The IUSB Vision Weblog

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Iowa finds a right to gay marriage in the Constitution that eluded everyone else for 150 years.

Posted by iusbvision on April 4, 2009

Brian Sikma at Hoosier Access:

When traditional marriage supporters advocated for a state marriage amendment in 2008, Speaker Pat Bauer argued that such a constitutional amendment was unnecessary and redundant in light of Indiana’s existing state law.  Proponents of the amendment responded by saying that the same judicial reasoning that allowed courts in Massachusetts and elsewhere to challenge the constitutionality of marriage laws could be used by Indiana courts.  The Iowa Supreme Court’s decision to create a constitutional right to same-sex marriage and impose that new definition on the state proves the Speaker wrong, and marriage supporters right.

snip…

Although this session of the General Assembly failed to act on a marriage amendment, with Senate Judiciary Committee Chairman Richard Bray (R) being responsible for his committee’s failure to hear the matter in the Senate, the Iowa ruling will hopefully spur legislative leaders to action next session.

We posted a brilliant legal argument against this when activist Connecticut judges decided to change the law just because they wanted to HERE; it is a great read.

This problem goes way beyond marriage and this kind of activity has consequences that those who support activist rulings could soon regret. So a simple majority of judges on one court changed the legal definition of marriage over that of the legislature and the people. If actions like this can go unanswered, a simple majority of judges can do anything; they could even redefine murder as “picking your left nostril on a Tuesday”.

How is this bad for the left? Well what if conservative judges decide to abandon their usual philosophy of judicial restraint and become conservative activist judges who will invent law at a whim? Imagine all of the fun they could have with your agenda? This is why judicial activism is bad, because it progresses and progresses to the point where we have judicial tyranny. Now activist judges are ruling to over rule legal treaties and other laws. Some are even butting into presidential war powers. Eventually the other two branches are going to have to push back by stripping the lower courts jurisdiction.

As far as gay marraige is concerned, thiswriter is opposed to creating group constotutional rights out of this air. The Founders never intended or approved of such things so no case can be made that the Iowa or Federal Constitutions framers ever intended this.

To put it in simple terms, there is no right to marriage period, heterosexual or otherwise and there never has been. Rulings like this cloud the very nature of rights and makes them easier to violate in the future.

As this writer has stated before:

Rights are not in reference to groups, they are in reference to individuals. For Example – if I have a right to get married, if no one will marry me than my right to be married has been violated.

What is the contemporary meaning of marriage? It is a CONTRACT between a man and a woman and the State, and in some circumstances with the said couples deity.

That contract involves a marriage license. What is a licence? A license represents the sanction of the people of that state, or that states legislative majority if you will.

The simple fact is that the legislative majority decides by majority vote who gets their sanction and who does not and under what circumstances. There have been many such instances where a marriage license has been denied to straight white couples by states, so where were all of you saying that their constitutional rights were violated?

Would you FORCE the majority to give consent and sanction against their will? That seems to be what many are advocating. So much for Democracy and informed consent.

There is no more a right to marry than their is a right to have a Class-A drivers licence.

There is no genuine equal protection issue, because a straight man may get a state marriage license under most circumstances to marry a female and so may a gay man. A straight man can no more get a marriage license to marry another man than a gay man can. The law treats the gay man and the straight man exactly the same.

 

5 Responses to “Iowa finds a right to gay marriage in the Constitution that eluded everyone else for 150 years.”

  1. I cannot help but wonder — did iusbvision even bother to read the Iowa Supreme Court decision? Please be honest – please tell us whether you actually read the text of this decision (as opposed to an edited summary) for yourself. It is easy located at http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090403/07-1499.pdf (in Adobe format).

    [At this point we have to wonder if you even bothered to read the article carefully, or just generated this wall of text in advance that no one is going to read but the editor. It is obvious that this is what you did because you did not even attempt to address many of the arguments that we laid out. – Editor]

    This unanimous decision did not create a constitutional right “out of thin air”. To the contrary — this decision was a model of clarity, involving 69 pages of careful and thorough analysis.

    [In order for you to be correct about this, what you have to demonstrate is that those who authored the constitution, and those who authored the 14th Amendment did so with an intent to both create a right to marriage, and then create a right to gay-marriage. This is where your argument completely falls apart.

