Republicans in Congress are up in arms over the Justice Department’s decision to not defend the blatantly unconstitutional Defense of Marriage Act. To justify opposition to same-sex marriage, Lamar Smith said, “No one can seriously believe that the constitution’s authors intended to create a right to same-sex marriage.”
And he’s right about that. I’m sure same-sex marriage was something that never even crossed their minds. The whole issue of sexual preference as we understand it today wasn’t on anyone’s radar for at least another century, I don’t believe.
Of course, the Founders certainly didn’t intend for women to have the right to vote or for African Americans to have a right to not be kept in involuntary servitude, either. There are all kinds of issues we face today that 18th century people either never imagined, or saw entirely differently, from the way they are viewed today.
But according to Wingnut logic, the perspectives of a handful of white guys who lived 200 years ago cancel out all the ways society has changed in all those years, keeping us locked in a kind of anachronistic tyranny. All the more weird, since the tyrants at this point are just projections of what the Right imagines them to have been. It’s government by ghost.
I might point out that abortion was legal in Britain and former British colonies in the late 18th century, and it never occurred to any of the Founders to do anything about it. I don’t believe any of them ever even expressed an opinion on abortion, which was openly going on all around them. What does that tell us about wingnut priorities?
However I’m sure criminalizing abortion and gay marriage will create lots of jobs. (/sarcasm)
Orange Julius is threatening to cut funds to the Department of Justice to punish them for not defending DOMA. See also Steve Benen.
You’d better be careful, maha.
You live in NYC. Don’t leave you horse untethered at the post, or you’ll be fined a gold dollar. Flirting can also lead to a $15 fine, so you’d better watch it!
My point is that there any number of silly and stupid laws still on the books that no one pays any attention to – least of all the law ENFORCEMENT community.
Here, for some shits and giggles, are just some amusing examples:
North Dakota – Pretzels and beer cannot legally be served simultaneously by any establishment.
Tennessee – In Memphis, women are only allowed to drive cars if a man is walking beside or in front of the car waving a red flag to warn other drivers and pedestrians.
Nevada – It is perfectly legal to hang someone if they shot your dog.
Massachusetts – It is illegal to park your donkey in a bath tub.
Alabama – While it’s perfectly legal to pick your nose while driving, flicking your booger out the window of a moving vehicle can get you in big trouble.
And my two personal favorites:
Arkansas – Beating your wife once a month? Go for it! More than once a month and the cuffs come out. (Nice of them to set a limit, kind of like hunting season).
Montana – If a man is traveling with a sheep in the back of his truck, a chaperone must be present at all times. (I’d prefer not to hear the story that brought this law into effect).
Want more?
http://www.associatedcontent.com/article/1228232/amusing_outdated_laws.html?cat=17
So, maybe they can go defend DOMA after they find that beer drinkin’, pretzel eatin’ guy, who just got done letting his wife drive without walkin’ by her car, who just hung someone for shooting his dog, whose ass is parked illegally in a bathtub, who flicks his boogers, is a frequent wife-beater, and who’s driving sheep unchaperoned
Yup, after that sounds like that’s about the right time to go defend DOMA.
I think your phrase “the perspectives of a handful of white guys” sums it up. The entire Rightie social agenda is based on white-, male-, “Christian”-supremacist prejudices. Nothing to do with the Founding Dudes, really; instead it’s a barometer of the (sometimes self-hating) bigotry of today’s Right. It’s also a clue as to why we’re called “progressive” and they’re not.
Lots of good laughs today in the first comment plus your Orange Julius description – thanks for the humor – otherwise I might be tempted to park some teaparty donkey in my bathtub. And we have a several donkeys in my small town.
Women voting and freeing slaves took constitutional amendments though, no?
Yes, but there’s nothing in the Constitution specifically about marriage. Slavery had been recognized as legal by the original Constitution, and voting rights had been reserved for men only in the 15th Amendment. So, in order to abolish slavery and extend voting rights to women, the Constitution had to be amended. But there’s nothing in the Constitution about marriage, so there is nothing there to amend.
Marriage laws have always been left to the states, and a marriage deemed legal in one state is recognized as legal in all the other states. The beef with the Defense of Marriage Act is that it defined marriage at federal level and declared a state is not obligated to recognize a same-sex marriage deemed legal in another state. Last year a federal judge ruled that DOMA violates the 10th Amendment by intruding on an area of state authority. There is more to the ruling, which you can read here.
I’m sure the righties believe that the “ghosts” never had sex outside of marriage, either. Boy, are they wrong. Over 70% of marriages among the “ghosts” welcomed a bouncing baby something far earlier than 9 months later.
As long as the offspring wasn’t a bastard, no big deal. The ‘ghosts’ had a healthy liking for sex, recognized it was here to stay, and perhaps even enjoyed it – unlike today’s righties who have a very unhealthy attitude towards sex, believe it can be legislated out of existence, and love is a privilege granted only to couples of the opposite sex.
As an Australian, one of the many things I don’t understand about the USA is the reverence shown to the ‘Founding Fathers’. It’s as if these historical figures, creations of their own time and place, were semi-divine. I can’t think of any other country where politicians from a distant era are automatically assumed to have anything useful to say about 21st century society.
