Thursday, March 28, 2013

Marriage Equality

Does anybody feel any pressing need for me to weigh in on one of the most important issues of the day? If so, here it is: I believe gays (lesbians, bisexuals and the transgendered) should be able to take for granted every right I take for granted as a heterosexual—including the right to marry, raise children and live life free of interference from people who object to something that is fundamentally none of their business; rights, like those to life, liberty and the pursuit of happiness, that are conferred not by the arbitrary whim of a political majority but as a matter of birth, and that, while long- and oft-denied, have been forever and always existing.

I don't pretend to know everything, and I often don't know anything, but when confronted with such an issue, I try to approach it the same way I would approach selecting the best supporting actress of 1937—with, hopefully, as much humility and compassion as I can muster, and erring on the side of what makes life easier for others without making it any harder for me or anybody else.

That, of course, is just my opinion, something I don't often proffer in this particular forum—generally speaking, it's not that kind of blog. But, well, sometimes you've just got to say what you've got to say.

Now back to our regularly scheduled classic movie trivialities.


KC said...

Yes--I agree that we should all have the right to take these things for granted!

Anonymous said...


Mythical Monkey said...


You know, I confess I'm fifty-one years old and no one has ever called me that before, maybe because I've been married for twenty-three years or maybe because I'm 6'2" and weigh 189 pounds and no one's ever had the guts, but if what I wrote prompts you to anonymously write that and run like a cringing coward, then what the heck, I'll wear it like a badge of honor. Thanks!

Who Am Us Anyway? said...

Well said, Mr. Mythical, well said as always. Say, you ought to write a book. Oh wait -- you already are. Speaking of which, any updates that can be shared? I get it if they can't be ...

Who Am Us Anyway? said...

p.s. oh to be 51 again!

Clarence Darrow said...

I wanted to add a couple of thoughts.

I could not agree with you more, mister monkey, so I'm not writing about the issue.

I wanted to write about the subtleties of the federal legal system generally, and the Supreme Court particularly, and point out the interesting "ripple effect" of constitutional decisions. I'm not offering any learned analysis, just pointing out that the Supreme Court juggles important contrary things in a helluva lotta cases.

Assume for the moment a crazy thought. Assume Supreme Court with nine justices who believe that a limitation of state-sanctioned marriage to one-man-one-woman couples violates the Equal Protection clause. I believe that, and my answer to Justice Scalia's question "when did the limitation become unconstitutional?" is "the second that the Fourteenth Amendment was ratified." Just because it was dangerous for anyone to vindicate those rights for another century doesn't change the effect of the law. And the amendment's failure to limit equal protection to some race-based protection means that J. Scalia's fave, the plain language, should extend to everyone. But I digress. . . .

Assume that all nine believe Prop. 8/ ban on same-sex is unconstitutional.

The thorny standing issue isn't a minor thing that can easily be overlooked, but it represents something very real and very constitutional -- with broad implicatons. There is a "case-or-controversy" requirement in Article III -- our Supreme Court and the inferior federal courts don't offer advisory opinions to guide the govt and folks generally, they decide disputes, with something real at stake, by parties with a stake who will zealously represent the interest in dispute.

The advocates for the proposition will suffer no real harm, specific to them, if they lose. They are effectively memebers of the public. And the Court has long held that members of the public, with their generalized interest but lack of an imminent, remediable harm, just don't have standing. There's no case or controversy. This also benefits the court system generally -- every law has its proponents and its detractors, and wholly fuck if they could all sue and defend.

But California has a ballot initiative to let the people go over the state government's head. It presupposes that some initiatives will have no government support -- they impose by initiative a rule the government rejects. So the state expressly authorizes the proponents of initiatives to defend them in court -- it recognizes them as advocates with an interest.

Does the Supreme Court recognize that as standing? If it doesn't, does it relegate many, many challenges to initiatives to the federal courts only for opponents affected by the initiative -- but not to any particular supporter? So maybe it wants to recognize there's a designated advocate. But two hundred years of jurisprudence has defined case-or-controversy in a different way. Does the hypothetical Court follow those federal cases, and subordinate its 9-to-nothing desire to invalidate Prop 8? Does it follow the logic of its standing cases and lose an opportunity to rule on something important?

Clarence Darrow said...

Let's not even consider that justices might ignore what they want to ignore in order to do what they want to do. It's just too sad a thought....

Now, Mythical Monkey:

I want to apologize for not calling you a faggot much earlier in our friendship, steeling you to the process and offering you an insight that hearing it is such a self-stimulating, smugness-inducing transaction.