    Just because you “declare” that they didn’t create a right out of thin air….. you have to make a REAL argument that shows some historical and intellectually consistant thought that has a logical continuity. – For example: The courts, when they had a residue of integrity, knew full well that the 14th Amendment was NOT To be construed so as to give women the right to vote, which is why they had to pass the 19th Amendment.

    Below you mentioned as a part of the courts justification for what they did was that ‘women had more political power than gays in the 1970s’… so once again, if the 14th Amendment could not mean that women could vote so they had to pass the 19th Amendment to do it, how can the 14th Amendment be honestly, with logical historic continuity, be construed as to both create a right to marriage and then a right to gay-marriage??

    (We made the 19th Amendment point twice, so it’s harder for you to pretend that it isn’t there…)

    You see Phil, your argument gets destroyed with ease and this is what happens when you abandon intellectual honesty and engage in emotionally motivated, results oriented thinking. The ends justifies the means right Phil?? – Editor]

    To argue that there is no equal protection violation because the law supposedly does not target gay persons is absurd. I am familiar with this argument – just as a heterosexual man may not marry another man, so a gay man may not marry another man, and there is thus no equal protection violation. If one were to apply this line of reasoning to another context, one could argue that laws prohibiting mixed-race marriages (so-called “miscegenation” statutes) do not involve equal protection violations; just as a white person may not marry a black person, so a black person may not marry a white person, and there is thus no equal protection violation. This argument was laughed out of court by the US Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967); in Loving, the Court held that such statutes violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Yes, a gay man has the right to marry only a woman (just as a straight man has the right to marry only a woman) – but for the gay man, this is “no right at all”.

    [And as we indicated, there is no right to a marriage license at all for anyone, it is a contract with the state. If getting a marriage license was a right at all why is it that states have denied a marriage license to even straight white couples for several reasons as applied by state law. Where were gay activists saying that their rights were violated? This editor finds it amusing that the far left, or others who engage in such intellectual sophistry, is that you completely ignore points that you find inconvenient and pretend that they don’t even exist.

    By the way in Loving v. Virginia, mixed race marriages did not change the definition, meaning or function of marriage and in the case of black Americans, – HISTORY LESSON – Amendments 13, 14 and 15 were specifically passed to make it clear that constitutional protections extended to black Americans (not homosexuals and not give women the right to vote). Being black is a race, homosexuality is a behavior. The Loving case is a fine example of proper constitutional law. The Loving case did not create any right to marriage at all, as there were still a host of reasons states denied marriage licenses to even straight white couples at the time. Make no mistake about it, this same court that ruled properly in the Loving case, would toss the Iowa Supreme Court’s arguments out the window.

    Do me a favor Phil, I want you to go to the inner city in a dominant black populated neighborhood, explain to them that being black is a functional and moral equivilence to practicing homosexual behavior…see what happens. – Editor]

    The Equal Protection Clause of the Fourteenth Amendment is identical in scope, import, and purpose to the equal protection guarantee of the Iowa state constitution. The gravamen of an equal protection challenge lies in the assertion that two groups of people who are similarly situated in relation to the legitimate purposes of the statute in question are treated differently by the statute, with resultant adverse impact to members of one of the groups in question. Examination of the legitimate purposes of the statute is therefore central to the inquiry. Men and women do not get married merely to ensure procreation; they get married so as to express their mutual love and commitment to each other, to offer each other constant solace and emotional support, to pool their financial resources, to provide healthcare and other benefits to each other, to establish a stable framework in which to raise children (whether conceived “naturally” or “artificially”), and for myriad other reasons.

    The court conducted a searching inquiry into such issues as the history of purposeful and invidious discrimination that gay persons have suffered, the ability of gay persons to contribute to society on equal terms with heterosexuals, the status of sexual orientation as a characteristic that is central to the identity of gay persons, such that it “would be abhorrent for the government to penalize a person for refusing to change it”, and the history of relative political powerlessness that gay persons have suffered. Taking these factors into consideration, the court held that gay persons comprise a “quasi-suspect” class for the purposes of equal protection challenges, and that the challenged statute must therefore be analyzed under the “quasi-strict scrutiny” (or “intermediate-level scrutiny”) standard articulated by both the state court and the US Supreme Court in prior cases. The court noted that gay Americans currently possess less political power than that which women enjoyed in the early 1970s, when the US Supreme Court first heightened its scrutiny of gender-based classifications (see Frontiero v. Richardson, 411 U.S. 677 (1973)).

