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Get Gay Marriage Off the Ballot
Pat Wellenbach / AP Photo
The Maine gay-marriage initiative went down to defeat Tuesday. But the real tragedy is that it should never have been put to a vote in the first place.
I had hoped gay marriage would win out in Maine. I even gave them a little money (thank you to gay friends for a dinner). So when it lost, I was sorry that the crucial percentage of the Maine voters saw fit to weigh in against their fellow citizens’ ability to conduct their most intimate and meaningful human relationships on a level playing field with everyone else in the state.
But winning or losing makes no difference to the real question: what in the world was this issue doing in a referendum anyway? Isn’t this exactly the kind of thing that James Madison invented the life-tenured federal judiciary to decide?
Isn’t this exactly the kind of thing that James Madison invented the life-tenured federal judiciary to decide?
Recently, a bunch of legal scholars and influential commentators representing themselves as liberals, have suggested that it’s not. The federal courts should just bow out, they say, of deciding things like gay marriage (and abortion rights). (Little-known fact: the Bow Out movement started with a suggestion that the Supreme Court had made a mistake when it integrated the schools. Imagine what the law would look like if the Brown court had waited until a majority of states were ready to pass the Civil Rights Acts.) Painful as it is to them, as sincere supporters of abortion rights/gay marriage/your issue here, these wise ones think the federal courts should follow the election returns. Only when a majority of states have legalized something should the federal courts find that it was a fundamental constitutional right all along.
Look at the damage, the law professors say, from the Court’s “premature” decision to protect women’s right to abortion in 1973. Why, bands of protesters are still showing up at the Supreme Court building with pictures of fetuses. How much better it would have been, they argue, to fight these grinding, state- by-state battles to protect women’s choices, than to have legal abortion protected as a matter of equality and privacy for 36 years.
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• More Daily Beast writers on the election resultsWhat these academic treatises ignore is the concern that Madison and others had that what they called the tyranny of the majority was legitimate. A majority, Madison predicted, often whipped up by demagogues, would oppress a helpless minority, a group so naturally small it could never hope to protect itself at the polls alone—using the government to deprive them of those aspects of life fundamental to a free society. No kidding.
The Framers set up systems to protect the minority–legislators would come from different constituencies, voters selecting representatives would have different issues before them when they voted, laws would require the executive to sign off, too. The Framers wrote down a list of rights, like freedom of assembly and religion, which could not be bargained away by any legislature. Soon after the founding, the federal courts took on the constitutional role of saying what that document required. After the Civil War, the Constitutional scheme was expanded to require equality before the law and to apply to the states specifically. The constitutions of the states modeled the state governments roughly along the lines of the federal example, including an independent judiciary to enforce the state constitution.
When confronted with gay marriage, a record number of states, red and blue, stood that carefully constructed system on its head. In the Maine gay marriage campaign, the popularly elected branches were invoked, when, in a matter of great human importance and intimacy, gay marriage should have been a matter of fundamental rights for the courts from the beginning. The odds did not look good from the outset: although three states have extended marriage to same sex couples by legislation, twenty-seven have banned it. However, protected by their terms and the presence of other issues in most elections, the Maine legislators took the electoral chance of enacting gay marriage. At that point, one might conclude, the Madisonian system was working pretty well.
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Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.
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Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.
The Bizarre Case Against Gay Marriage
Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.
menckenlite
Selectively choosing how to get special privileges from government is convenient. In MA the state Constitution makes marriage an issue for the Governor and the legislature. The courts in MA did not have jurisdiction to legalize same sex marriage. The legislature ignored the constitution and a citizen petition and yielded to raw political power of the homosexual lobby. Homosexuals run the FBI for many years. They are not weak as a group. If laws are to be written by judges there is no need for legislators who are supposed to represent the voters and to write laws. The arguments for integration of schools and for abortion are backwards. It was not until the US Congress passed the civil rights acts (plural) that black Americans had strong backing for their rights. A court case can be overturned. It is in the interest of the homosexual lobby to have the legislature legalize same sex marriage. Quick and easy is a short term solution.
cbl99201
If only this issue could be before the court today! If the Supremes ruled against gay marriage, the last recourse for it's supporters would be a U.S. constitutional ammendment. There's not a snowballs' chance that would ever happen.
case1234
Although, I do support Same sex marriage and wish the measure did not pass. I am glad that the meme that its the "blacks" fault has been eliminated.
