting government out of marriage so long as¬†anybody and everybody has the same ability both in terms of access and in terms of the financial burden one has to go through to get the contractual benefits of a marital status.¬† I have a feeling however that, for the anti-SSM crowd, this doesn’t sit well.¬† And for a few of them, would only expose their true motives on the subject which really isn’t about protecting marriage but making sure that gays are stigmatized and kept as second-class citizens.Report

  19. Avatar Liberty60 says:

    …¬†it seems absurd that the ratifiers of the Fourteenth Amendment ever suspected they were changing the Constitution to require the abolition of traditional morality.

    I’m not so sure. The Enlightement was a truly radical movement of its day; “Traditional morality” had, as its center, the Divine Right of Kings and the idea of a One True Church.

    Here is where I need the assistance of the more educated fellows in The League: I distinctly recall reading a passage from an 18th Cent philosopher saying something to the effect of should we abandon the firm rock of traditional morality to be left adrift on the seas of relative morality where everyone can decide for themselves how to think.

    In other words, this debate about moral relativism and authority is not new.Report

    • Avatar Tom Van Dyke in reply to Liberty60 says:

      Lib60, Divine Right of Kings was pushed by James I and opposed by the Jesuits Suarez and Bellarmine, as well as the Calvinist-Presbyterians of Scotland.

      The English crown [Henry VIII] had taken over the church, not vice-versa, a dimension of the separation of church and state controversy seldom appreciated in our current discourse.

       Report

      • Avatar Chris in reply to Tom Van Dyke says:

        It’s not surprising that it was opposed by Catholics, given that a.) it was largely a Protestant theory and, relatedly, b.) it undermined the authority of the Pope, who had previously been a sort of sovereign of sovereigns.

        So, while it is certainly worth noting that the English crown took over the church, this is because prior to this, the church had taken over the crown. I know there are exceptions and oddities in this relationship, but this is the relationship that Catholics were taught (e.g., by your beloved Aquinas). In a way, the relationship the English took under Henry VIII was a step forward, even if an awkward and insufficient one.Report

  20. Avatar Daniel Francis says:

    ditto.Report

  21. Avatar Rufus F. says:

    Surely not all of them were irrational haters.

    I actually don’t think very many members of Congress are ever irrational haters. Maybe Jesse Helms, but he’s been gone a while. I do, though, think a good number of them are craven, pecksniffian, grandstanding fools. That seems to be pretty bipartisan.

     Report

  22. Avatar Chris says:

    What I find odd about this entire approach is that it doesn’t seem to be addressed at what the judge actually said in his opinion. Sure, there’s a cherry-picked passage on one page, and then something about considering what some legislatures say, but since he did much more than that, including considering congressional reports and the actual evidence cited both in congress and by those defending it in court, what is there to discuss here?Report

    • Avatar Burt Likko in reply to Chris says:

      I think it’s fair to question whether review of Congressional intent is an appropriate tool to use when invalidating what is ostensibly the expressed will of the majority, and if so, what kind of deference is afforded that record.Report

      • Avatar Tom Van Dyke in reply to Burt Likko says:

        Burt, why must the “majority” express its will in blahblah rather than voting the text of the law? ¬†Must each legislator express his intent for the Congressional Record so that a judge may decree it “rational” at some point in the future and let the law stand?

        Where did this theory of judicial review originate, and when? ¬†Shall Muslim Rep. Keith Ellison explain his every vote, and assure future courts that he paid no heed to the Quran, Hadiths, etc. in reaching his decision on how to vote? ¬†I’d think the actual text says far more than speechified “intent.” ¬†[As far as I know Congresscritters aren’t under oath when they blahblah. ¬†Which is why they’re all not in jail.]

         

         Report

        • Avatar Burt Likko in reply to Tom Van Dyke says:

          My rejoinder back is, why is that an appropriate lens through which to view legislation, but an appropriate lens through which to view the Constitution? As I wrote above, if you want to be a textualist and just look at the words of the law, I’d welcome that approach. I think that approach makes a lot of sense. The only thing we can be certain that a majority of Congress agreed on were the actual words of the law.