    [And so now it is the politics of group politics, which is straight out of the far left playbook, which is something else that those who wrote the 14th Amendment never intended. As we stated in the article, which was obviously too tough of a point for you to even attempt to tackle, rights apply to individuals, and not to groups for very important and substantive reasons, only some of which we stated in the article, which obviously you never bothered to read for comprehension.

    By the way Phil in Frontiero v. Richardson, if you bothered to read it, it was a decision that declared that women who serve in the military should get the same benefits as men who serve in the military. This may come as a shock to you, but homosexuality is not a gender, it is a behavior. The Iowa court’s use of this is another example of the Iowa court’s sophistry.

    Phil, this decision is easily torn to pieces by anyone who has taken a serious course in constitutional law. This decision is nothing more then results oriented sophistry in legalese. It smacks of much of the nonsense that is generated by the 9th Circuit, which has the most decisions overturned by the Supreme Court. – Editor]

    Having established the appropriate level of scrutiny to apply to the marriage statute, the court then considered each of the justifications invoked by the county in defending the challenged statute. One justification was the “promotion of procreation” – it did not take long for the court to point out that the marriage statute is both over-inclusive and under-inclusive; it is over-inclusive in that gay couples who choose to use artificial fertilization techniques to have children still may not marry, and it is under-inclusive in that heterosexual couples who are incapable of having children (post-menopausal women, many elderly men, and sterile persons) are nevertheless permitted to marry. Other justifications advanced by the county were also both over-inclusive and under-inclusive. The justification that the prohibition against gay marriage is intended to preserve traditional heterosexual marriage is possibly the weakest justification, in that this “justification” is really nothing more than a restatement of the very constitutional problem under challenge; the constitutional problem cannot be converted into the dispositive justification for the problem.

    Having considered and rejected each proposed justification for the discriminatory statute, the court concluded that the appropriate remedy was to strike that portion of the statute that prohibited gay persons from marrying. This change to the law will be implemented 21 days from the date of the opinion itself.

    There was nothing “elusive” about the right in question. The equal protection of the laws is the embodiment of a fundamental American promise, to treat persons equally. The court applied well-established equal protection principles, and well established adjudicatory analysis, to determine that the prohibition of gay marriage was unconstitutional. Far from “creating” a right “out of thin air”, the court refused to be cowed by the true – unstated – justification for the law (religious sentiment, which the court cannot consider) and delivered an analytically sound, clear, and unambiguous opinion. The Iowa constitution cannot be changed by direct voter amendment; the legislature will not be able to change the Iowa constitution until November 2012. Gay marriage is thus a reality in Iowa for the foreseeable future, and Iowans will soon see that this change to the marriage laws will not result in disaster, or an avalanche of frivolous litigation. It is likely that, like the citizens of Massachusetts before them, Iowans will reject any attempt to modify the constitution so as to incorporate sexual orientation discrimination in its provisions.

    For that, Iowans should be proud.

    PHILIP CHANDLER

  2. The Editor’s emotional attacks on my message illustrate that it is the Editor, rather than the Iowa Supreme Court, who is engaged in appeals to emotion and sophistry dressed up in legalese.

    [Actually Phil, I copped you back the exact same attitude that you copped us in your first comment, I did so to see if you could display a sense of introspective, your emotionally charged response gave me the answer I suspected – Editor]

    Apparently, the Editor belongs to that breed of constitutional scholars to whom the holy grail of constitutional interpretation is what some refer to as “original intent”. To the person fatally diseased by this paradigm [ad-hominen attack] , the constitution (state or federal) only means what those who originally wrote it intended it to mean, and the constitution should never be interpreted to apply to changes in society that were neither anticipated nor understood when that constitution was written [false choice argument] . Of course, the Editor is entitled to his or her opinion — but it would be refreshing if he would actually come and DECLARE that he believes that the Constitution should never be interpreted in this fashion.

    [Your argument is a false choice because that is not how original intent works. Original intent works just fine in applying chages in technology or other situations that the founders might not have been able to predict. This is done by applying previous history and their principles and ideals to new situations in a way that is intellectually honest to create a reasoned, honest and restrained trajectory to special current situations that may arise today. In that trajectory there is limited leeway in what is called “the prenumbra of the law”.