I should think the very fact that we’ve amended the Constitution so many times for so many crucial purposes proves it doesn’t matter a rat’s whisker what its original constructors might have thought. Last pitiful argument of a scoundrel, imo.
Marriage laws have always been left to the states, and a marriage deemed legal in one state is recognized as legal in all the other states. The beef with the Defense of Marriage Act is that it defined marriage at federal level and declared a state is not obligated to recognize a same-sex marriage deemed legal in another state. Last year a federal judge ruled that DOMA violates the 10th Amendment by intruding on an area of state authority. There is more to the ruling, which you can read here.
I’m going to play devil’s advocate here for a moment. No, I’m not opposed to gay marriage, but I think that trying to legalize it through the back door with a court case is not a good way to achieve it, and indeed may backfire (as it did in California).
As I understand it, Sections 2 and 3 of DOMA are the controversial parts. Section 3 is where it’s declared that the federal government doesn’t recognize gay marriage. As a practical matter, it means (among other things) that a gay couple can’t file joint tax returns or claim one another as tax deductions. Any other federal program in which your spouse’s income is considered would likewise be ineligible. But Section 3 does not BAN gay marriage, it simply allows the federal government to disregard it. Obama has said that the federal government will no longer enforce Section 3, but I’m not really sure what that means. Does it mean that gay couples can now file joint tax returns without being prosecuted for tax evasion by the IRS? Will the federal government now consider the incomes of both members of a gay marriage when it comes to awarding Pell Grants? I’d be interested to hear anyone’s opinion on just what the legal implications of not enforcing Section 3 would be.
Section 2 says that no state has to recognize a gay marriage performed in another state. Gay rights advocates say that this amounts to an unconstitutional interference in state’s rights, but I see a problem with that: some states (such as Texas) have a state law specifically banning gay marriage, while other’s (such as Massachusetts) have a state law legally sanctioning it. So who’s state law should get preference, that of Texas or that of Massachusetts? There was a recent legal case where a gay couple in Texas tried to obtain a divorce, but the Texas courts refused to grant it because the marriage (performed in Massachusetts) had no legal standing in Texas.
If DOMA gets repealed, that doesn’t automatically legalize gay marriage in all 50 states. Gay rights advocates will still have to do the hard work of convincing state legislatures (or voters in the case of a referendum) to at least repeal laws which specifically prohibit gay marriage. Better would be to have a state law specifically authorizing it. In those states that have no law which specifically authorizes or prohibits gay marriage, gay couples could probably get married, but the status of their marriages would depend on how local authorities want to interpret the definition of “marriage,” which means the governor or even a local county clerk could obstruct the marriage. Obviously, it would be better to have a law in place which specifically authorizes such marriages.
Again, I’m not opposed to gay marriage. But trying to legalize it with court cases when the US Constitution makes no mention of it is probably a losing strategy. But I don’t think that a constitutional amendment is required.
If Lamar was to read his history he’d know that the original framers of the Constitution were primarily concerned with putting in place an instrument that would establish the relationship between the government and the governed. Anything the people wanted to include in that Constitution was up to the people to decide, and a mechanism to amend the Constitution was incorporated into it for just that purpose. If we wanted a King to rule over us we have the power to amend the Constitution to fulfill that desire. There is nothing sacred in the Constitution…only those thing that we have the wisdom to understand and value.
I think it was John Adams who basically said to future generations..Do what you want with it, it’s yours. The framer intended us to be free and remain free, and to use our heads to think about what we are doing as a nation.
Lamar is a piece of shit homophobe!
@Candide —
It’s not a matter of “legalizing” gay marriage at the federal level — no marriage is legalized at that level — all marriage licenses are authorized at the state level — but some are accepted at the federal level for the purposes of federal benefits. Marriage falls within those fundamental rights that are assumed in the Constitution; the Framers made no direct mention of them, but they are implied by those rights that are enumerated in the Bill of Rights, particularly in the Ninth Amendment, which states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Casting court cases on the constitutionality of same-sex marriage as “back-door” is rather odd: testing laws against the Constitution is hardly surreptitious or unusual. One of the responsibilities of the judiciary is just that: judicial review. Given the publicity that civil rights cases tend to generate, “back door” is not really an appropriate description. If you’re trying to espouse the idea that only the will of the people as effected through their elected representatives has any validity, that’s patently false: you might as well file the Bill of Rights away and forget about it.
Your objections seem cast in reverse: it’s not same-sex marriage that has to be justified by passing laws allowing it, it’s laws forbidding it that have to be justified for withholding a fundamental right from a particular class of citizens.
It’s government as religion, as Ken L alludes to: Going through the sacred texts and divining how The Perfect Ones Who Came Before Us wanted us to live.
Lamar Smith, and most of the rest of the GOP, needs to read the 9th Amendment, the one Amendment that ‘opens’ the Constitution (thanks to Madison, by the way) – “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
@Candide — Adding to Hunter above, I think that there would be no problem with states that specifically ban vs. specifically authorize gay marriage. The whole point here is that states get to decide whether or not, as a wildly random example, a certain couple can get married … but once a couple has gotten married in ANY state, that marriage must legally be recognized by EVERY state.
And yes, of course that would mean that gay people would just need to go to one of the authorized states, get married, and go back home, in order to be gay married in a state that specifically bans gay marriage. That’s why DOMA was created in the first place.
-Ian