How Roe v. Wade made gay marriage inevitable
By AaronVB Posted in User Blogs — Comments (34) / Email this page » / Leave a comment »
...or more specifically, Griswold v. Connecticut, the decision that was the basis of the Supreme Court's ruling in Roe. The question before the Court in Griswold seems rather innocuous by today's standards: was a Connecticut law banning the use of contraception constitutional. The Court, of course, said no, but why it said no set a precedent that has vexed conservative legal scholars and social activists to this day. On a 7-2 decision, Justice Douglas delivered the majority opinion, stating:
"...the First Amendment has a penumbra where privacy is protected from governmental intrusion..."
"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees...Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."
Griswold, then, is the case where the Court made it very clear that it believes the right to privacy exists somewhere in or in the vicinity of the Bill of Rights (contrary to popular belief, the Court had recognized some individual right to privacy in earlier cases, it was not "discovered" in Griswold), and made it most of all clear that it applied to bedroom activity and marriage. Roe v. Wade took Griswold a step further and argued:
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Thus, in effect, the right of privacy of individuals to do what they wish mutated and expanded to include the fruits of bedroom activity, namely children. The Roe decision had other aspects and nuances, but this one is most important to the gay marriage debate: the Court effectively denied the argument that marriage and the family and bearing children serve some kind of social good or necessity. After all, the Court has long upheld that privacy is not absolute; it can be regulated when the state has a compelling interest to do so (Roe itself argued that the state has sufficient interests involved to justify regulating abortion past the first trimester for medical reasons), but clearly in the Court's opinion marriage is not one of those instances.
Fast forward to 2003, and the Lawrence v. Texas decision overturning state laws against sodomy makes eminent sense in light of precedent set by Griswold and Roe. Much is made of Romer v. Evans, where the Court set the precedent that laws can be struck down based on the malicious intent of their authors, and not on the text of the law itself, when thinking about gay marriage. Indeed, it was part of the justification for the recent District Court decision to overturn Nebraska's "one man, one woman" amendment, and also was cited by the majority in Lawrence. Certainly, it is a factor. But I feel that the legal precedent that the state has no legitimate interest in maintaining the traditional family unit is far more important, if perhaps more insidious, than the judicial activism that Romer encourages. Indeed, Justice O'Connor, in her concurring opinion in Lawrence, proves this point very clearly. She wrote:
"Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality...[but] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be `drawn for the purpose of disadvantaging the group burdened by the law' Romer v. Evans, 517 U.S., at 633"
Justice Scalia must have been reading this passage when he noted that the Lawrence decision made gay marriage all but inevitable, but he was only half right in that argument. That distinction really belongs to Griswold v. Connecticut and Roe v. Wade, and a bit to Romer v. Evans too.
So, if the gay marriage question comes before the Supreme Court, either through the Nebraska case or another route, how will the decision play out? My best guess is that it will mirror Lawrence very closely with a 6-3 decision; Scalia, Thomas, and Rehnquist dissenting. Sandra Day O'Connor made it very clear in Lawrence that she thinks all benefits offered to one societal group must be offered to every other societal group, and the "liberal" justices will follow the arguments advanced in Griswold, Roe, and Lawrence to their logical conclusion: the family serves no social benefit or necessity, so, in essence, anything goes. Romer v. Evans will of course be cited to show the majority's superiority to the bigoted laws passed by the states, but ultimately Romer will just be cover for the majority's real opinion that the family is infinitely malleable and no one has any legitimate stake in how it is currently defined.
Unfortunately, there is not much activists can do about this until the decision is handed down. Afterwards, those who value the traditional definition of marriage can work to redefine the debate and cause some real change:
- Get back to basics- the Court will inevitably cite the right to privacy inherent to the bedroom and the marriage. Use the decision to question the sanity of the Court's broad, sweeping interpretation of privacy. Does the state really have no interest in promoting morality in the home? Point out that the logical conclusion of the Court's interpretation is that the right to privacy will continue to expand indefinitely as more and more superficially harmless activities get included in it, and think of examples of where this might be harmful (it's a bit late and I'm not creative enough to do that on my own right now).