    This description is in my constitutional law textbook and is also used in lectures by justices on the court today. Phil with all due respect, you have demonstrated yourself to be most ignorant as to what “Original Intent” means. – Editor]

    I note that the Editor does not answer the first question I asked — did he read) the decision, or is he merely quoting from a summary of this decision generated by another person diseased by Scalia’s jurisprudence? [ad-hominem attack against who is considered the brightest legal mind on the court – how predictable – Editor]

    [Of course I read the decision, it is similar to most decisions that are a result of judicial activism, they decided how they wanted to rule, in spite of the law or the democratic process, and decided to interpret the 14th Amendment to mean anything they wanted it to mean, then whipped up a cute sounding decision to try and justify it while leaving out any genuine previous law or intellectually honest review of the historical meaning. – Editor]

    Isn’t it funny how easy it is to demolish such emotional arguments? [Isn’t it amusing that after making all of those ad-hominem attacks he then declares himself to have defeated emotionally charged arguments? – Editor]

    Hint — to those of us who believe that constitutions should be interpreted and not read as though they were dry statutes, and that the Equal Protection Clause of the Fourteenth Amendment in fact protects all Americans, the assertion that the Fourteenth Amendment should not be interpreted to grant women quasi-suspect class status is patently absurd. In law, arguments are often made using tools such as analogy; case law builds upon prior precedent, and principles are developed and expanded upon as the constitution endures. To quote Associate Justice Anthony Kennedy: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” (Lawrence v. Texas, 539 U.S. 558 (2003))

    [Ok Phil, you need to listen to this one carefully, if the 14th Amendment was intended to give women the right to vote, why was the 19th amendment necessary? The truth is that the jurisprudence at the time said that those amendments were never intended to grant sufferage to women. This is just a historical fact. You may live in denial of it and call it an assertion or absurd, but such attacks do not change history or the law….and the thing is….. anyone who has taken a serious constitutional law course knows this.

    I find it amusing that you chose Lawrence v Texas as your grand example. The Lawrence case did exactly what I spoke of above, it tossed out all previous legal precedent and reasoning and used the 14th Amendment make homosexuals a protected “class” out of thin air.

    From the decision in Lawrence:

    “While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”

    ….ok now lets take out the word homosexual and replace it with nudists or sex addicts, or pedophiles:

    “While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being a nudist. Under such circumstances, Texas’ clothing laws are targeted at more than conduct. It is instead directed toward nudist persons as a class.”

    Phil, one cannot say that there is a history of recognizing sodomy as a right in this country, according to the Gay Almanac there have been 203 prosecutions for consentual sodomy from 1800 to 1995, with 134 of those prosecutions from 1945 to 1995. There have also been prosecutions for prostitution, incest and other lewd behavior.

    It is just as I said previously, they created a right out of thin air.

    Judicial activism has the following problem. ”

    “You come home from work after a hard day at the Supreme Court and your bouncing your grandchild on your knee and she asks you, what did you do on the Supreme Court today Grandpa? And you say, well today they asked me what the law was, and I decided that the law was actually what I always wanted it to be.”

    That is a very seductive and dangerous way to practice law, because sooner or later, those with a similar mindset will create laws out of thin air that will either highly offend you, or oppress you. It is most unfortunate that in your current emotional state you cannot accept the fact that this argument really does look out for your best interests.

    This also begs the question, do we want 5 of nine Harvard trained lawyers deciding what America’s social policies will be with no restraint upon them? – Editor]

    The Editor writes “Do me a favor Phil, I want to to go to the inner city in a dominant black populated neighborhood, explain to them that being black is a functional and moral equivilence [sic] to practicing homosexual behavior…see what happens. – Editor”

    I don’t give a damn how that message is received in a “dominant [sic] black populated neighborhood” – the fact that the message may not be received well in that neighborhood does not detract one iota from its truthfulness or accuracy. An argument does not have to have group approval in order to have merit. Isn’t it funny how easy it is for a supposed “conservative” to resort to the very “groupthink” that he or she claims to despise?