Blacks make up about 5% of CAs voting population. The notion that they were the reason Prop 8 passed is pretty ridiculous.
semper39
Major civil rights changes by the courts or by constitutional amendments have always followed public opinion. The ending of slavery, the ending of "Jim Crow," the ending of anti-miscegination laws were all favored by a majority of the American public when they occured (though there was strong regional opposition). The courts and the legislative branches (federal and state) cannot get too far out of synch with the public. If they do, they risk marginilizing their own authority.
The American public does not support same-sex marriage; perhaps the public in some states do support it, but I suspect that the pro-same-sex marriage crowd won't want to take the risk of finding out if that is true. If you want same-sex marriage to become the law of the land, you are going to have to convince the public to support it (hint-you don't do this by vilifying your opponents, this only sets them more firmly against you).
By the way, the U S Supreme Court has already ruled against same-sex marriage in Baker v. Nelson 409 U.S. 810 (1972). The ruling is binding on all inferior courts and is the reason why all state courts that have allowed same-sex marriage have ruled on state constitutional grounds not federal constitutional grounds. Only the U S Supreme Court can reverse this ruling and I don't see the present Court doing this.
mir2dawg
"Major civil rights changes by the courts or by constitutional amendments have always followed public opinion." ??? That's actually not true at all. In 1967, the US Supreme Court case LOVING VS. VIRGINA that ended all race-based legal restrictions on marriage in the United States happened when a super majority of the public disapproved of interracial relationships in themselves - 70% of the public to be exact. In fact it wasn't until it 1997 that support of marriage for interracial couples broke the 50% mark - 30 years after the court decision! President Clinton was in the White House. The courts were clearly "out of sync" with public opinion at the time of that decision. Should the courts had ruled otherwise and upheld the bans on interracial couples being able to wed? Plus, in both California and in Maine, gay marriage was struck down with a slight majority 53% to 47% -- hardly enough to merit the argument that the "vast majority of the public disapproves of gay marriage," especially when support for gay marriage increases each year.
semper39
I question your figures. Can you give me a source? By the way, California and Maine are two of the states most receptive to same-sex marriage. If you get out of the northeast, the west coast, Hawaii and Iowa the numbers would be much worse.
DragonScorpion
Quite right. Notice you get no answers to this though. Just more calls from some to let the majority steamroll over the rights of minorities. If their advice had been heeded before 1967 then interracial marriage ~might~ be legal today, but it wouldn't have been legal nationwide until the 1990's at best.
The fact that 'activist judges' as they call them (or "elites" to satisfy Aslanleon) struck down discriminatory, unconstitutional restrictions on marriage is a very inconvenient reality for them to have to ignore or gloss over. Most ignore. Aslanleon glosses it over, arguing that most states didn't have anti-miscegenation laws and some of his relatives lived in states where it wasn't allowed yet they married so it wasn't really a big deal......
I guess the Mildred and Richard Loving should have just been more patient...
crymeariver
Completely agree that it's a issue for the U.S. Supreme Court. But after Prop 8 failed in California conventional wisdom among Gay-rights groups was that they didn't spend enough money and that it was the fault of Blacks and Latinos. So they picked a state with almost no racial minorities and out-spent their rivals by over a Million dollars. The results are still the same. Lots of people said it was a mistake to go ahead with the Maine Campaign. It doesn't matter what state you put up the vote for Gay Marriage, the results will continue to be the same. Only the supreme court can decide this matter, not the states, congress or the White House.
hithere3
I'm not sure how this is a matter for the Supreme Court. Neither gay marriage NOR straight marriage is mentioned in the U.S. Constitution, and therefore whether or not to protect or ban gay marriage is a matter for the states.
The reason gay marriage proponents would like a ruling from the Supreme Court is that it provides ultimate authority, carte blanche dictatorial power, in a sense. But it also conveniently ignores the framework of American government.
