Same Sex Marriage Decisions: The Constitution Protects Gays But Not Blacks or Women

Your vote counted. No it didn’t.

Last week, one unelected judge overturned the will of 1,317,178 North Carolinians when he declared North Carolina’s definition of marriage in violation of the United States constitution.  Judge Max Cogburn, appointed by President Obama, said that the definition 61 percent of voters approved just two years ago violated the “equal protection” clause of the 14th Amendment—the same rationale used by judges elsewhere to violate the expressed will of the people.  This is beyond absurd.

It’s absurd rationally because everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex. That law treats all people equally, but not every behavior they may desire equally. To say that people with homosexual desires do not have equal rights would be like saying people with desires to marry their relatives or more than one person don’t have equal rights. Same sex marriage, incestuous marriage, polygamous marriage, and natural marriage are all different behaviors with different outcomes, so the law rightfully treats them differently.  Natural marriage perpetuates and stabilizes society, which is why the government promotes it in the first place.  The state is not in the marriage business because two people “love” one another. (Click here to see why the comparison to inter-racial marriage is invalid.)

These rulings are also absurd constitutionally.  The 14th Amendment of the U.S. Constitution was passed in 1868 to prevent states from discriminating against newly freed slaves.  At that time blacks and women didn’t even have the right to vote, yet no one ever thought a court could use the “equal protection” clause to change state voting laws. So why do courts think they can use it now to change state marriage laws?  Are we to believe that “equal protection” does not guarantee a woman’s right to vote but does guarantee a woman’s right to marry another woman?  What planet are these judges ruling from?

Why do you think the Federal and State governments went through the arduous constitutional amendment process to give blacks and women the right to vote? Courts knew they couldn’t act as legislatures to fix the problem. Congress and State legislatures had to vote to add the 15th and 19th Amendments in 1870 and 1920 respectively.

There was no rational case to preclude people from voting because of their race or sex. But there certainly is a rational case to preclude changing marriage. It’s the one institution best capable of creating and then raising children by encouraging their mothers and fathers to stay together. It’s the basis of a civilized society. We can’t build and maintain a civilization through homosexuality or by equating it to what moms and dads do. You may claim that’s bigotry, but it’s really just biology. (Sorry, I didn’t set up the facts of nature. I have noticed, however, that conservatives attempt to change their behavior to fit reality, while liberals attempt to change reality to fit their behavior.)

Anyone who wants to change laws should convince their fellow citizens to do so at the ballot box, not through unelected judges.  Unfortunately, activist judges won’t honor the ballot box. 41,020,568 people across more than half the states have voted to recognize marriage for what nature’s design says it is—the union of one man and one women.  Yet just 23 unelected judges have overturned those 41 million people across about 20 states!  I don’t care where you stand on the marriage issue: when 23 people use their personal policy preferences to overrule those of 41 million Americans, we are no longer free or equal.

Of the approximately 30 states that now have same-sex marriage (it changes every day), only one state has done it through popular vote (Maine). The people of Maryland and Washington narrowly voted not to overrule the same-sex marriage provisions their legislatures had approved.  Eight laws were changed by state legislatures without popular input. Activist judges overruled the people in the remaining states.

As unwise as I think changing the institution of marriage is, I can at least respect the process when it is done democratically.  For all their talk about equality, the other side does not respect democracy unless the vote comes out their way.

What do you think would happen if some federal judge wrenched a passage of the Federal Constitution out of context and summarily struck down Maine’s law democratically decided law approving same-sex marriage?  Do you think the people preaching “tolerance”—including their cheerleaders in the media—would tolerate such judicial abuse?  The airwaves would be blasting howls of unfairness and calls for judicial impeachment.  Yet when the same thing is done to strike down marriage laws based in biological reality—laws passed by millions of voters—liberals celebrate that those voters have been disenfranchised.  Saying that one judge’s vote counts more than the votes of millions of Americans is an unequal way to advance “equality.”

“Oh, but the Constitution evolves,” some say.  “We don’t have to look at what was intended in 1868.”

