[quote]vroom wrote:
Boston,
Yes, so, while I do realize the rest of your response was about what would happen if Pandora’s Box was open, but there is no need to open that box in order to deal with gay marriages effectively.
I seriously doubt that any large number of people in this country would want that box opened up, whether they are liberal or conservative. In fact, pointing out the ways that an inappropriate court finding could open up that box is certainly one way to keep it shut.
Why can’t we find that preference is simply an aspect of determining the sex of a person such that it, and hence gays, can be afforded a higher standard of protection?
Whether or not a person is male is not defined by whether or not they prefer humans to beasts. Neither is it defined by the age of the partner they would prefer. Finally, neither is it determined by how many partners they might wish.
All of these other issues are outside the realm of the sex of an individual, and as such, do not need nor deserve any type of special protection, as has presumably been afforded race and sex.
I know you aren’t in favor of it, and that is fine. But, realistically, is this not a plausible outcome, given the scenario that I’ve been desribing?
[/quote]
vroom,
As I said, it’s not impossible. In fact, if the USSC were to decide to be activist and modify its existing 14th Amendment “suspect class” reasoning in order to include sexual preference within “women” (because currently men aren’t protected that way Constitutionally, at least to my knowledge – analysis under the Civil Rights Act is different, and I believe more gender neutral), that would be infinitely preferable than the creation of an individual right to marriage.
However, this would indeed require some active expansion of Constitutional law from the current understanding. We can’t simply decide that’s the definition – the USSC would have to officially make a precedential ruling that makes that reasoning possible. Including sexual preference under the “suspect class” for women simply doesn’t work under current precedent.
And that’s the rub, because that would involve the USSC very deeply in a political question. Firstly, I think the USSC would look to avoid such a case, but if there are dueling interpretations in the circuit courts they may feel compelled to take it up. And I think that if a case looked like it was going to get anywhere near the USSC in the near future (the next few years at least), what you would get would be a huge push for a Constitutional Amendment to prohibit precisely that outcome. And as of right now I think it would pass – I think the fact that there isn’t a scare case on the horizon is the only thing really stopping it right now.
Basically, the underlying question is a political question – a values question. And those are the province of the legislature, which makes laws. Courts are supposed to interpret current laws, not make new ones. When they do enter the realm of legislating, they take contentious political issues out of the political process, and that creates things like the climate we have w/r/t abortion today.
And besides that, it’s the antithesis of respresentative government to have unelected judges making law. Given that our system of government has premised its legitimacy on the consent of the governed, I think it is highly problematic to have judicial bodies engaged in lawmaking. And this goes triple for making up Constitutional provisions.