In that spirit, the federal DOMA law seems patently unconstitutional to me. What right does the federal government have to tell the states they CAN'T legalize gay marriage if they so choose? That's not a power delegated to the legislature and executive branches. It is a power specifically reserved by the states and the people.
semper39
DOMA doesn't tell states that they can't legalise same-sex marriages. It tells them that the federal government won't recognise those marriages.
Cyberdog
Also, I'm not sure that gay marriage proponets are going to be happy with a Supreme Court determination. Does anyone seriously believe that a majority would vote to recognize gay marriage as a fundamental right?
hithere3
not the american majority, but clearly there are some states where this was possible, and other states where the issue is approaching parity (for/against).
BluLobster
Actually, marriage is considerable under the purview of the Supreme Court. Loving v. Virginia, for example, which made interracial marriage universally legal. They have made numerous rulings about marriage in relation to freedom of association and privacy. Many of the rights we enjoy from the constitution are not actually in the constitution explicitly.
fenngibbon
I think you misunderstand what DOMA does. One part states that the federal government recognizes marriage as between a man and a woman, but that only applies to federal situations (e.g., a gay couple can't file taxes jointly). The other part states that no state is required to recognize a same-sex marriage made in another state.
That Congress could make that provision is perfectly constitutional. Art. IV, section 1:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
DOMA was Congress prescribing the manner in which marriages in one state would be treated in other states.
candyman101
well spoken hithere3. and while i find the result of Maine's (and all the other state's) election reprehensible I fail to see how the federal government should have any say in the matter. I realize that in the past the SC has become involved when the states denied equal rights for other reasons. However, what strikes me as truly despicable is the "blue states" showing their true bigoted nature by denying gays the right to marry. I guess it is much easier to be a homophobe when you can hide in the voting booth.
hithere3
No, you misunderstand it.
By passing DOMA, Clinton and Congress forbade gay married couples in, say, Vermont, from claiming federal tax benefits, or from being even recognized as married by the federal government -- same as with gay married couples who were married in other countries.
You also completely misunderstand Article 4, Section 1 of the Constitution, and probably the rest of it. This section was introduced almost verbatim from the Articles of Confederation, except in the articles, the section began with a discussion of people convicted of "high" misdemeanors. Get it, yet? The Federalist Papers show that this section was extricated because the Framers wanted states to honor the trial and conviction results of any sort of court proceeding, really, including civil verdicts.
Thus a man fleeing incarceration or a stiff $ penalty in one state would find no safe haven in another state, as those states would be obligated to return the guilty man to local authorities or fulfill the same sentence.
In other words, you have no sense of the context of this section, and therefore have no idea what it means.
Never mind that your misreading of the section would actually result in the DIRECT VIOLATION the "full faith and credit" clause, by allowing one state to disregard the "court" findings of another state. That doesn't make sense, mind you -- I'm just following your interpretation to its full, ridiculous outcome.
Read more constitutional law literature.
hithere3
oops -- that reply was for fenngibbon
periscope
The American public needs a rudimentary scientific education. Obviously, many don't know much about biology. Homosexuality is seen throughout the animal world in land and sea creatures, and has been a fact of life from the beginning of recorded human history.
It is estimated that 10% of the human population (probably more), are gay. To discriminate against people because of their sexual preference is ignorant and offensive.
And if we can "vote out marriage for gay people," today, why can't we vote against some right white men want tomorrow, when the white race is no longer the majority in America?
Aslanleon
"It is estimated that 10% of the human population (probably more), are gay." Actually, thebest studies in the United States indicate that the figure is around 2.5% for men and around 1.5% for women. Try to keep up with current science.
Chiwuwu
So can we will vote against what some right wing men want tomorrow?
DragonScorpion
I believe it is around 2%, though probably more. In fact, it appears to be about the same as the Jewish population in the United States. So let's not marginalize, too much, shall we? Afterall, just because a minority is small doesn't mean they are undeserving of equal treatment and full citizenship. At least, that's my view on it.