You plainly didn't spend a lot of time riding on the bus in high school, sitting next to the left tackle for your high school team while reading your script for the spring musical. You would'a heard it a lot. Not being at any immediate risk of bodily harm [and knowing that the epithet-tossing guy was rarely (but sometimes) a "beat-you-up" guy], I immediately felt so superior that it really did give me a demonstrable. . . empowerment.

And, if I'd called you a faggot, you, of course, would'a taken a swing and accidentally hit Bellotoot, blinding him. Which, ten years later, might have given him a more attractive target for DOn Rickles. And he would'a kissed us. And some guy at a rest stop on eht New Jersey turnpike (going the wrong way) would'a yelled "faggot!" and beaten us up. Or we him. and then. . . .

You know, it's physically uncomfortable to type that word.

PS Although I never intercoursed her, I did have intimacy with the bus/football player's girlfriend.

I love the Internet

Clarence Darrow said...

I get such a thrill writing my free-form, barely a thought before I type mini-essay in response to your thoughtful, well-written piece.

It's so. . . us

[as many might infer, I know the Mythical Monkey personally. And professionally. Rickles-ly, if you must]

Mythical Monkey said...

I think it's entirely likely the Court will say, in the Prop 8 case, that the Petitioners have no standing -- I don't think a state can say for the purposes of federal constitutional law what constitutes standing, harm or a case and controversy, even if it means that the state can essentially choose to torpedo a democratically-enacted law.

Interestingly enough, the Court will (I think) have to say that no one is harmed by the existence of gay marriage -- certainly not the petitioners who supported the ballot initiative in the first place. Certainly they're not harmed in a case and controversy sense by a court declaring their preferred law to be unconstitutional -- that would pretty much render the case and controversy requirement a nullity.

But maybe the Court will resort to some sort of judicial magic to reach the issue. Wouldn't be the first time.

Don't think they'll reach the issue, though, just to say it's okay to discriminate against gays -- I can't see Kennedy going that route.

Mythical Monkey said...

I believe that, and my answer to Justice Scalia's question "when did the limitation become unconstitutional?" is "the second that the Fourteenth Amendment was ratified." Just because it was dangerous for anyone to vindicate those rights for another century doesn't change the effect of the law.

That's my interpretation, in a Jeffersonian/Apostle Paul/"For now we see through a glass, darkly, but then face to face: now I know in part; but then shall I know even as also I am known" sense of it. Just because in our ignorance and prejudice we didn't always perceive that equal protection would apply here doesn't mean that it doesn't.

As you say, the plain language doesn't limit equal protection to race-based situations, and Scalia is violating his own principle of "plain language" by looking for the original intent of amendment's framers. But then, as I have often argued, Scalia is just as full of it as anybody -- he just won't admit it.

Mythical Monkey said...

Say, you ought to write a book. Oh wait -- you already are. Speaking of which, any updates that can be shared?

Quite frankly, the writing isn't going as quickly as I had hoped, Who -- but then my writing never goes as quickly as I hope.

It's not that I can't write quickly, it's that I can't think quickly. If you could perform a Vulcan mind meld with me, 19 minutes out of 20 you'd hear nothing but a dial tone in my head.

(By the way, "dial tone" -- does anyone under the age of 30 even know what that phrase means?)

mister muleboy said...

Listened again to oral argument in Prop 8 and DOMA cases.

I'm as troubled by the standing issue in DOMA -- maybe more so.

As for Scalia, J. being full of it : it might not require intellectual dishonesty, since the issues of standing are so different, but ain't it curious that Scalia, J. wants badly to get to the merits in Prop 8 case [where the votes to declare a violation of Eq.Protect. are likely not there], but really, really wants to avoid getting to merits in DOMA -- where the votes are there to strike it down on federalism grounds.

As I say, intellectual rigour and integritymight be present -- but might be absent too. . . .

Mythical Monkey said...

By the way, when I say Scalia is full of it, I mean that my answer to his question "when did the limitation become unconstitutional" would have been "about the same time, presumably, that you decided the Second Amendment applies to rifled gun barrels even though the rifled gun barrel wasn't invented until 70 years or so after the Second Amendment was written."

Or maybe, less contentiously, at the same time property rights were changed, without a Constitutional amendment, to allow overflights of airplanes and satellites when such would have been trespassing in the 18th and 19th centuries when the 5th and 14th amendments were written.

If Scalia were as intellectually honest as he claims to be, the Court couldn't even have arrived at Marbury v. Madison, much less Brown v. The Board of Education.

Not to mention that if rigidly applied, Scalia's approach would render the Constitution as unworkable as the Articles of Confederation it replaced. You'd either have to abandon it altogether and go with the British system, or hold a Constitutional convention and start over. And given that it's worked pretty well for over 200 years, with only one Civil War necessary to work out the kinks, I think starting over would be a bad idea.