    [Well thanks for confirming your racist attitudes, there is a reason why civil rights leaders such as Al Sharpton, Jesse Jackson and Roy Innis have rejected that point of view, and I do not blame them for finding it wrong headed and offensive. And in case I minced words, I want you to understand that I am calling you a bigot to your face. Why? Just replace the word gay with the word pedophile, polygamist, dancer, sex addict or satanist in your argument that it is the functional and moral equivilent of being a black man. Such a statement and false reasoning is degrading, diminishing and insulting towards all people of color. ….. and you even went to far as to crystalize your hurtful racial comments by making it clear that you could care less what black people think of them. – Editor]

    At least twice you resort to the late Reggie White’s complaint that “homosexuality isn’t a [race / gender], it’s a behavior”. Since you place so much reliance on groupthink, I challenge you to do the following:

    Go into a gay neighborhood and make that statement. See how far it gets you.

    [I will be happy to, I am most confident that I can find plenty of bi or gay black men who will say that deciding where you want to put your privates is not the moral equivilent of being a black man. – Editor]

    I have news for you. Being gay is not a mere “behavior”. It is a core component of a person’s identity – something that any gay person will tell you without hesitation and without equivocation.

    [Is that so, once again this argument can be used to make anything you wish into a class or a right; just replace the word gay with something else:

    I have news for you. Being a pedophile is not a mere “behavior”. It is a core component of a person’s identity – something that any pediphile will tell you without hesitation and without equivocation.

    or

    I have news for you. Being a polygamist is not a mere “behavior”. It is a core component of a person’s identity – something that any polygamist will tell you without hesitation and without equivocation.

    or

    I have news for you. Being a nudist is not a mere “behavior”. It is a core component of a person’s identity – something that any nudist will tell you without hesitation and without equivocation.

    or

    I have news for you. Being a Satanist is not a mere “behavior”. The animal sacrifice rituals required to be a functioning Satanist is a core component of a Satanist’s identity – something that any Satanist will tell you without hesitation and without equivocation.

    Phil, this is why an interpretation closer to original intent is so important, to use an analogy. The constitution is much like a legal contract with the people. The “Living Document” point of view that just declare’s the constitution to be anything you want is no different than putting up your life savings on a poker table when the government is the dealer, your playing under “living” rules and government makes the rules.

    No one with a lick of sense plays poker under those circumstances and the Supreme law of the Land should be treated no less, because the stakes are much higher than mere money. – Editor]

    I don’t expect you to agree with me. The raw emotion that burned through your message disinvites serious attempts to reason with you in this regard. However, I have no intention of keeping my mouth shut in the face of patent stupidity masquerading as legal reasoning. [Oh look..another ad-hominem attack…its too bad that you have demonstrated that you don’t know the difference between just declaring yourself correct in an emotional appeal, and a substantive and consistant argument. – Editor]

    PHILIP CHANDLER

    [You still haven’t answered my question, if there is a right to have a marriage license why is it that even straight white couples have been denied a marriage license for several reasons and homosexuals did not stand up and say that their rights were being violated?

    Also, if one has a right to be married, if no one will marry you than how have your rights not been violated?

    Or is it rather that a marriage license is not a right at all and is a legal contract with the people of a state, and like all contract law, there must be willing participants, and like all contract law it is subject to the will of the legislative majority. What the Iowa court has done, is force the people of the state to enter into a contract against their will. So much for the democratic process. – Editor]

  3. Philip Chandler said

    [Phil,

    If all you are going to do is repeat old arguments I have already bested and call names there is no point in continuing to respond to your walls of text.

    Lets talk about the APA for a moment, did you know that they published a study that attempted to normalize Pedophelia? Several states passed resolutions against it and when Congress was about to do the same they recanted. As far as peer reviewed studies are concerned, did you know that 80% of them are later reversed by new peer reviewed studies. Heck I have a study by the IU school of journalism that likens Bill O’Rielly to the Nazi’s. The bottom line is that for any point of view anyone wants to take, there is a professor with a study to proclaim that view.

    Also I did not compare homosexuality, pedophelia and polygamy in the way you claim. I used those examples to show how vacuous your argument was – and those arguments you have still failed to substantively refute.

    Do you know who has compared all of those?? The law has, the law treated all of those as lewd sexual offenses for hundreds of years and even in California and Oregon people vote against gay marraige at the ballot box by overwhelming majorities, so by definition that makes you the fringe and not them. I guess they are alllllll “homophobes” huh Phil….