- Lampoon Democrats in the Senate for it- they will try to distance themselves from the decision (doing anything else would be politically suicidal) but make it clear that these kinds of decisions will continue to come down from our Courts if Democrats continue to control the judicial nomination process. This has been suggested on other posts on RedState before, and I agree wholeheartedly. The nuclear option debate will (hopefully) be long settled by the time any gay marriage decision was made by the Supreme Court, but continual pressure needs to be put on Democrats.
- Stay politically active- in the climate following a legalization of gay marriage by the Supreme Court, activists will probably be extremely disappointed. We should get those feelings out of the way quickly and continue putting "one man, one woman" proposals on the ballots to keep showing that public opinion is overwhelmingly on our side. The fact they will be struck down is irrelevant. The politicians in Washington confirming the judges and the governors who will be enforcing the decision need to see the kind of mood that awaits them.
Ultimately, this may all be moot if Bush succeeds in getting strict constructionist judges to the Supreme Court to replace retiring loose constructionist judges. But we need to be prepared for the day the Supreme Court hands down a decision legalizing gay marriage. Better safe than sorry.
a right to privacy.
Since marriage is a public institution this would not be germane to the question. The relevant SCOTUS decision which could be used to create a right to same-sex marriage is Loving vs Virginia which struck down miscegenation laws and established that marriage is a constitutional right.
As far as Romer goes, the Court did issue a stern rebuke against laws motivated by "animus" but that is not the reason the CO law was struck down. Rather the fact that it denied people the right to petition state and local government for redress of grievance, which is an explicit constitutional right, even under the strictest textual interpretation.
Neither Griswold nor Lawrence establish any sort of precedent for gay marriage. Loving and Brown (and other discrimination cases) do. Romer could (can) be used to strike down excessively broad and vague laws banning not just gay marriage but (poorly worded) "incidents of marriage" from being extended to same-sex couples--see yesterday's decision out in Nebraska.
My guess is that if a gay marriage case come before SCOTUS with its current judges they will maintain a ban on marriage but may strke down vague bans on "incidents", "partnerships" and "contracts", if only because these are so badly worded as to be uninterpretable. As the saying goes, the Court also reads the election returns. Except in very blatant instances of unconstitutional laws (and sometimes not even there: see Plessy vs Ferguson) the Court does not usually go beyond the bounds of what is acceptable to a plurality of the citizenry. Lawrence, for example, pretty much affirmed where the public is at on the question of sodomy laws. Brown and Loving did go beyond public opinion, but it's pretty easy to see why such racist laws should not pass muster. Roe is perhaps the one case where the Court got out ahead of public opinion to a significant extent without clear constitutional warrant. Given the huge fracas that has left us with I do not see the Court doing that again on any major public controversy. Given an additional justice or two appointed by President Bush, I think no one need worry about SCOTUS establishing same sex as a right any time in our lives.
By the way, questioning Griswold will bear no fruit. The vast majority of people in this country will not accept the idea of a government that can snoop in people's private homes--let alone a ban on contraception. If social conservatives want to guarantee themselves complete marginalization and a public perception of fanatical extremism, overturning privacy jurisprudence will produce those results, even among many conservatives. Attack Roe not because there is no right to privacy but because there is a right to life.
As has been asked many times before why is this an issue?
If two other people want to get married how does it affect you?
Common reasons:
- My religious beliefs are the only correct ones and must be imposed upon everyone else.
- Children will see happily married same sex couples and decide to become gay.
- Straight couples will stop getting married and the entire institution will collapse.
Please add your objections, if you have any others.
Excellent post as always Alex.
This post should be renamed the slippery slop to perdition.
RDF,
4. Once everyone discovers how to coordinate colors and do great design the end of civilization can't be far off.
I always am amused at how slippery slope arguments almost always - and I do mean almost always - turn out to be right.
why anyone CARES who marries whom -- or, for that matter, who has sex with whom and how.
This overweening obsession with what other people do with their genitalia baffles me.