          In this case, we can simply ignore the first ten pages or so of Judge White’s opinion as it would be superfluous to an analysis of the text. The question then becomes whether the text, on its own, satisfies the appropriate level of scrutiny (and determining which of the several levels of scrutiny available is the appropriate one). You’ve suggested above a possible rational basis for the law which Judge White did not offer; I think that reason merits at least closer examination, although the lack of a sunset provision indicates to me that something more than prudence was the objective.

          Now, I tend to agree with you that we can’t and needn’t bother getting into the heads of every member of Congress who voted for DOMA. But given that many of those same members took the time to explain themselves, we also can’t and needn’t deafen ourselves to what they said. Just as we can and properly do look to writings like the Federalist Papers in determining the original intent of the Framers of the Constitution, but are not bound by those writings, so too can and should we look to the non-mandatory statements made by legislators on the floor of Congress explaining why they voted for or against a law when we are asked to interpret it.Report

          • Avatar Tom Van Dyke in reply to Burt Likko says:

            All true, Burt,¬†if the power of judicial review extends to a judge agreeing with the motives of the legislature: not just examining the text of a law’s constitutionality, but acting as a re-ratifier of the law and of the persons involved passing it.

            We already have the executive branch with the power of veto, but at least the checks-and-balances structure of our government allows for a presidential veto to be overridden by supermajorities in Congress.  For the courts to have a veto power beyond affirming mere constitutionality, with no check or balance, seems to me to be, well, unconstitutional.

             Report

        • Avatar Stillwater in reply to Tom Van Dyke says:

          Tom, you’re repeating the meme that Judge White ruled against DOMA because the floor arguments presented in its support invoked religious language and references. But that simply isn’t correct, or at least isn’t obviously correct.

          Now, your view that arguments on the floor ought to be irrelevant to the final determination of the constitutionality of DOMA may have some merit (personally, I disagree but I’m not a lawyer). But that’s not what you’ve been arguing in this thread. Rather, you’ve been arguing that 1) since the contents of floor debates are irrelevant wrt the legislation enacted and 2) because Judge White based his decision to overturn DOMA on the grounds that those arguments unconstitutionally invoked religion, and further that 3) he overlooked a crucial argument from prudential behavior based on traditional morality, his final decision is incorrect and DOMA ought to have been sustained.

          And while I (for one) am willing to grant that there may be an in principle argument to support 1, that argument is irrelevant since 2 is false. Meanwhile, 3 may have been a justification for DOMA back in the day, but the burden is on the ‘traditional moralist’ to provide evidence that a lack of prudence wrt permitting SSM will actually result in sufficient harms to establish a legitimate state interest. Or at a minimum, I suppose, at least establish that SSM would cause more harms than are currently experienced by those deprived of the right to marry.

          In my view, you haven’t done that.Report

          • Avatar Tom Van Dyke in reply to Stillwater says:

            Well, Judge White is definitely putting the burden of proof on DOMA to rejustify itself to his satisfaction.  Whether that burden is properly put, we shall see as it gets kicked upstairs.

            I disagree that opposition to gay marriage is inherently irrational, or that legislatures are required to go on record during the framing debates their reasons for passing the law. ¬†I think the passage of DOMA is evidence enough that the legislators were not convinced of the arguments in favor of SSM, and that the prudential argument—which you allow somewhat—is obvious enough because of DOMA’s very existence that it didn’t need to be explicitly stated during the debates.

            [And further, I don’t concede that the framing debates are terribly relevant in the first place, except as clarification for the meaning of the text. ¬†The debates have no authority; only the text.]

             Report

            • Avatar Stillwater in reply to Tom Van Dyke says:

              I think the passage of DOMA is evidence enough that the legislators were not convinced of the arguments in favor of SSM,

              I would actually phrase this differently. It’s not at all clear that CCers were convinced or unconvinced by SSM arguments. All we can say, without crawling in their heads, is that a majority voted in favor of DOMA for whatever reasons. But that doesn’t answer the question of the constitutionality of the law. Majority support in both houses plus a presidential signature are necessary for constitutionality, but not sufficient. And that’s what Judge White was evaluating and presented a decision on.

              and that the prudential argument‚ÄĒwhich you allow somewhat‚ÄĒis obvious enough because of DOMA‚Äôs very existence that it didn‚Äôt need to be explicitly stated during the debates.