    So instead of making real arguments you attempt to throw mud; to insult me as you did people of color. You label me as a “homophobe” – on the contrary. I do not fear homosexuals, on the contrary, I have taken the time to look at the arguments of far left politically active homosexuals pretty closely. I have actively stood up for the free speech of the GLBT Club on campus. I simply do not believe that sodomy is the moral equivilent of traditional marriage. Heck even a substantial percentage of homosexuals do not think it is necessary to change the definition of marriage, they believe as I do, in rejecting the notion that 5000 years of human tradition and social structure all need to change now that Phil is here to “enlighten” us. I suppose you will label those gays as “homophobes” too. Slinging that kind of mud is so much easier than making a real argument isnt it?

    As far as homosexual relationships not being harmful, that is a lie and easily demonstrated, the spread of AIDS and other STD’s among homosexuals is higher, as are depression, suicide. Also the rate of promiscuity among the homosexual population is much higher than in heterosexuals. When I go into a public restroom there are often advertisments written in pencil on the wall for random homosexual encounters. Is that healthy? I certainly do not hate homosexuals, my heart goes out to them as fellow human beings.

    On a side note, it is amusing that you compare where you like to put your privates with being black, but freak when the law puts sodomy in the same class as pedophelia and polygamy. So your apples and oranges comparison is valid in your own mind, but other alternative lifestyles that are all behaviorally based cannot be compared at all. While I am sure that your ‘logic’ seems perfectly valid to you, thinking people who do not share your emotional attachment do not.

    Just because you don’t get what you want, doesn’t mean that your rights have been violated.

    At this point, you have failed to answer many of my substantive arguments with substantive arguments of your own, you are degenerating your rhetoric to more and more ad-hominem attacks and name calling, I also find your comparisons with homosexual conduct as sodomy to be the moral equivilent to being black to be degrading and overtly racist and to be honest, I don’t like bigots and never have.

    Phil, let me know when you are ready to calm down, conduct yourself in a more civil and rational manner and are willing to address my real arguments with genuine arguments of your own. Phil, I have taken the time to substantively respond and refute your best arguments, and many of my best arguments you have just pretended do not exist. When you let me know that you are capable of making genuine arguments, I will allow your comments to appear again. I have no more intention of reading walls of text filled with attacks and emotional rants that do not respond to my arguments. In short, if I want to talk to a brick I can do that without you.

    Here is a hint, when you are trying to make a substantive argument, your ‘reasoning’ need to be about the substance of the argument itself and not try to make it about me as you have many times and did in your paragraph 2 below, and not about what an evil man you think that Justice Scalia is.

    You said that you are going to copy this conversation, I find it highly unlikely that you will really present all of my arguments in context and not try to mischaracterize them for the purpose of making a straw man argument. So by all means include the link to these arguments when ever you quote me if you dare as I am pleased to stand on my reasoning before anyone at all.

    Once again, When you are ready to have a genuine argument feel free to let me know – Editor]

    Wow! Not I am accused of being a “bigot” and a “racist” to my face, because I do not consider it necessary to obtain group approval for a particular point of view before announcing that I am comfortable with that point of view! When all is said and done, this represents a dangerous slide into “groupthink” on the part of the Editor, who has made it clear that he embraces exactly this form of reasoning! Well, given the emotional ferocity of his responses, the term “reaction formation” and the term “projection” would seem to be capture what is really going on here.

    As for homosexuality and black leaders — for every individual you have mentioned who attacks gay persons and refuses to acknowledge that discrimination is discrimination is discrimination, there are other black leaders who decry such callous abandonment of the principles of the Civil Rights movement. Coretta Scott King is a case in point. Jesse Jackson is a case in point. Al Sharpton is a case in point. Desmond Tutu (in South Africa, where I was born and raised, and which I left in disgust for political reasons back in 1986) is a case in point. BTW — I never said that homophobia is identical to racism — my contention is that they are both wrong and that they both have no place in a civil society. Jesse Jackson has gone on record as stating that they are both wrong, and that although there are differences between homophobia and racism, they are both deplorable. Don’t twist my words, Editor — and think twice about the wisdom of calling a “racist” any person who believes that he or she does not have to obtain the approval of black Americans in order to make a comment. Coming from a person who accuses me of ad hominem, these insults are actually amusing! I am copying this exchange as an example of right-wing groupthink and the dangers posed to civil discourse by these attitudes…