He wants to know if your kid can come over to play, horse around, that kind of thing. Problem?
I think we can all agree that pedophilia is wrong.
Caring about "who has sex with whom and how" is not entirely out of the question, which I think was the point of the comment you're replying to.
Gay men have sex with other men.
Child molesters have sex with children.
And a helluva lot of them have sex with female children. Take my word for it.
Explain to me what the private act of two men having sex has on the public -- absent the bizarre obsession of those who would forbid it.
more carefully.
WHo has CONSENSUAL sex with whom.
Can we stipulate that children cannot give consent to sex, by any legal or moral standard? Or do we have to go down that road?
By the logic of homophobes, the spreading of AIDS between gay men is something of a godsend.
I wonder how all those millions of HETEROSEXUALS are catching it. Sure, a few closeted married men here and there -- but by and large, it's the heterosexuals doing the spreading.
You can not debate a comment without invoking dem. shill talking points.
Look back to where the AIDS epidemic started. It wasn't in the heterosexual community. As Thomas pointed out earlier, public consequences
Homophobe, puleeze. You don't know one thing about my feelings on homosexuality. Get over the personal attacks. You're violating yet another posting rule. This is after all NOT YOUR HOUSE. Save your foul language and personal attacks for dkos. It fits in better there.
And yes, honey, da** is indeed profanity to most people. As is he**.
And lots of nonmarital sex.
You won't like the right response there.
There is no one around here who'd view AIDS as a godsend. I'd respectfully suggest you walk carefully before suggesting that.
really that gays just want the state to say that it is not wrong to be gay, and that gays think institutionalizing the gay relationionship will somehow get rid of the shame they may have for the lifestyle they have chosen? And then the next question is should the state be able to say that anything is either right or wrong?
I did NOT call you a homophobe, nor did I imply it. If you read it that way, I apologize for being too oblique.
It was NOT aimed at you.
Nowhere did I imply anyone HERE views it that way.
I've said it before, I'll say it again -- this site attracts me precisely because its denizens are NOT whackos. I'm almost totally opposed to most of your positions, but I appreciate the intelligence with which they are stated.
Okay? Am I being clear enough? NO MALICE OR OFFENSE INTENDED.
can perpetuate the AIDS epidemic. It isn't gay sex that's the problem, it's promiscuous sex, and that is worth opposing morally
Re: Look back to where the AIDS epidemic started.
It started in Africa, but I certainly hope no one uses that an excuse to denigrate Africans. While we're not exactly sure how AIDS got into humans in the first place we do know it was in this country for twenty years (at least) before it began spreading in the gay community since tissue samples frozen in the 1950s (after their owners died of mysteriosu symptoms later recognized as AIDS) have HIV virus in them.
The issue isn't marital sex. HIV neither known or caes whether people have a marriage license and married people can and do pick up the virus from (unfaithful) partners. The epidemogically correct issue here is monogamous fidelity, with or without a slip of paper from the clerk of courts.
Re: And a helluva lot of them have sex with female children. Take my word for it.
A study a while back found that most of the underage women who get pregnant have "boyfriends" well into their 20s. Given the cost to society in terms of abortions and fatherless children I would suggest this is far bigger problem than anything happening on the same sex side of the sheet.
But remember, there is a slippery slope problem when you say that those who have reached the "magic" age of 18 can do whatever they want.
When you define a 17-year-old as a "child" and an 18-year-old as an adult with the right to do whatever he/she wants, that seems kind of arbitrary.
But, stipulating to your assertion, I do think that society has an interest in limiting certain consensual behaviors.
(1) Sex/nudity in public. Even when practiced by adults in places where no kids are around, this assaults my sensibilities. I don't need to see it on my way to work/school/whatever. Especially if its ugly people. Even though its a free country and all, I just don't want other people's sexual choices thrown in my face.
(2) Incest between adults. I think it is wrong. I can't think of any scientific or religious reason why it is inherently wrong, but it just seems like the type of behavior that could lead to other problems. Like if a pervert dad insisted on his adult daughter having sex with him or she gets cut out of the will. That kind of thing.