If that’s the case, then why have a constitution at all?  If judges can make the law say anything they want, then how can we govern ourselves?  We can’t.  It also means that none of our rights are secure (including new-found “rights” to same-sex marriage).  What’s to stop some rogue judge from taking away your freedom of speech or religion because the constitution has “evolved” in just the way his liberal mind desires?

Oops, that’s already happened, as many bakers, florists, photographers, and conscientious people in other businesses have discovered.  If you don’t agree to celebrate same-sex marriages, you will be sued, fined, fired, and perhaps even jailed.  All in the name of “tolerance, inclusion and diversity.”

And parents, don’t think you have the right to educate your children with certain moral values in public schools. Same-sex marriage ends your parental rights there as well.

What?  You voted and your values won?  Sorry, your votes don’t count.  Some people get more “equal protection” than you do.  A judge said so.

The truth is, nowhere does the Constitution say that the courts are the final word on what laws mean or what laws are valid.  We have three co-equal branches of government. We also have a federal government that is constitutionally subordinate to state governments on most issues, including this issue of same-sex marriage (that’s one thing the Supreme Court got right in last year’s DOMA decision).

America needs a state governor who still believes in America—a governor willing to take a page from President Andrew Jackson who once rebuffed a Supreme Court decision against the state of Georgia by telling Chief Justice Marshall, “John Marshall has made his decision; now let him enforce it.” He called the decision “stillborn.”

America needs an Andrew Jackson governor—as statesman who peacefully but firmly tells the court, “Your decision violates the Constitution and the rights of my citizens to govern themselves.  It will not be enforced in this state.  If you want to change our laws, then respect our people and our Constitution by convincing us to change our minds in the voting booth.”

While that may create a constitutional crisis, our Constitution is already in crisis! What can be lost that hasn’t ready been lost?  We will not regain our right to self-government or maintain ordered liberty if we continue to cede all power to the judicial branch or to the federal government.

Are there any statesmen left in America?

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78 replies
  1. John Moore says:

    What if only Democrats were allowed to run for office? If you complained, I could say “Everyone already has equal voting rights. Every person has the same equal right to vote for a candidate from the Democratic party. The voting laws treat all people equally.” This is the same kind of cynical argument you’re using against gay marriage.

    —-

    As for your main argument that the Supreme Court couldn’t protect the voting rights of blacks or women, the reason is not due to some principle of human rights, but it’s simply because Article I, Section 4 of the Constitution gave each state control over elections. See, the Court can’t contradict the Constitution, and that’s why we needed amendments for voting rights.

    You mention how “activist judges won’t honor the ballot box,” but that just shows your ignorance of how the U.S. government is supposed to work. The courts are a separate branch of government, and the judges are not supposed to just follow the voting majority. They’re only supposed to interpret the written law. Have you ever heard of tyranny of the majority? I guess you think the majority should rule no matter what.

    —-

    You write, “Nowhere does the Constitution say that the courts are the final word on what laws mean or what laws are valid.” But just look at Article III. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution …” It’s pretty clear.

    And if the courts aren’t the final word, who is? Are you going to seize power yourself? Or should we have a tyranny of the majority? What kind of new constitution will you write to replace our current one?

    Reply
    • IvanRider says:

      That comment is beyond desperate. Political parties are social constructs put together because of differing worldviews. Gender is a matter of biology, however. Only a loony tune equates the two. Also, your defense of pervert pseudomarriage and pervertfascism fall flat in the face of evidence. When boy meets girl and they’re told they can’t marry, they run away and live together somewhere else. When perverts are told they can’t shove their butts in our faces, they sue us, jail us, and torch our shops. And shove their butts in our faces anyway. A different spirit moves them, and that cannot be ignored.

      Also, a platform of only Democrats allowed means that the term “Democrat” loses its meaning. Because then everyone would be one, so no one would be one. It’d be every man for his own position. But if marriage means anything, it essentially means nothing. So a definition of marriage exclusive to man and woman has meaning. A definition so broad, it can include man and picnic table, essentially means nothing. There’s no sacred bond; only a legal contract that is easily dismissed. And that is an abomination and affront to human sanity.

      Reply
  2. Stephen B says:

    “It’s absurd rationally because everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex.”

