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Gay marriage has a popular majority in the UK and Ireland in both polls and referenda. Is it that different in the US? Interpreting old documents is hard, and w

Gay marriage has a popular majority in the UK and Ireland in both polls and referenda. Is it that different in the US? Interpreting old documents is hard, and where there is silence or substantial ambiguity it seems right to err on the side of popular opinion.

anonunivgrad 6y ago
You can't really defend the US Supreme Court's actions on gay marriage from any legal viewpoint other than "because five justices said so" and "what are you gonna do about it." Popular opinion is not the talisman of judicial interpretation. If the public wants its way, they can vote for it. For what it's worth, the public did not support gay marriage until after the federal courts made it a fait accompli. E.g. In a referendum, California voted to ban gay marriage in 2008. What the federal courts in America did is overturn the standing will of the people as it existed in the laws of the majority of US states.
- eropple 6y ago
  What "the federal courts in America" did is state that the rights of other human beings are not up for a vote.
  - anonunivgrad 6y ago
    The Supreme Court is not a tribunal on moral philosophy. It's tasked with interpreting the law, no more and no less. And in fact, it was up for a vote. Except the vote was of 9 people with lifetime tenure.
  - rayiner 6y ago
    “Rights” are what other human beings agree to recognize. That’s just the nature of law as a construct. What the federal courts in America have done is set themselves up as a tribunal of elites for deciding moral issues that other countries decide democratically. This unsurprisingly causes a lot of friction. Same sex marriage actually wasn’t one of those areas—US opinion and that in other developed countries wasn’t far off, and it was legalized after it hit majority support. And Obergefell has a much stronger basis in law than other Supreme Court social decisions. There is a long line of precedent recognizing that marriage is a “fundamental right” protected by the constitution. But abortion and religion in schools are examples of where the court is significantly out of step with both the letter of the law and public opinion. Public opinion in America supports abortion in the first trimester and or after that. That’s the same moral balance as reflected in the laws of say Denmark, France, Spain, Germany, and Italy (where abortion is generally illegal after 10-14 weeks). But under Roe abortion cannot be banned until the end of the second trimester. So our elite tribunal has imposed an abortion regime in the US that’s inconsistent with what more liberal Europeans have. Same thing for religion in schools. 2/3 of Americans oppose the ban on school prayer. By contrast, instruction in public schools is a legal right in much of Europe, including the UK and Germany. Being out of step with the public can be justified if that’s what the letter of the law requires. What’s most perplexing about Roe in particular is that it’s out of step with public opinion (broader than what the public wants) and also has no basis in the constitutional text. What’s the source of the court’s authority in that context?
    - tptacek 6y ago
      A difference between us and Europe is that our country was founded on maintaining a separation between the state (which runs the schools we're talking about) and religion, and Germany wasn't. The entire premise of the Constitution --- really of any constitution --- is to insulate those kinds of governing principles from public opinion.
      - anonunivgrad 6y ago
        What makes “killing the unborn is wrong” impermissible religious influence but “killing already-born people is wrong” not? Or why is it okay for people to vote to take one man’s property away to give to another, “because that is just”? Aren’t all of those statements equivalently “religious”? On what basis are people to make decisions if not by some set of moral axioms?
      - rayiner 6y ago
        Article 137 of the Weimar constitution, which is part of the German Basic Law, says: “There shall be no state church.” I think the best reading of the Establishment Clause is that it prohibits exactly that, plus Congress also can’t regulate state established churches (which existed at the time). See: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2430&context=hlr https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi... https://startingpointsjournal.com/what-is-the-original-meaning-of-the-establishment-clause/ https://startingpointsjournal.com/what-is-the-original-meani... > House’s final version: “Congress shall make no law establishing religion.” > The Senate responded with: “Congress shall make no law establishing articles of faith or a mode of worship.” > The Conference Committee came up with the final version, “Congress shall make no law respecting an establishment of religion.” The Committee’s addition of “respecting an” was not explained at the time but has been the subject of a great deal of recent commentary. In its own time, however, the clause generated none of the heated arguments that had accompanied church–state issues in the states.