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Brady01
This article is a total misrepresentation of what you call the "bow out" (and I call the judicial minimalist) movement. You say that the minimalists oppose some liberal court decisions on abortion/gay rights/etc. out of concerns that it is the wrong political strategy, and the decisions would have more wait if the judges waited for more popular support. That's not at all what the minimalists are actually saying. Minimalists believe that the job of the judiciary is to interpret the law as it was intended, not attempt to mold the law to serve their own ideological or political interests. Minimalists are aware that judicial overreaches can come from left leaning or right leaning courts, and generally prefer to let the people's elected representatives legislate, not a small group of elderly robe-clad elites.
Most true minimalists support Brown v. Board of Education, as it enforces a Constitutional Ammendment that was clearly binding but had been ignored almost from its enactment. Most minimalists draw the line at Roe v. Wade because if one can find in the Bill of Rights an unexpressed "right to privacy," and in the "right to privacy" and unexpressed right to an abortion, than a court with different ideological leanings could mutilate the Constitution in any number of ways from eliminating the minimum wage to gutting envirnonmental protections.
Minimalism is often associated with conservatism, because a lot of constitutionally wobbly cases in the 60's and 70's favored the left, and the right has become very adept at complaining about "activist judges." But the reality is that conservatives are guilty of their own brand of judicial activism. Consider Bush v. Gore or conservative decisions on gun rights that have little regard for the actual language and intent of the Constitution. ("Well regulated militia" = individual gun rights.) True judicial minimalism is neither liberal or conservative, just democratic.
Cass Sunstein, a Harvard Law professor and Obama friend and advisor has written some really good articles on this subject for anyone interested in reading more about judicial minimalism.
menckenlite
Cass Sunstein is a clown.
thebaker
In other words, if you disagree with the majority, let the courts take care of it for you. If the courts rejected gay marriage, I'm sure Ms.Hirshman would have a much different opinion.
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hithere3
That "dude" lived during a time when slavery was legal and women couldn't vote.
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redfilmstar
citing social injustice back when the founders framed our constitution is not a legitimate argument, as they had to work within the realm of their society's norms. Many of them spoke of abolishing slavery and giving women equal rights, they just knew it was not going to be an over-night process
hithere3
That's precisely the point, redfilmstar, and grumpy acknowledges it...
Context matters.
But what matters even more is plain ol' TEXT.
sonofloud
One of my favorite bumper stickers here in CA:
"When do I get to vote on your marriage?"
Civil rights have never been granted by a popular vote, the very idea is absurd. From the womens movement to the civil rights of the 60s, it was and is the responsibility of the courts to provide equal protect for everyone. Not to abdicate their power to a bunch of religious fanatics.
JohnnyBeagle
So the voice of the people should have no place in the area of what the courts define as "civil rights"?
Granite
Okay, let's use your idea: All in favor of slavery raise your hand!
LoneLiberalOkie
Precisely. You're catching on and beginning to grasp the concept behind the Judicial Branch of our government.
Dave13
Thomas Jefferson said it best..."the rights of the minority should never be voted on by the majority."
Brady01
Granite, you're missing a key distinction. Slavery is specifically banned by the 13th Amendment to the Constitution, and there can be no debate on the constitutionality of this. There can be a lively debate over whether any part of the Constitution prohibits defining marriage as exclusively the province of a man and a woman.
The 14th Amendment (with its equal protection clause) is often cited as a potential constitutional prohibition on forbidding gays to marry, but this is far from certain. I am open to the argument that the Amendment requires the establishment of some legal framework to be sure that gay and lesbian couples do recieve the equal protection of the law, but I'm not convinced that the Constitution requires this to be called marriage. Marriage is a lot more than a series of legal protections--it also is a measure of societal acceptance of gay and lesbian unions as interchangable with heterosexual unions. This has far reaching societal consequences, but doesn't have anything to do with "protection of the law." Therefore, I think that marriage equality requires a legislative, not judicial solution.
This is simply my own (layman's) legal opinion. Others may feel that "equal protection of the law" does require marriage, while still other people may subscribe to the theory of original intent, and point out that those who wrote and ratified the 14th Amendment would have vehemently disputed the idea that it provided any protection whatsover to gay or lesbian relationships. Adherents of this (perfectly respectable, in my opinion) school of thought would a suggest that a new Constitutional Amendment would be needed to enshrine gay marriage in the Constitution, obviously a political impossibility.