              I do somewhat allow it, if it meets a minimal burden of demonstrating a reasonable likelihood of increased harms. But the rest of the comment I would also phrase differently. Without crawling into people’s heads, all we can say is that the argument was never made on the floor, or at least that it wasn’t made early-and-often enough for Judge White to consider it in his opinion. I mean, if this really was the motivation for DOMA, then it ought (instrumentally) to have been articulated in floor debates. The fact that it wasn’t, except indirectly and with overtly value-laden and moralistic language, leads me to believe that it wasn’t a compelling interest for most members of Congress, and that support for DOMA was primarily political.Report

              • Avatar Tom Van Dyke in reply to Stillwater says:

                The fact that it wasn’t, except indirectly and with overtly value-laden and moralistic language, leads me to believe that it wasn’t a compelling interest for most members of Congress, and that support for DOMA was primarily political.

                 

                Exactly. ¬†But you cannot know, and neither can a judge, after the fact. ¬†I’d submit that the law passed easily and overwhelmingly, and the typical “yes” vote meant something like

                “I don’t feel like thinking about this right now, I don’t feel like debating, I don’t want to go on the record appearing like I’m bashing gays and losing votes and donors, so let’s just vote yes and kick this thing down the road and get the hell out of here.”

                Which, IMO, is a perfectly legitimate and rational reason for passing the bill, and judicial review has no power to second-guess it.  Guessing motivations as some new theory of constitutionalism is absurd, in my view, if only for the unlikelihood of guessing correctly.

                And we’ll see if the higher courts agree. ¬†My guess is that they’ll skip over this part of Judge White’s decision completely, and I hope they do.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Guessing motivations as some new theory of constitutionalism is absurd, in my view, if only for the unlikelihood of guessing correctly.

                Are you making a small claim here, or a large one? The small claim would be that this part of Judge White’s argument is unsound. The large claim would that since Judge White based his decision on a dubious premise, his entire argument is unsound?Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Also

                judicial review has no power to second-guess it.

                Not even on constitutional grounds? You said the same thing above in response to Burt. I think I must be misunderstanding you, but it seems you’re saying that any law passed by congress and signed by the president ought to be insulated from judicial review. Is that right?Report

              • Avatar Tom Van Dyke in reply to Stillwater says:

                Well, of course on constitutional grounds, BSK.  But reading motive and intent on the part of the legislator is a brave new world.  Bad people do good things sometimes, for the wrong reasons.

                It would be safest to assume the legislator’s motive and intent is to get re-elected, and his understanding of the bill itself should be doubted in the extreme.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                This is twice now I’ve been referred to on his sub-thread. ¬†Yet I’m not anywhere in it… what exactly are you guys referring to of mine?Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                This is good for clarification purposes. You’re digging in on the idea that White overruled DOMA because of the floor debates. Is that right?¬† Report

              • Avatar Alan Scott in reply to Tom Van Dyke says:

                The entire rational basis/intermediate scrutiny/strict scrutiny framework requires an evaluation of the legislator’s intent. ¬†Are you saying that the SCOTUS-established framework for review is “a brave new world”?Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                BSK,

                Heh. Since their confusing me for you, I’ll take it as a compliment.Report

              • Avatar Burt Likko in reply to Tom Van Dyke says:

                Alan, bear in mind taht the “new” “strong rational basis” standard such as is articulated in Judge White’s opinion is focused more on practical effect than intent.

                It doesn’t get completely away from intent, though.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Mr. Still, my interest is in the method—I don’t like the idea of judging constitutionality by floor debates or guessing the legislators’ motive and intent. ¬†Neither do I think religious/metaphysical ethical-moral reasoning is inherently unconstitutional.