        tptacek 6y ago
        I stand corrected, with respect to Germany! Thanks!
- courtf 6y ago
  There's a straightforward argument for gay marriage based on bans essentially being discrimination based on sex: A woman may marry a man, but a man may not. Chief justice Roberts made this point during arguments in obergefell v. hodges. And you're incorrect about the timeline. Gay marriage was approved of by a majority of Americans somewhere around 2011-2012. The supreme court decision was 2015. See my other comment in this chain for polling data.
dan-robertson 6y ago
Gay marriage had a popular majority in favour before it became legal (though obviously a popular majority doesn’t necessarily mean much in the US system.) Compare this to interracial marriage which was not approved of by the majority of the population for many years after it was made fully legal across the country .
- courtf 6y ago
  This lays out the timeline of the shift in popular opinion for gay marriage: https://news.gallup.com/poll/117328/marriage.aspx https://news.gallup.com/poll/117328/marriage.aspx Here's polling on interracial marriage: https://news.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx https://news.gallup.com/poll/163697/approve-marriage-blacks-... Interracial marriage became legal nationwide in 1967 with Loving v Virginia, but wasn't approved of by the majority of Americans until 1997. Edit: I only add this to support the the comment replied to.
  - runarberg 6y ago
    Can we really trust polling data from the 60s?
  - dan-robertson 6y ago
    Thanks for the stats. I guess I was a bit wrong in what I wrote above.
    - courtf 6y ago
      I think you got it right, just wanted to provide some supporting data, even if polling is a little fuzzy.
- drocer88 6y ago
  https://en.wikipedia.org/wiki/2008_California_Proposition_8 https://en.wikipedia.org/wiki/2008_California_Proposition_8
LudwigNagasena 6y ago
> where there is silence or substantial ambiguity it seems right to err on the side of popular opinion If “it seems right” is a good way to run a country, why do we even have laws? I don’t think abusing silence and substantial ambiguity is a coherent approach to legislation. If something important in the law is ambiguous, the correct approach in my view is to make it unambiguous by the usual legislative process.
dmurray 6y ago
> Is it that different in the US? It's certainly different from state to state. Most cases that reach the US Supreme Court aren't about whether X is good or bad (let's say X is abortion or gay marriage) but whether X is so good that the Federal government should compel states to allow it, or so bad that it should compel states to forbid it.
- dragonwriter 6y ago
  > Most cases that reach the US Supreme Court aren’t about whether X is good or bad (let’s say X is abortion or gay marriage) but whether X is so good that the Federal government should compel states to allow it, or so bad that it should compel states to forbid it. No, most of them aren’t about good or bad, which is a policy judgement generally reserved for the political branches, at all. Its about whether X or Y is consistent with the law (including, as the paramount law, the Constitution of the United States.)
rayiner 6y ago
7 of 27 EU states have a constitutional ban on same-sex marriage. The EU Human Rights Court has not stepped in to overturn those bans: https://eclj.org/marriage/the-echr-unanimously-confirms-the-non-existence-of-a-right-to-gay-marriage https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... In 2016, it held unanimously that the European Convention on Human Rights doesn’t protect same-sex marriage. In the EU countries where it has been legalized, that was done by statue. In the US, those issues are handled through court cases, regardless of where public opinion stands. For example, elective abortions (without health risks or something else) in the second trimester or later is very unpopular in the US and the EU. Only about a quarter of people think it should be generally legal after the first trimester: https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx https://news.gallup.com/poll/235469/trimesters-key-abortion-.... That matches up with the law in most of the EU, where the limit for elective abortions is 10-14 weeks. (As I recall, the UK is the exception at 24 weeks.) The US constitution doesn’t say anything about abortion, or anything that could really be construed to be about abortion, but the Supreme Court has interpreted it to protect abortion up to viability, usually 22-24 weeks. So the Supreme Court has interpreted the constitution, which says nothing about abortion, to create an abortion right so broad France or Germany’s or Denmark’s abortion laws would be invalid in the US. The topping on that cake is that the US is that the US is the most religious developed country in the world, more so than countries like Poland. Which is why Supreme Court appointments get so heated here.

