By Dr. Ray Kessler, who is, incidentally, a retired Prof. of Criminal Justice, former defense attorney and prosecutor is your host. I am also a part-time instructor in Criminal Justice at Richland College, an outstanding, 2-year institution in Dallas, TX.
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Tuesday, February 07, 2012
9th Circuit Overturns Calif. ban on gay marriage 2-1.
Not unexpected. Given existing precedents, Lawrence, Roemer, etc., this is the correct constitutional result.
Heterosexual marriage provides a naturally wholesome stability to society. Especially when it comes to the rearing of children. Leave it to the 9th circuit's unlimited arrogance to pervert the meaning of this traditional institution along with its constitutional legitimacy.
Looking perhaps for some potential clarification or resolution from this decision on gay marriage, I don't think it is going to happen. Perusing a few law blogs for some professional insight it appears this whole thing only has limited applicability. From Volokh:
"The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires “strict scrutiny” or “intermediate scrutiny” and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis." Geez.
And I would agree that a traditional family setting can be ideal for kids, but we've been lacking the high ground on that one for a long time, so gay marriage or civil unions don't really bother me. Liberty!
I do believe in the separation of church and state. For this reason, I don't have an issue with homosexual civil unions. Regardless of today's loose definition of marriage, however, Holy Matrimony is limited to heterosexual unions as per our culture's monotheistic religious beliefs. I'm convinced same sex unions will be a non-issue one day. But for older folks like myself, equating such unions to traditional marriage is absolutely offensive to my core sense of right.
Heterosexual marriage provides wholesome stability to heterosexual people . . . and does the same for homosexual folks. Holding that legitimization of homosexual unions, whether through civil or religious ceremony, somehow destabilizes heterosexual unions is argumentatively fallacious. At the heart of that argument is yet another "control" effort brought to you by religious zealotry. The incidence of homosexuality may, to some extent, be a gift of one's genes and/or upbringing, but it's not communicable. Let's keep irrational fear out of this discussion.
Thanks everyone. jr: You are right about the limited nature of the decision. However, the Supreme Courts precedents in Loving, Roemer and Lawrence and other cases seem to require finding any limits on gay marriage, that are not also applied to heterosexual marriages, are violations of equal protection and perhaps substantive due process. Under those precedents, states must provide for gay marriage. The Supreme Court just hasn't said so yet. Given the current personnel on the Court I would expect such a ruling to be 5-4 with Kennedy voting for gay marriage. Of course, the Court could get around those precedents and come up with a different result. Finally, please try to avoid what could be interpreted as personal attacks on other posters.
Heterosexual marriage provides a naturally wholesome stability to society. Especially when it comes to the rearing of children. Leave it to the 9th circuit's unlimited arrogance to pervert the meaning of this traditional institution along with its constitutional legitimacy.
ReplyDeleteLooking perhaps for some potential clarification or resolution from this decision on gay marriage, I don't think it is going to happen. Perusing a few law blogs for some professional insight it appears this whole thing only has limited applicability. From Volokh:
ReplyDelete"The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires “strict scrutiny” or “intermediate scrutiny” and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis." Geez.
And I would agree that a traditional family setting can be ideal for kids, but we've been lacking the high ground on that one for a long time, so gay marriage or civil unions don't really bother me. Liberty!
I do believe in the separation of church and state. For this reason, I don't have an issue with homosexual civil unions. Regardless of today's loose definition of marriage, however, Holy Matrimony is limited to heterosexual unions as per our culture's monotheistic religious beliefs. I'm convinced same sex unions will be a non-issue one day. But for older folks like myself, equating such unions to traditional marriage is absolutely offensive to my core sense of right.
ReplyDeleteHeterosexual marriage provides wholesome stability to heterosexual people . . . and does the same for homosexual folks. Holding that legitimization of homosexual unions, whether through civil or religious ceremony, somehow destabilizes heterosexual unions is argumentatively fallacious.
ReplyDeleteAt the heart of that argument is yet another "control" effort brought to you by religious zealotry. The incidence of homosexuality may, to some extent, be a gift of one's genes and/or upbringing, but it's not communicable. Let's keep irrational fear out of this discussion.
" ... brought to you by religious zealotry."? I believe the term for this accusation is projection. There's nothing fanatical about morality.
ReplyDeleteThanks everyone. jr: You are right about the limited nature of the decision. However, the Supreme Courts precedents in Loving, Roemer and Lawrence and other cases seem to require finding any limits on gay marriage, that are not also applied to heterosexual marriages, are violations of equal protection and perhaps substantive due process. Under those precedents, states must provide for gay marriage. The Supreme Court just hasn't said so yet. Given the current personnel on the Court I would expect such a ruling to be 5-4 with Kennedy voting for gay marriage. Of course, the Court could get around those precedents and come up with a different result. Finally, please try to avoid what could be interpreted as personal attacks on other posters.
ReplyDeleteA slippery slope of sorts.
ReplyDelete