    And now everyone has the same right to marry someone of the same sex. So by your own logic you can’t call this a special right for gays, Frank, as you have the same right to marry another man as a gay man does.

    ” We can’t build and maintain a civilization through homosexuality”

    Who’s saying we should? We can’t maintain a civilisation through apologetics and writing books and giving lectures – if everyone had your job there’d be no-one to harvest grain and we’d all starve. Does that mean your job should be banned? No. Likewise we can’t manintain a civilisation if eveyone chooses the celibate life of being a monk or nun. You can apply this argument to anything. Objecting to gays on this basis is no different to objecting to anyone who chooses not to have kids.

    Reply
  3. toby says:

    “Natural marriage perpetuates and stabilizes society, which is why the government promotes it in the first place. The state is not in the marriage business because two people “love” one another.”

    Heterosexual copulation perpetuates society through birth. I don’t see that it stabilizes anything. The article you link to mentions ancient Greece and Rome as recognizing marriage as between a man and a woman . . . certainly didn’t perpetuate and stabilize their societies. Or was it some evil seed of homosexuality that caused their disappearance? Is that what happened in Europe in the 1930s and 1940s?

    Frank, would you agree that people have issues like hypo- and hyper-thyroidism? And would you also agree that some people have different mental issues like autism and depression? Those things are all what we’d call bad things, but there are also good things. Some people have advantageous mental quirks like the ability to do complex math in their head in a second or physical issues that make them able to make more muscle than other people. It’s, as you say, biological. So is homosexuality, though I’m sure you probably believe it’s the choice of that person to be attracted to the same sex, and if you do I don’t quite know what to make of you. Let’s see you go make out with another man. Could you? Could you choose to do that? Not to spite someone challenging you, but because you tell yourself, “I don’t want women anymore, I want men.”

    You’ve talked in the past about diseases linked to homosexuality, but you’re just sharpshooting what you yourself (because of your religion) don’t approve of. Many women every year still die from childbirth. Should we all be against that too? In fact, I think the last time I looked into it more women died in childbirth every year than people died of AIDs.

    You just don’t like it because of your religion. That’s it. That’s all.

    And there’s a little saying or other that you might have said a few hundred times in your life, but you really are showing here that you don’t really believe in it. It goes, “. . . and liberty and justice for all.” And here I defer to John Moore’s post above on the tyranny of the majority.

    Reply
  4. Jon says:

    Christian apologists often write that when they are majority they should have right to vote about human rights. So are you ok if Islamists of ISIS vote that non-Muslims don’t have right to live?

    Frank Turek said:
    “I don’t claim that “everyone already has equal marriage rights [to marry someone of the opposite sex]”. Again Islamists in ISIS use the same logic. Everyone in ISIS have equal religious rights [to only believe in Allah]. Are you ok with this kind of equal rights caveat?

    The claim “If you don’t agree to celebrate same-sex marriages, you will be sued, fined, fired, and perhaps even jailed” is not true. If you disagree on this and you don’t get sued, fined, fired, or jailed. In the USA there is still a freedom of opinion.

    Frank Turek said:
    “And parents, don’t think you have the right to educate your children with certain moral values in public schools. Same-sex marriage ends your parental rights there as well.”
    How is this different from inter-racial marriage case?

    Frank Turek said:
    “I didn’t set up the facts of nature [that we can’t build and maintain a civilization through homosexuality or by equating it to what moms and dads do]”
    Can you please explain what there facts are?

    Reply
  5. Stephen B says:

    “the same rationale used by judges elsewhere to violate the expressed will of the people.”

    Such as in 1967 in Virginia when judges ruled that mixed race marriage should be allowed, against the will of the people – the majority of whom opposed mixed race marriage.

    That’s what judges are supposed to do – make a judgement on what is constitutional, irrespective of the view of the people. Frank, I’m baffled by how you can argue this is ‘absurd’ simply because in this occasion you happen to agree with people. The judge was doing his job regardless of whether you agree with the majority or the minority.