(3) Group sex. OK, this is just my own religious view. It's not illegal or anything and people can do it if they want to behind closed doors.
(4) homosexuality. See my above view on group sex. It is not illegal in America. It will never again be illegal in America. Gay marriage is different. Gay marriage says more about what our society at large will tolerate. As a religious person, I do not think that God approves of homosexuality. He actually said so in the Bible. Therefore, I am sure that he does not want me or any other religious people to vote for a candidate who believes that gays should be allowed to marry. And I think that is why religious people are so loyal to the Republican Party.
Things can change, though. I expect the next Republican candidate to be someone who is both pro-choice and supportive of maintaining the rights that gay people currently have.
Those two issues aren't pivitol for me. But I also expect religious people to vote for that candidate the same way millions of church-going Christians voted for Schwarzenegger in California in 2003. They didn't agree with all of his views on abortion and gay rights but they liked his views on taxes and illegal immigration.
I like to haunt both redstate and DailyKos...but I must say I enjoy redstate much more because the debates are so much more lively here! I see some DailyKos visitors..so why not some redstate visitors in DailyKos? It would make things more interesting there....
I'll comment on the subject later..
- I just don't understand...
why anyone CARES who marries whom
I care. And I'll tell you why.
- or, for that matter, who has sex with whom and how.
That I do not care about, so long as no one insists on doing it in the road.
- This overweening obsession with what other people do with their genitalia baffles me.
Opposition to same-sex marriage need not have anything to do with genitalia. Or at least, nothing to do with what anyone does with them.
Same-sex marriage is always cast as a debate about homosexuals. I don't believe that will turn out to be the problematic aspect of it. There are already plenty of homosexual couples living together. To the extent anyone notices at all, it's mostly laughing about the noises they make at night.
A restructuring of the term "marriage" to include same-sex partnerships in which two unrelated individuals are legally re-defined to be "next of kin," with all that that implies, has wider application than use by homosexuals to formalize their sexual relationships.
In particular, it is an eminently practical solution to an entire class of problems which beset a very large number of middle-aged, female, single parents. These problems range from, "Who will watch the kids if I stay late at the office" to "What would happen to the kids if I were run over by a bus?"
Women are nothing if not practical. So even though no one is talking about this now, twenty years after same-sex marriage is legalized, the biggest obvious change will have nothing to do with homosexuals. It will be the huge number of middle-aged females who have "married" in order to obtain the legal protections associated with inheritance and the right to intervene in emergencies, as well as the fail-safe of having a second earner in the house in case one of life's meteors strikes.
This I care about a whole bunch, and for two reasons. The first is the high failure rate observed among female parents in installing the so-called "conscience" in the sub-adult human. This failure produces large numbers of conscienceless adults, who are just plain dangerous. A civilization can't have too few such people around. And frequently we don't even know who they are until it's time to lock them up for what they did. Secondly, it promotes the further estrangement of the adult male population from the society's young.
Like a bad amoeba, that one also splits into two undersireable effects, one on the young, and one on the adult males.
As to the young, you cannot fool the male children of lone female parents into believing that they are going to be important to their families when they grow up. They can see that they will not be. A "family" is a mother and her children. Adult males need not apply. This lesson is demonstrated to them every day, in thousands of ways. So they grow up without a very clear idea of what they are supposed to do with their lives, let alone how they are supposed to do it. The daughters, meanwhile, are learning that males are unnecessary to family life, making them the perfect complements of young men who have no idea how to be a parent.
The effects of large-scale estrangement of a society's adult males from relationships with the society's young is something we know a bit about. It can be observed in many settings around the world, perhaps the closest being your local federal housing project, which is basically an ante-bellum Southern plantation transported to an urban setting by well-meaning Democrats. We have the mother and her brood over here, and the men in the barracks with the bars on the windows. And to think that liberals called this idea the Great Society.
It is not a pretty scene. Here we find listless, ambitionless adult males whose life-strategy is best described as "grazing.' They eat where they can, and they move on when that place is empty.