In the heat of an emotional political battle, it can be tempting to view the Constitution as simply a means to a political end, but this is a terrible mistake. When we use the Constitution (and the judicial system in place to interpret and defed it) as a tool to get our way without regard to what the document actually says, we cheepen a document that has guided our nation for 222 years. This will inevitably result in judicial decisions that we liberals find to be a mockery of what the Constitution actually says. And with four arch-conservative members of the court in place for the next decade or so, is this really a game we want to play?
Goodkind
Democracy is not the enemy. It's freedom. Initiatives and referenda are what helped win the right for women to marry.
If you put single payer to a popular vote, it would probably pass.
Some things just should not be on the ballot. The SCOTUS should rule on it. But even if they don't, that's no reason to admonish direct democracy. James Madison was a tyrant. Can you imagine if we never had the freedom to vote on anything directly? We'd be 100 years behind where we are now.
Our two-party system is a total dictatorship. Can you imagine what it would be like if it was ALL WE HAD?
Don't go crazy over this result people. We will learn from our mistakes and we will self-correct.
REPRESENTATIVES ARE DENYING GAYS RIGHTS RIGHT NOW AS WE SPEAK. You don't hear anybody tearing representative democracy a new a**hole, do you?
Baddchild
Periscope,
You make a stupid arguement. For one, you are confusing sex with marriage. I'm sure homosexuals love that you compare them to the animals. An argumement which actual goes against the gay marriage concept. It's a "fact of life" that males are the dominant species in the animal kingdom and monogamy is not a dominant trait of the animal kindom. Do wan this to be common place among humans too? Do you want humans to go around taking mates at will? Do you want to put females into that subserviant catergory? I think women deserve better. In the animal kingdom the main goal is the survival of the species..... something that homosexual sex doesn't provide.
What are you guys complaining about. No one said they can't marry, there is nothing stopping anyone from getting married. Animals don't get married periscope, humans do, so stop insulting gays. And as the history of man has shown, marriage is between a man and a woman.
robwriter
What most of human history and current culture has shown is that marriage is between a man and a woman and another woman and another woman --a harem. Or need I remind you about Solomon and his wives and concubines? History has shown that boys used to be castrated to sing in choirs. Historically speaking, human slavery is a social norm. Historically, most people never learned to read. History "shows" lots of shit. What's your supposed point? If you don't like homos, just blurt it out and go on. We don't need your morally stupid "history" lesson or any of the rest of your ignorant recitation.
onward-and-upward
Firstly, a homosexual person wouldn't want to marry a person of the opposite sex anymore than a heterosexual person would want to marry a person of the same sex.
Secondly, "the history of man has shown" that marriage can be between a man and a woman, or a man and several women, or arranged between two strangers, or based on financial incentives (dowries), or in ancient Hebrew law, a requirement between a man and his deceased brother's widow.
"The history of man" has also shown us that women are inferior (something you yourself disavow), black people are inferior, killing a man because his grandfather wronged your family generations ago is commonplace and allowable, and leeches are the best way to cure a fever. All of these theories are now considered antiquated, and in many cases, due in part to decisive action on the part of a judicial body.
leftistmenace
Very well said!
Baddchild
ok grumpy, again, you can't claim one part of the animal kingdom and disavow the rest. We have laws against rape because... again, we are not animals. Again, gay people HAVE equal rights, they can get married... marriage is defined as a man and a woman, no one is stopping them from doing that. No, creating gay marriage would not turn anymore people gay than not creating it. heck having sex or falling in love with whomever one choses doesn't make them gay or striaght. what makes one gay is choosing to declare yourself as part of a class of people who are seeking special treatment, i.e marriage, affirmative action etc.
Do you think churches should be forced to perform gay marriage?
NorCalGladiator
Good work on the SLIPPERY SLOPE FALLACY
Typical anti-gay comment to make about how "if we let this happen.... all of this will happen."