    Reply
  6. Luke says:

    One wonders if in writing that the 14th amendment protects gays, “but not Blacks”, Dr. Turek is simply unaware that the 14th amendment is the thing that basically undid de jure racial discrimination in the US — from invalidating Dred Scott to providing the basis for Brown v Board — or if believes his readers are.

    *sigh*

    Reply
  7. DagoodS says:

    Frank Turek,

    North Carolina, by majority vote, considers homosexual sex a crime—a felony. N.C. Gen. Stat. 14-177. As you know, this (and all other such statutes in other states) was deemed unconstitutional in Lawrence v Texas.

    For the exact same reasons utilized in this blog post, would you equally argue homosexual sex should be criminalized in North Carolina? Why aren’t you all pushing to make gay sex illegal? Instead you try to get through the back door (denying same-gender marriage) what you can’t get through the front (criminalizing gay sex entirely.)

    Reply
  8. Frank Turek says:

    Gentlemen,

    Thanks for your comments. My point is that if we don’t use the 14th amendment as intended, then we no longer govern ourselves. Unelected judges are our dictators. Now, you may get a good result from a bad process, as in Loving or Brown. But more often, you get a bad result from a bad process, like the recent activist decisions. If you want to change the constitution, then use the amendment process. But don’t tell us that constitution grants a right to same-sex marriage because it clearly does not, and never has. If the 14th amendment didn’t intend to give women the right to vote, it surely didn’t intend to give women the right to marry other women!

    Now John, you raise an excellent question. Who has the final word? Certainly the majority can be wrong, but so can judges. Remember, the majority gave us our Constitution, which works well when we actually use it. But the Constitution does not say that the judicial branch gets to overrule duly passed laws. The court gave itself that right in Marbury vs. Madison (1803), which itself was a case of judicial activism. Hence, knowing it lacked constitutional authority, Andrew Jackson ignored the court about 30 years later. This only illustrates that the maxim of John Adams that our constitution was made for only a religious and moral people– it is inadequate to govern anyone else. Bad people will get around or ignore good laws.

    I tend to think William Buckley was on to something when he said that he would rather be ruled by the first 100 names in the Boston phone book than the faculty at Harvard University. Of course there is a law above majority opinion, and that is the natural law derived from God’s nature (“We hold these truths to be self-evident…”). But if you want to overrule the majority and appeal to natural law (as we did prosecuting the Nazis), then you have to be a theist and somehow show that God thinks homosexual relations and same-sex marriage are rights. Not an easy task for theists (and impossible for atheists). Our founders called homosexual relations “crimes against nature” due to their incongruity with the natural design of the human body.

    By the way, Dred Scott was invalidated by the Civil War and the 13th through 15th Amendments. Those Amendments required votes of the Congress and the states. It wasn’t judicial activism.

    Blessings,

    Frank

    Reply
    • Stephen B says:

      “Our founders called homosexual relations “crimes against nature” due to their incongruity with the natural design of the human body.”

      They also kept slaves and enrshrined in law that black men were worth less than whites. I’m guessing you disagree with them on that?

      Reply
      • GKC says:

        Logical fallacies…a non-sequitur and a type of ad hominem attack on the character of the founders because they were men of their times. Doesn’t deal with the logic of Frank’s argument. Their position for or against slavery does not have anything to do with their natural law and societal arguments against homosexual acts.

        Reply
    • Stephen B says:

      “I tend to think William Buckley was on to something when he said that he would rather be ruled by the first 100 names in the Boston phone book than the faculty at Harvard University.”

      Both you and he are/were white middle class Christian men, so sure – you have the least need of protection from ‘the tyranny of the majority’.

      But again, how can you say this was ‘protecting gays’ when by your own logic, the right to marry another man is as much a law for you as it is for gay men. After all, it gives no more extra rights to gay men than it does to you. You’re just as able to take advantage of that law as they are, so you can’t argue it’s ‘protecting gays’ any more than it’s protecting you.

      That’s exactly the same logic you use when you say that gay men have the same right to marry women as you do. That logic, quite neatly, defeats your own argument.

      Reply
      • Luke says:

        This logic would also work to say that everyone has equal rights if marriage was limited to marrying people named Bob.