When you move this behavior to a larger setting than one finds in a federal housing project, you find truly horrifying conditions... entire countries where men simply do not care about anything, and consequently do no work. Let me submit that we do not need that here.
But we could have it, for free, if we don't see it coming in time. One way to surely bring it about is to offer women a short-term practical solution to life's difficulties which has the long-term effect of producing Matrilinia, the place with no running water and no electricity, both of which are civilizational products of Men Inc., which does not form in matrilineal cultures where men do not have a personal stake in children that they know to be their own, and that they participate in raising.
We have already gone about as far as a society can safely go in estranging adult males from their children. Another round of this will probably put us past the tipping point, where the Slippery Slope turns into the Slippery Cliff.
So I'm against same-sex marriage. I don't think the consequences can be predicted, and I see an easy path toward a Fright Scenario. Those two things together are enough to give me great pause.
there are a lot of us who don't believe that "God" said ANYTHING in the Bible. We believe it was written by men. With their own flaws and foibles and ignorance. W#e don't believe it was inspired by or dictated by God.
Subjecting a large segment of the population to rules and laws based on what these people do not accept as Divine Will is simply wrong.
So long as a law is lawfully enacted and enforced -- which is to say, within the strictures of the Constitution and existing laws -- it's perfectly legal, and moral, to "subject" nonbelieving persons to laws premised upon an understanding of divine will. For example, if I think God wants a progressive income tax, and if I'm able to enact such a tax via the legislature, there's nothing in American tradition or jurisprudence that nullifies that tax simply by virtue of its stemming from a religious premise.
Nontheistic governance is not a sine qua non of American governance.
Nick,
Please look up the great society sometime so you can at least criticize it from a correct point of view.
Conscienceless males? Look at most, I am thinking of the more famous criminal type and they almost always come from a so called normal relationship, often though the father is cruel and/or pre-occupied.
Marriage is one of those institutions that has attained myth status but the reality is something different. What, for instance, can be the consequence of so many divorces. I have often noticed that it is repeated in the next generation.
Knowing many gays because of a gay brother most do not want children, many have children from marriage and most of these children are as normal as the rest of us.
A female friend's marriage ended in divorce and she recently had a child through artificial insemination, where does this fit in?
Inner city black and white males have attitudes that don't help but it has little to do with the great society etc it has more to do with biology the rampage of hormones and values that are hard to understand. Don't we wish everyone could grow up in a home of some stability. Another good reason for increased education on prevention and consequences. (oh I know)
Empathy comes from father according to ??? is that really true. Many children were raised with out fathers due to ww11, Korea, and Vietnam are there any statistics on how they turned out?
Where are the examples of a "correct" slippery slope argument? Haven't seen one yet.
And if we really care, be a mentor, be a big brother these things help as they provide other models for youth - but I think our social and corporate fabric make this more difficult today.
- Please look up the great society sometime so you can at least criticize it from a correct point of view.
Heh heh. What point of view would that be... yours? I don't need to look up The Great Society. I was there to watch it happen. Well-meaning liberals conducting animal husbandry experiments on human economic captives... just what we needed. And what a disaster it was for the people who were "helped."
- Conscienceless males?
Conscienceless anybodys. People who kill to take other people's shoes are savages. Girls are into that too, or haven't you noticed?
- What, for instance, can be the consequence of so many divorces.
One is the first regime in human history that routinely and on a wholesale basis estranges human beings from their young. I don't believe we know what the long-term consequences of this are; no society has ever done this before. Or if they did, they vanished without a trace.
- Knowing many gays
What do gays have to do with anything I said?
- A female friend's marriage ended in divorce and she recently had a child through artificial insemination, where does this fit in?
Data is not the plural of anecdote, and we do not fashion society-wide policies in such detail as to accommodate every case. Such prescience is beyond the capability of mere mortals. Yet policies are necessary, so we have them anyway.
- black and white males have attitudes
I am happy to see that racism is not among your prejudices.
- Where are the examples of a "correct" slippery slope argument? Haven't seen one yet.