History has shown for thousands of years that men has made other men be slaves. Less than 150 years ago we abolished that in this country.
This Civil Rights Movement, just like many of the rights movements before it, will not give up until the right to marry is for all humans, regardless of who they are marrying (and I left that statement open for you to insert "oh, so they'll be able to marry a dog now?).
and you are an idiot. Males are not a species in the animal kingdom, and there are many animal species where the female is the dominant sex.
And yes homosexuals can get married, you are right. However, their soulmate is not a part of the other sex. Therefore they can not get married to the person they want to be married to. They can not get the priviledges a legal marraige grants them. That is the fight worth fighting.
Baddchild
I'm not using a slippery slope argument, I'm saying periscope can't pick and choose the animal kingdom arguements that fit his ideal and ignore the basic insticts of animals. We are humans... not animals.
You are right that they can't marry their soulmate but again, marriage is a man and a woman. They can fight for the same rights but they already have that, they can enter into a marriage with someone from the opposite sex. They already have those rights if they choose to be with their "partner", infact they have more rights because they can't be discriminated against by law for their choice of who that partner is, whereas married people can legally be discriminated agianst.
NorCalGladiator
please show me where married people can be legally be discriminated against.
And we humans are a part of the ANIMAL KINGDOM.
"Do wan this to be common place among humans too? Do you want humans to go around taking mates at will? Do you want to put females into that subserviant catergory?"
That is a slippery slope fallacy.
"They already have those rights if they choose to be with their "partner", infact they have more rights because they can't be discriminated against by law for their choice of who that partner is, whereas married people can legally be discriminated agianst."
And they can and are being discriminated against who their partner is because they cant marry their partner. They cant gain the privilegdes of a legal marraige. That is discrimination.
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Jpjayp
I'm confused. You criticize someone for using nature as a justification for an action and then you turn around and use history to explain that marriage is between a man and a woman? The amount of terrible things that were acceptable at given points in history because that the way things had always been is mind bogglingly large. Slavery? Religious persecution? Limitations on women's rights? If you're going to call some one out based on using a flawed line of reasoning, don't follow it up with your own.
jphy2k2
Your argument is fallacious.
None of your conclusions necessarily follow their premises. Your arguments are an appeal to emotion rather than logic. If you really want to call someone's argument stupid, you'd have to include yours.
A few things:
"Fact of life" is not a significant basis of proof. Nothing can be proven by being a "fact of life". That's like saying "well, everybody knows this is true, so it is."
The "history of man" means very little in an argument. Have you been around for most of human history? Do you have any idea whether the writings of human history have been influenced by biases? Can you prove that history is the best indicator for how we should live our lives? I assume we should all drive wagons with horses and farm the land? Or maybe we should still live in mud huts and forage, which predates the horses and the land? Or better still, maybe we should all live in caves?
The nature of history is that it tells about the past, but does not indicate the best methods for the future. That's why we progress and history changes.
Last, it is rarely a good idea to make a statement this is completely unsupported by the preceding information. "And as the history of man has shown, marriage is between a man and woman." How do we get here?
Learn to write better and you'll become a better advocate for whatever cause you're supporting... As it stands, I'm not convinced of whatever side you stand on.
grimption
Well put, jphy2k2; thank you for bringing a dose of logic to this discussion.
ryking
There are over 1,100 legal rights and privileges that heterosexual couples get when they get married. Those rights are denied homosexual couples because they are denied the right to get married.
Why don't you crawl back under your rock, you ignorant moron?
onward-and-upward
Since this became a hot issue, I have wondered from a practical standpoint why something that in no way affects ~90% of the population would even be put to a popular vote?
Should we put tattooing to a vote? I don't have nor want a tattoo, and the majority of people do not either, but should I be able to assert my democratic voice to close down tattoo shops? Even if I personally didn't like tattoos, why would it have anything to do with me?
I recognize that getting a tattoo is a choice, whereas sexual orientation is not, but I fail to see the practical difference between the two from a legislative standpoint. Neither affects me in any way, as a heterosexual, non-tattooed person, so who cares whether I "approve" of homosexual couples? It's none of my business.