                Hence, why I brought up the Romer v. Evans thing, which I hope some people looked at the link.

                http://linguafranca.mirror.theinfo.org/9609/stand.html

                Fascinating story and about the role and future of philosophy, metaphysics, moral reason [natural law] and religion in our polity, in our legal and judicial theory.

                My interest in the gay marriage litigation itself is secondary.  Certainly courts can do what they will, regardless of principle, logic or argument.  Roe v. Wade is acknowledged by even many supporters as bad law.

                I guess when The Biggie on SSM comes down, we’ll see how cynical about the courts we should be. ¬†What I see in Judge White’s decision is to use any tool to keep DOMA from passing “heightened scrutiny,” and he even submits that it likely doesn’t even meet “rational basis.”

                He does seem to hit Lawrence v. Texas a lot. The Biggie will likely come down to Anthony Kennedy, but Kennedy in Lawrence wrote:

                The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

                so it’s still an open question as to where Kennedy will go with this.

                Justice O’Connor wrote:

                That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. 

                which if I recall, refers to her opinion that the Texas law in Lawrence barred homosexual sodomy but not heterosexual, therefore violating equal protection.  [IIRC.  And if so, quite logical.]

                As for the arguments that SSM is equivalent to differing state laws on minimum age or consanguinity and therefore should be given Full Faith and Credit from state to state, I cannot agree: those are differences in degree and not in kind, as SSM is.  I do not think Indiana would extend full faith and credit if Pennsylvania permitted marriage between people closer than cousins [if you know what I mean, and I think you do].  That abstracts the question far beyond the limits of common sense.

                So no, Mr. Still, I’m really not sharpening my blades against SSM beyond the prudence argument, and my vital interest is in the exile of moral reasoning and in this new [new to me at least] judicial method of examining motive and intent on the part of the legislators. ¬†These dynamics were the focus of my post here, not Judge White’s decision in toto.

                My very first impression, in reading Burt Likko’s first post about this decision, was thinking back to 1993, when sentiment for a constitutional amendment along the lines of DOMA was far more popular, perhaps even doable. ¬†Sen. McCain assured us that a constitutional amendment was unnecessary, that DOMA would do the job. ¬†And indeed it passed Congress by huge majorities!

                I remember thinking at the time that he was probably wrong.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                BSK & Still: ¬†Sorry for confusing you two gentlemen—it’s why I wanted to slow things down last night, to be able to give proper responses. ¬†As you can see, I’m kept quite busy when I write a front-pager—I’ve done little else today except reply [and research my replies].

                I admit sometimes I just give up to fatigue with a one-liner, and that seems discourteous or dodgy. ¬†I’m really trying to hang in here to show my true self today. As you can see, the OP was not a mere shoot-from-hip, I was quite prepared to back it up with much additional info & links. ¬†But one OP—esp from me—is one helluva investment if I’m to come off sincere and not glib, and reply properly.

                Thx for yr patience, forbearance and all around good cheer today. ¬†it makes it all worthwhile, instead of a misery. ¬†Next one’s on me.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                No need to apologize. I wanted to address any comments to me, but felt there was a mixup. No harm, no foul.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                No worries about the confusion Tom. I’ve done it meself a few times in the heat of battle. I know you know who I am.

                But back to the topic at hand!

                You say that you’re bigger worry here – a worry that transcends the limited focus of White’s decision – is the bankruptcy of moral reasoning in modern discourse, be it judicial, political, or conversational. Here’s what I don’t get, Tom, and mean this with all sincerity: in what ways do you think moral reasoning is lacking? I mean, you keep saying that, but only in situations where decisions of legislation or popular opinion go against the views you hold.

                For example, in the above comment you wrote that

                So no, Mr. Still, I’m really not sharpening my blades against SSM beyond the prudence argument, and my vital interest is in the exile of moral reasoning and in this new [new to me at least] judicial method of examining motive and intent on the part of the legislators.

                as if what you’re really interested in is a better discourse on moral reasoning. Yet, in the same comment you wrote that

                when sentiment for a constitutional amendment along the lines of DOMA was far more popular, perhaps even doable.  Sen. McCain assured us that a constitutional amendment was unnecessary, that DOMA would do the job

                as if you overtly and explicitly support a ban on SSM independently of the moral reasoning which may or may not arrive at that determination. And just so you don’t think I’m being cavalier about this, you’ve repeatedly made the same type of arguments wrt abortion. You even did this in the Burden of Proof post where you criticized atheists’ arguments as having merit only if they’ve already refuted theistic arguments for the existence of God.