From the wild Irish slums of the 19th century Eastern seaboard, to the riot-torn suburbs of Los Angeles, there is one unmistakable lesson in American history; a community that allows a large number of men to grow up in broken families, dominated by women, never acquiring any stable relationship to male authority, never acquiring any set of rational expectations about the future -- that community asks for and gets chaos. Crime, violence, unrest, disorder -- most particularly the furious, unrestrained lashing out at the whole social structure -- that is not only to be expected; it is very near to inevitable. And it is richly deserved.
— Daniel Patrick Moynihan, The Negro Family: The Case for National Action, 1965
In spite of that prescient quote, the Great Society AFDC program came with the "Man out of the house rule" built-in. Henceforth, the nation would pay poor women to throw their husbands out of the house. It was a resounding success. Poor men were unable to compete with Uncle Sam as a provider, so they were tossed out on their ears as the government married their wives and moved them into shiny new housing projects, with the children.
The housing projects for the men came later, and from the Bureau of Prisons instead of HUD.
I am not certain precisely where the "Man out of the house rule" came from, but I vaguely recall walking by the television as a child while some Senator with a heavy Southern accent harped about "paying able-bodied men to stay home." Southern Democrats may well have been the origin of that horribly bad idea. But don't hold me to that; it's just a recollection I have from the days when the Great Society was being debated. Whoever is responsible, the AFDC program was one of the worst ideas to ever be implemented in the United States, or anywhere else for that matter. If that is not the "correct" viewpoint by your lights, too bad. It's my viewpoint, and I watched it happen.
Exactly, it is your take on it, admit that but don't preach to me either that it is the only take on a program that helped develop America into what it is today. You lived it? did you, so it was all bad and the one line of the proposal throws the whole idea out? Sorry but much good came from it and the educational and work related services accomplished great things. We live in a more diverse and tolerant society due to it; so as long as you recognize your prejudices are only yours that is good. As for men growing up in situations with little hope that is still true as the gangs attest and it ain't the great society that is the cause, it is the more complicated life that still exists in the inner cities. It is still a lack of opportunity. I live there and ride the Broad Street subway when not cycling. This is often the trouble with right wing rhetoric it takes bits and pieces and personal prejudices and makes them laws. Humbug, or even more contemporary BS.
ps i lived it too - funny how some see it differently.
http://www.pbs.org/johngardner/chapters/4c.html
"In the wake of President Kennedy's assassination in 1963, a wave of sympathy and public support enabled President Johnson to pass a number of Kennedy Administration proposals including the Civil Rights Act of 1964. Building on this momentum, Johnson introduced his own vision for America: "the Great Society" -- in which America ended poverty, promoted equality, improved education, rejuvenated cities, and protected the environment. This became the blueprint for the most far-reaching agenda of domestic legislation since the New Deal -- legislation that has had a profound effect on American society. "
Despite vigorous assertions to the contrary, all they want is an echo chamber for liberal talking points. Any honest debate will expose the weaknesses and inconsistencies in their overarching philosophy.
"Limited government" seems to be the mantra which holds the diverse coalition of conservatives together.
Liberals seem to consist of two general camps: those who (generally for their own benefit, but sometimes for the benefit of others) want to see money flow from the bank accounts of the "haves" to the pockets of the "have-nots" and those who don't want traditional views of morality affecting the laws or social mores in our society.
Open and honest debate will inevitably shake out the views of the latter camp. And the pragmatists on the liberal side realize that this view must be disguised as a "religious tolerance" perspective. And the problem is, the middle ground between people who believe in a God who abhors sexual immorality and people who do not believe in such a God is hard to hold.
Therefore, they are forced to disguise one of their two core views. And an intellectually honest debater will expose this uncomfortable fact.
And their only other core view is shunned by mainstream Americans. It is Marxism.
A more detailed response will have to wait, but I will simply say at this point: a court ruling that state governments do not have a right to prohibit private intimate activity is far removed from a decision that requires state governments to put their official imprimatur on "alternative" relationships. One does not lead inevitably to the other.