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Aslanleon
Can my nephew refuse to hire someone as a waiter because he has nudes, a picture of Chairman Mao, and an obscene saying on his face? I'm just asking.
onward-and-upward
If your nephew owns his restaurant, then that would be up to his discretion; however, your nephew has no bearing regarding whether the applicant chose to get the tattoos in the first place. If a person chooses to get tattoos in a clearly visible place (i.e. his face), especially depciting images that could be controversial, one could anticipate that they could negatively alter some people's perceptions of him. Still, he (the applicant) had the right to make that choice.
However, I'm not sure if you were trying to draw a parallel here, but one's sexual orientation is not a matter of choice, and refusing to hire someone because s/he is homosexual would be a matter of discrimination, not discretion.
DragonScorpion
I think you could fairly argue that this would be up to the discretion of the employer as people with offensive tattoos are not a protected class in this country and such a waiter could reasonably cause distress to customers.
I used to know a blogger on a local forum who reminds me so much of you, it's uncanny. He used to argue that he shouldn't have to hire homosexuals or "anyone who acts like a homosexual". I was curious if maybe this is what you were suggesting here...
loloo33
I don't believe in gay marriage, but I am not religious either. I just think it's irrelevant to the world, it's not normal for human race. There are too many real problems we should be worrying about not some 2 guys who want the world to recognize their marriage. To put out this nonsense in such a big deal for a failing country to fix is selfish. What about the fake gay people, who later realize they are not gay or not gay enough, any laws for that???? it's a nonesense revolution movement.
hithere3
Everyone's at least a little gay, including you.
Aslanleon
Since you think being gay is perfectly all right, I have to ask: is that a compliment or an insult? If it's a compliment, it's very nice of you. If it's an insult, it suggests that you don't really believe that gays are perfectly all right.
hithere3
no one's perfectly all right, aslanleon.
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hithere3
american conservatives are really an amalgam of christian fundamentalists and small-government, laissez-faire economists... the mix sometimes results in some oxymoronic points of view in GOP platforms.
ban abortion! (but less government interference in people's lives) ... and such.
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hithere3
grump: If we could replace the GOP with it, I would be overjoyed, as it would mean the 100-year-old American affair with arrogance, ignorance, intolerance (a.k.a. religious fundamentalism) might finally be over.
Aslanleon
hithere 3 - " . . . american conservatives are really an amalgam of christian fundamentalists and small-government, laissez-faire economists.." Since there are too few fundamentalists to really have a major impact in our society, that is not strictly correct. However, since you probably assume I am a fundamentalist (which would cause much merriment among my fundamentalist friends), I'm not sure your judgment is realistic.
hithere3
that's fine. if you don't believe me, feel free to conduct a "do you believe evolution is a valid theory?" surveyl among your local members of the GOP, then the Democratic Party, and see what the results are.
oh hey, it's already been done for you.
http://www.gallup.com/poll/27847/majority-republicans-doubt-theory-evolu tion.aspx
there is no reason to doubt evolution unless you believe the earth is about 6,000 years old. i feel sorry for fundamentalist christians, frankly. they're pigs and ignorance is their mud.
Aslanleon
I looked at the original poll. 40% of all Democrats also do not believe in evolution. Furthermore, the pollsters warned that it depended how you asked the question. They then gave several examples of how to ask the question differently where they got answers that around two thirds of Americans didn't believe in evolution as it is usually defined from a strictly scientific basis. Myself, I think it's the most likely explanation, but then again I'm not a fundamentalist.
Chiwuwu
Oh - now that is precious. Fake gays.
Dave13
Yes there are laws for that...it's called divorce. If a man decides he doesn't want to be married to a man anymore...he would get divorced. Just like if my wife decides she doesn't love me or want to be with me anymore. Half of this country is divorced...not sure how you missed that one. Any other brain busters?
hithere3
Forget liberals and conservatives, Democrats and Republicans for a second. Forget justice.
The U.S. Constitution does NOT allow the federal government to regulate marriage in any way -- except in one circumstance: by passing a constitutional amendment, with the assent of a supermajority of state legislatures.
Even if marriage is fairly argued to be a civil right, the constitutional amendments having to do with civil rights do not mention or even hint at marriage.