                In short, it appears to me like you frame arguments to support you’re preferred conclusion and only (disingenuously) make gestures towards a more explicit and comprehensive approach to ‘moral reasoning’. You consistently do this when the decisions, arguments and popular opinion aren’t on you side. It certainly makes me wonder about the sincerity of your claims to neutrality of argumentative outcomes. Especially given examples like I presented above.

                 Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Mr. Still, my primary concern is that moral reasoning is being abolished in judicial theory as inherently failing “rational basis.” ¬†This troubles me the most, and is the purpose of the OP, and I have written at great length on this dynamic beginning with Romer v. Evans: Plato, Muslim congressman Keith Ellison, and whatever’s inbetween, which is a lot.

                As for John McCain being wrong in assuring us that DOMA would be sufficient as a bulwark against gay marriage being imposed nationally by the courts, that’s the legal thing, a secondary, or if you prefer, an unimportant thing in the context of the OP. ¬†I’m not real interested in all that, exc to note it. ¬†When The Biggie comes down from Anthony Kennedy, that’ll be that.

                Had DOMA become a constitutional amendment, well, that would have been that.  Noted.  We move on.

                 Report

              • Avatar BSK in reply to Tom Van Dyke says:

                But aren’t there different lines of moral reasoning? It seemed the Judge rejected one particular line of it, not the entirety of the approach.Report

          • Avatar Chris in reply to Stillwater says:

            BSK, right, this is all an exercise in hypotheticals, because Tom’s argument doesn’t actually address the ruling.Report

      • Avatar Chris in reply to Burt Likko says:

        Burt, I linked an interesting paper in your thread on the history of such reasoning by judges. However, while I think using Congressional intent by itself would be strange, since White doesn’t do that, I don’t see what the problem is.Report

  23. Avatar Alan Scott says:

    ”¬†On the macro level, it seems absurd that the ratifiers of the Fourteenth Amendment ever suspected they were changing the Constitution to require the abolition of traditional morality.”

    Why? ¬†I’d imagine the ratifiers explicitly intended to overturn traditional morality with their radical notions of equality. ¬†Certainly they planned to abolish then-traditional moral beliefs about slavery and the rights that should be accorded to black people.

    But just as surely, they intended their enshrinement of due process and equal treatment to extend beyond the then-pressing issue of freedmen.  Why else write such a broad amendment, rather than addressing race or slavery more specifically?Report

  24. Avatar Jeff says:

    I noticed a few days ago that a Washington State judge had overruled the state legislature in not allowing pharmicists to opt-out of filling perscriptions, saying that they had done so “to limit religious freedom”.¬† Since this judge is sided with “traditional morality”, would you say that this was a correct or incorrect action on his part?

    (I’m thinking he’s full of horse-hooey.¬† The legislature wants pharmacists to do their job, and if they have a problem filling an order, the burden is on them to find someone who will.¬† “Religiousfreedom” had nothing to do with it — this was Christians wanting to impose their “morals” [ha!] on the rest of us.)Report

    • Avatar Tom Van Dyke in reply to Jeff says:

      Does certification by the state for safety reasons make you an agent of the state?

      With all the certifications these days, we’ll all be agents of the state before long.

      http://www.ginawallace.com/certification.htmReport

      • Avatar Jeff in reply to Tom Van Dyke says:

        Not an agent of the state, if by “agent” you mean something like “employee”. If I get a certificate from Microsoft or Cisco, does that make me an “agent” of those companies?

        However, the state does retain its concern over safety issues, and this, to me, is one. If the only pharmacist in town has a moral objection to anti-depressants, the guy down the street with severe depression could be screwed. You and I would disgree about the safey value of contraceptives, but I would think that withholding ANY prescribed medicine raises safety issues.Report