anonunivgrad 6y ago

You can't really defend the US Supreme Court's actions on gay marriage from any legal viewpoint other than "because five justices said so" and "what are you gonna do about it." Popular opinion is not the talisman of judicial interpretation. If the public wants its way, they can vote for it. For what it's worth, the public did not support gay marriage until after the federal courts made it a fait accompli. E.g. In a referendum, California voted to ban gay marriage in 2008. What the federal courts in America did is overturn the standing will of the people as it existed in the laws of the majority of US states.

eropple 6y ago
What "the federal courts in America" did is state that the rights of other human beings are not up for a vote.
- anonunivgrad 6y ago
  The Supreme Court is not a tribunal on moral philosophy. It's tasked with interpreting the law, no more and no less. And in fact, it was up for a vote. Except the vote was of 9 people with lifetime tenure.
- rayiner 6y ago
  “Rights” are what other human beings agree to recognize. That’s just the nature of law as a construct. What the federal courts in America have done is set themselves up as a tribunal of elites for deciding moral issues that other countries decide democratically. This unsurprisingly causes a lot of friction. Same sex marriage actually wasn’t one of those areas—US opinion and that in other developed countries wasn’t far off, and it was legalized after it hit majority support. And Obergefell has a much stronger basis in law than other Supreme Court social decisions. There is a long line of precedent recognizing that marriage is a “fundamental right” protected by the constitution. But abortion and religion in schools are examples of where the court is significantly out of step with both the letter of the law and public opinion. Public opinion in America supports abortion in the first trimester and or after that. That’s the same moral balance as reflected in the laws of say Denmark, France, Spain, Germany, and Italy (where abortion is generally illegal after 10-14 weeks). But under Roe abortion cannot be banned until the end of the second trimester. So our elite tribunal has imposed an abortion regime in the US that’s inconsistent with what more liberal Europeans have. Same thing for religion in schools. 2/3 of Americans oppose the ban on school prayer. By contrast, instruction in public schools is a legal right in much of Europe, including the UK and Germany. Being out of step with the public can be justified if that’s what the letter of the law requires. What’s most perplexing about Roe in particular is that it’s out of step with public opinion (broader than what the public wants) and also has no basis in the constitutional text. What’s the source of the court’s authority in that context?
  - tptacek 6y ago
    A difference between us and Europe is that our country was founded on maintaining a separation between the state (which runs the schools we're talking about) and religion, and Germany wasn't. The entire premise of the Constitution --- really of any constitution --- is to insulate those kinds of governing principles from public opinion.
    - anonunivgrad 6y ago
      What makes “killing the unborn is wrong” impermissible religious influence but “killing already-born people is wrong” not? Or why is it okay for people to vote to take one man’s property away to give to another, “because that is just”? Aren’t all of those statements equivalently “religious”? On what basis are people to make decisions if not by some set of moral axioms?
    - rayiner 6y ago
      Article 137 of the Weimar constitution, which is part of the German Basic Law, says: “There shall be no state church.” I think the best reading of the Establishment Clause is that it prohibits exactly that, plus Congress also can’t regulate state established churches (which existed at the time). See: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2430&context=hlr https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi... https://startingpointsjournal.com/what-is-the-original-meaning-of-the-establishment-clause/ https://startingpointsjournal.com/what-is-the-original-meani... > House’s final version: “Congress shall make no law establishing religion.” > The Senate responded with: “Congress shall make no law establishing articles of faith or a mode of worship.” > The Conference Committee came up with the final version, “Congress shall make no law respecting an establishment of religion.” The Committee’s addition of “respecting an” was not explained at the time but has been the subject of a great deal of recent commentary. In its own time, however, the clause generated none of the heated arguments that had accompanied church–state issues in the states.
      - tptacek 6y ago
        I stand corrected, with respect to Germany! Thanks!
courtf 6y ago
There's a straightforward argument for gay marriage based on bans essentially being discrimination based on sex: A woman may marry a man, but a man may not. Chief justice Roberts made this point during arguments in obergefell v. hodges. And you're incorrect about the timeline. Gay marriage was approved of by a majority of Americans somewhere around 2011-2012. The supreme court decision was 2015. See my other comment in this chain for polling data.