    Then you compare homosexuality to incest, polygamy, pedophilia, and nudism. These comparisons demonstrate that in addition to your legal misconceptions, you are a homophobic bigot. Please understand that I am calling you a bigot and a homophobe to your face. NEWSFLASH, Editor — homosexuality is not a form of mental illness, as was demonstrated by researchers such as Evelyn Hooker — and references to homosexuality as a mental illness were deleted from the Diagnostic and Statistical Manual of Mental Disorders (DSM) by the American Psychiatric Association (APA) back in 1973, by a unanimous vote of the Nomenclature Committee. You compare apples and oranges — and your comparison of pedophilia (which wreaks incalculable harm on innocent young lives) to homosexuality is repugnant (not to mention ad hominem through and through). Your snide reference to homosexuality as “where you want to put your privates” illustrates the intellectual bankruptcy of your position. Such biological reductionism ignores the wealth of emotional support, love, and commitment that infuses so many gay relationships, and reduces gay men and lesbians to the sum of a number of sex acts. For this, you are a bigot of the first order — and it is my hope that life will give you the opportunity to look back on this moment and to hang your head in shame!

    To illustrate the difference between homosexuality and pedophilia / incest / etc. – gay persons harm nobody. Gay relationships are not intrinsically harmful, nor do they damage society (other than in the minds of those who condemn homosexuality as immoral). Gay persons love their partners, and wish to forge permanent and enduring bonds with other adults, with the full and mutual consent of all persons involved. This cannot be said of pedophilia, or of incest, both of which wreak incalculable damage to innocent persons. Married gay couples seek the same things as married heterosexual couples – a stable framework in which to raise children, social affirmation of their relationships, the financial and tax benefits that accrue to married persons, the constant solace and support of their partners, etc. WE WANT WHAT YOU WANT!

    I am sorry that you are so blinded by hatred as not to see this.

    PHILIP CHANDLER

  4. [Ok Phil lets talk about the Zablocki case for a moment.

    This is another one of those cases where the Court used the 14th Amendment to create rights out of thin air. It is amusing that it is cases like this one and Lawrence where they do that are the legal equivilent to Dredd Scott in terms of its lack of justification in real constitutional jurisprudence are the cases you quote as your holy grails. Zablocki was written by Thurgood Marshall.

    Why don’t you show the courage and honest that Thurgood Marshall did and just admit that you want the constitution to give you what ever you want with no regard to real law.

    “You do what you think is right and let the law catch up.”
    Supreme Court Justice Thurgood Marshall

    As soon as the court has a majority of justices who believe in judicial restraint, federalism and respect the intent of the law cases like Lawrence and these others are going to get reversed and everyone knows it. – Editor]

    [You still haven’t answered my question, if there is a right to have a marriage license why is it that even straight white couples have been denied a marriage license for several reasons and homosexuals did not stand up and say that their rights were being violated?

    At no time did I ever assert that the right to marry is absolute, and that the state may not impose limitations and qualifications on its exercise.

    Straight white persons (like gay persons, and like non-white persons) may not marry if they are already married – bigamy is a serious crime in all 50 states. Seven states still require that the parties present the results of blood tests before they may marry (in some states, the clerk may not issue the marriage license until the results of blood tests have been presented); these laws date back to the 1930s, when the incidence of syphilis was much higher and when these tests were viewed as a valuable tool in tracking and managing this disease, A person may not marry an immediate blood relative (although some states do permit marriage between cousins); the law recognizes that children born to persons who are closely related to each other suffer unacceptably high risks of serious genetic and developmental disorders. Parties to a marriage must both be above a minimum age of consent, and both parties must affirmatively grant their consent. At no time did I ever question these restrictions, and I am unclear as to your point. The above notwithstanding, marriage is a “fundamental” right (Zablocki v. Redhail, 434 U.S. 374 (1978)) (“…the right to marry is of fundamental importance…”).