If the U.S. Constitution doesn't say what you want it to say, amend it. That's WHY we have the amendment process.
This goes for everyone, no matter what they think about gay marriage. Federal laws are unconstitutional, including those that reward or punish married couples on tax forms.
The situation we now find ourselves in is incredibly messy. Those who favor an extrication of government from marriage should be lauded; however, the states may do whatever their voters would like. That is the system of governance we have. You can't simply ignore this when doing so is convenient to your cause.
Dave13
You're right..forget liberal vs. conservative...and you know what, forget your comment. Their is already an amendment in the constitution. It is right after the 13th...and just before the 15th. It is called "equal justice under the law." Read it. You might learn something. It prohibits the government from giving me rights while denying the same rights to someone else. I am married. I am heterosexual and my sister-in-law will never be able to have the same rights as me because of her sexuality. Done. That violates the 14th amendment.
blinky
The irrational fear of the gay is mostly a geezer affliction...Gay marriage advocates have time on their side.
Aslanleon
Recent polls suggest that about 57% of people under 25 favor gay marriage. History tells us that people become more conservative as they age. My generation voted overwhelmingly for McGovern. Most of them vote Republican today. And we only have to change the opinion of about 15 % of this age group to change that yes into a no. I'd say history belongs to us.
hithere3
they do become more conservative -- about fringe issues. not civil rights.
if you can't see that the country is changing, well... i don't know what to tell you. 50 years ago it was common to see "blacks/jews need not apply" in job classifieds. sodomy was still a crime, and gays and lesbians hid their identities from, well, everyone.
our country is moving in the right direction. that is hard to see sometimes, particularly with all the talk of cataclysm lately.
Aslanleon
Blacks and Jews need not apply in job advertisements and you say this was common? Totally illegal in every state I am aware of. Do you have an actual source for public advertisements in 1959 that stated this? I read the newspapers avidly at the time and during the fifties and sixties I lived in several states, including Southern ones, and can't remember anything of the sort. I do remember that there were separate categories for mens' and womens' jobs. I'd be very interested in seeing any examples of this in a newspaper or other public advertisement, let alone its 'common' prevalence.
hithere3
you need to pick up a history book some time. your ignorance is embarrassing.
DragonScorpion
And you'd be wrong. But, by all means, keep telling yourself this.
I'd like to elaborate some flaws in your arithmetic. If what you suggest here were true, that would put the numbers of older folks that approve of same-sex marriage a generation from now at 42%. We'll assume that the under 25 folks stayed at the same 57%, though I can assure you with much certainty the number will be far higher, which you can certainly deny if societal trends mean nothing to you.
So, put your 42% older folks with 57% younger folks and I'd say history is with us. :D
Janotec
I guess you don't think the public is qualified to make laws. Your rather idiosyncratic reference to Madison is the customary, almost trite, sweeping away of public opinion.
Isn't it a bit rich and condescending to stereotype contrary public opinion as the stuff of demagoguery? Why, I could say the same about your redefinition of infancy and marriage, and about your cheapening of the whole concept of "civil rights."
For that matter, why can I not conspire with other like-minded pundits and academics to have the federal courts redefine all human fetuses as U.S. citizens with full civil rights? Or married heterosexual unions as the only legal predication for co-habitation?
And when the protests and the marches and the obligatory referendums get voted on in anticipation of such court pronouncements (which are not without precedent), then will you stay consistent with your argument, or will you turn democrat, instead of the oligarch you are, wanting actual rule -- not just adjudication -- from blackrobed savants appointed for life?
Perhaps the public isn't qualified to choose representatives either.
hithere3
janotec, in mentioning the name of a founder, you should be more cognizant of why madison and his brothers created a judicial system that could override the legislature.
while it is good and right that majorities rule, majorities are also mobs, and are capable of acting as such. there are checks against bullying behaviors in our governmental system.
tated-
Thank you for this piece. The majority should never legislate the rights of the minority.
Aslanleon
It's a good thing that the Supreme Court already decided this issue in 1972 then, because we can stop worrying about it.
Thank you.
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