dan-robertson 6y ago

Gay marriage had a popular majority in favour before it became legal (though obviously a popular majority doesn’t necessarily mean much in the US system.) Compare this to interracial marriage which was not approved of by the majority of the population for many years after it was made fully legal across the country .

courtf 6y ago
This lays out the timeline of the shift in popular opinion for gay marriage: https://news.gallup.com/poll/117328/marriage.aspx https://news.gallup.com/poll/117328/marriage.aspx Here's polling on interracial marriage: https://news.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx https://news.gallup.com/poll/163697/approve-marriage-blacks-... Interracial marriage became legal nationwide in 1967 with Loving v Virginia, but wasn't approved of by the majority of Americans until 1997. Edit: I only add this to support the the comment replied to.
- runarberg 6y ago
  Can we really trust polling data from the 60s?
- dan-robertson 6y ago
  Thanks for the stats. I guess I was a bit wrong in what I wrote above.
  - courtf 6y ago
    I think you got it right, just wanted to provide some supporting data, even if polling is a little fuzzy.
drocer88 6y ago
https://en.wikipedia.org/wiki/2008_California_Proposition_8 https://en.wikipedia.org/wiki/2008_California_Proposition_8

LudwigNagasena 6y ago

> where there is silence or substantial ambiguity it seems right to err on the side of popular opinion If “it seems right” is a good way to run a country, why do we even have laws? I don’t think abusing silence and substantial ambiguity is a coherent approach to legislation. If something important in the law is ambiguous, the correct approach in my view is to make it unambiguous by the usual legislative process.

dmurray 6y ago

> Is it that different in the US? It's certainly different from state to state. Most cases that reach the US Supreme Court aren't about whether X is good or bad (let's say X is abortion or gay marriage) but whether X is so good that the Federal government should compel states to allow it, or so bad that it should compel states to forbid it.

dragonwriter 6y ago
> Most cases that reach the US Supreme Court aren’t about whether X is good or bad (let’s say X is abortion or gay marriage) but whether X is so good that the Federal government should compel states to allow it, or so bad that it should compel states to forbid it. No, most of them aren’t about good or bad, which is a policy judgement generally reserved for the political branches, at all. Its about whether X or Y is consistent with the law (including, as the paramount law, the Constitution of the United States.)

rayiner 6y ago

7 of 27 EU states have a constitutional ban on same-sex marriage. The EU Human Rights Court has not stepped in to overturn those bans: https://eclj.org/marriage/the-echr-unanimously-confirms-the-non-existence-of-a-right-to-gay-marriage https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... In 2016, it held unanimously that the European Convention on Human Rights doesn’t protect same-sex marriage. In the EU countries where it has been legalized, that was done by statue. In the US, those issues are handled through court cases, regardless of where public opinion stands. For example, elective abortions (without health risks or something else) in the second trimester or later is very unpopular in the US and the EU. Only about a quarter of people think it should be generally legal after the first trimester: https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx https://news.gallup.com/poll/235469/trimesters-key-abortion-.... That matches up with the law in most of the EU, where the limit for elective abortions is 10-14 weeks. (As I recall, the UK is the exception at 24 weeks.) The US constitution doesn’t say anything about abortion, or anything that could really be construed to be about abortion, but the Supreme Court has interpreted it to protect abortion up to viability, usually 22-24 weeks. So the Supreme Court has interpreted the constitution, which says nothing about abortion, to create an abortion right so broad France or Germany’s or Denmark’s abortion laws would be invalid in the US. The topping on that cake is that the US is that the US is the most religious developed country in the world, more so than countries like Poland. Which is why Supreme Court appointments get so heated here.