    Gay persons did not stand up and complain that our rights were being violated until fairly recently for several reasons. Firstly, gay persons were not even recognized as existing as an identifiable class of persons until the last two decades of the 19th century. Additionally, it was not until the 1970s that the official view of homosexuality as a mental illness was abandoned. Additionally, any person who self-identified as gay prior to the 1970s was likely to become the target of brutal harassment, including harassment by the police and by the government itself. The first statewide law prohibiting sexual orientation discrimination in employment, housing, and access to places of public accommodation was not passed until 1980, when Wisconsin became the first state to pass such a measure; before then, sexual orientation discrimination was both legal and widespread. Editor, you yourself pointed out that there were 203 prosecutions for consensual sodomy from 1800 to 1995, with 134 of those prosecutions from 1945 to 1995 (you cite these statistics with apparent approval in your response to my message). In 1993, a woman named Sharon Bottoms lost custody of her son on the grounds that she was an “unconvicted felon”. Up until 2003, as many as 13 states had anti-sodomy statutes on their books, which permitted for the punishment of persons convicted of sodomy with penalties ranging from a light fine (Texas) to incarceration in a state penitentiary for up to 20 years (Oklahoma).

    So are you surprised that the gay community did not begin to fight for the right to marry up until a few years ago? We were too busy staving off criminal prosecution of the type that you document (above), and were fighting discrimination that was reflected in the actions of the very judiciary that was supposed to protect us from majoritarian excesses (I refer to the obscene decision, Bowers v. Hardwick, 478 U.S. 186 (1986)).

    What truly amazes me is the willingness of persons such as the Editor to justify their own cruelty. It is precisely because of the legal landscape that you cite with such approval and with such relish (134 sodomy prosecutions from 1945 through 1995) that gay Americans did not fight for the right to marry until very recently; then you use the fact that we did not fight for the right to marry until very recently to justify your dismissal of our claims.

    I wonder if the Editor has any gay friends…

    PHILIP CHANDLER

  5. [Phil, your latest post which I have chosen not to allow to appear is a wall of text laden with personal attacks, I am going to add you to the blacklist for 5 days and then take you off so you have a chance to calm down – Editor]

    [Here is the part of my quote that Phil left out:

    Ok Phil lets talk about the Zablocki case for a moment.

    This is another one of those cases where the Court used the 14th Amendment to create rights out of thin air. It is amusing that it is cases like this one and Lawrence where they do that are the legal equivilent to Dredd Scott in terms of its lack of justification in real constitutional jurisprudence are the cases you quote as your holy grails. Zablocki was written by Thurgood Marshall.

    Why don’t you show the courage and honesty that Thurgood Marshall did and just admit that you want the constitution to give you what ever you want with no regard to real law.

    “You do what you think is right and let the law catch up.”
    Supreme Court Justice Thurgood Marshall

    – Editor]

    “The Editor: As soon as the court has a majority of justices who believe in judicial restraint, federalism and respect the intent of the law cases like Lawrence and these others are going to get reversed and everyone knows it.”

    ************
    Response:
    ************

    With President Barack Obama in the White House for at least four years, and probably for eight years, it is likely that our nominees to the US Supreme Court will be ideologically similar to David Hamilton, who was recently nominated to the US Court of Appeals for the Seventh Circuit. And with the US Senate firmly in Democratic hands (and Republicans in the worst mess they have been for decades), I wouldn’t count my chickens.

    Lawrence is safe. I will take my chances!

    PHILIP CHANDLER

    [On the contrary, Obama has the lost the most approval points in 60 days than any president in history, also the divide between those who have confidence in him and dont is also the widest in history.

    http://pewresearch.org/pubs/1178/polarized-partisan-gap-in-obama-approval-historic

    Don’t expect to do well in the Senate in 2010. Toomey is ahead of Spectre in the polls already and Dodd’s approval is so low that most people believe he cant win re-election.

    We wrote about David Hamilton, the guy is so nuts that the 7th Circuit has actually scolded him several times for outrageus decisions that don’t follow precedent which lower courts in general are supposed to do. The guy even tried to micromanage the prayers given in the Indiana State House (by banning the word “Christ” and other such nonsense) and the 7th Circuit threw that out on it’s ear as well.

    Once again you have shown that your point of view is that the text of the constitution and the actual law itself means nothing to you, and that you want a judge to invent law out of thin air as Hamilton does and frequently gets smacked down for it.

    By the way – since you did not fully quote me I inserted my entire quote above – Editor]

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