        “Everyone has the same right! The right to marry someone named Bob. You, me, everyone. We’re all equal. What on earth could be the problem?”

        Reply
        • Terry L says:

          Hey guys!

          Dr. Turek’s statement isn’t typically given as an argument, but as a defense against claims that prohibition of gay marriage is a violation of equal protection. It is not. The law equally prohibits a behavior for all of our citizens, just as it equally forbids rape to all. Equal protection is not an issue. By (correctly) pointing this out, you are proving his point.

          The question is not equal protection, but whether homosexual marriage should or should not be promoted, permitted, or prohibited. Equal protection is a red herring that only distracts from the underlying issue that should be the main focus of discussion.

          Reply
  9. Luke says:

    Frank Turek said:“By the way, Dred Scott was invalidated by the Civil War and the 13th through 15th Amendments. Those Amendments required votes of the Congress and the states. It wasn’t judicial activism.”

    So then taking the above information, I’ll ask simply: did the 14th amendment help and protect African Americans?

    (And simply, you are incorrect. It was invalidated by the Civil Rights act of ’66 (19th century), and the 14th amendment. I’ll quote the never, ever wrong Wikipedia’s article titled ‘Dred Scott v. Sandford’: “[The Decision] was functionally superseded by the Civil Rights Act of 1866 and by the Fourteenth Amendment to the United States Constitution, which gave blacks full citizenship”.)

    The 14th amendment has been used by courts, up to the highest court, to make decisions that both conservatives and liberals don’t like. The 14th amendment was used to make George W. Bush president (the equal protection clause is what Bush v Gore was based on), for example.

    I understand the fact that it’s hard to accept when unelected judges make decisions we don’t like. It is the system though. It’s one thing to complain, but another to propose solutions. What do you offer?

    Thanks,

    Luke

    Reply
  10. Frank Turek says:

    Luke, I think judge Bork’s proposal made sense: If we are assuming that the judiciary has the authority to judge what laws are constitutional, then a Supreme Court decision could be overturned by some kind of super majority in the Congress. Moreover, the point stands that Dred Scott was overturned by votes of legislatures not judges. Judges later rightfully dissed the decision, but only after the legislature had spoken.

    Stephen, saying that the founders were right about homosexuality doesn’t mean they were right about everything. So why were they wrong about homosexuality and by what standard do you judge them wrong? What standard does atheism afford? Assuming you have a standard, what argument can you provide for same sex marriage that doesn’t equally work for polygamous or incestuous marriage? Just claiming they are not the same behaviors doesn’t work. The argument used — the nebulous term “equality”– can be used to support those arrangements as well.

    Thanks for your comments.

    Blessings,

    Frank

    Reply
    • Stephen B says:

      “Stephen, saying that the founders were right about homosexuality doesn’t mean they were right about everything”

      Then what worth is there in quoting their opinion on gays? You quote them on that to defend your own views, but dismiss their opinions on blacks. That’s cherry picking.

      And who mentioned atheism? Let your arguments stand on their own merits – the religion of those pointing out the fallacies of those arguments is irrelevant!

      As I pointed out, your arguments undercut themselves. Questioning the religion of the people who point this out doesn’t help you.

      Reply
  11. Frank Turek says:

    Hi Stephen,

    I fail to see how anything you’ve said refutes my position. SSM and natural marriage are different BEHAVIORS with different outcomes. No one is being discriminated against when the government treats different BEHAVIORS differently. If they weren’t different behaviors then no one would be arguing for SSM. They would simply marry someone of the opposite sex– since it’s supposed to be the same behavior– and be done with it.

    However, you’re absolutely right that if atheism is false, Christianity isn’t necessarily true. But that wasn’t my point. What I am asking– and I think it is a fair question– is this: by what objective moral standard are you as an atheist (or agnostic) declaring my position immoral and yours moral?

    With regard to “crimes against nature” I don’t think I need to get explicit with you about male homosexual contact (this is a family friendly site after all). It goes against the natural design of the body and results in serious negative medical consequences. For example, “The data, presented at CDC’s 2010 National STD Prevention Conference, finds that the rate of new HIV diagnoses among men who have sex with men (MSM) is more than 44 times that of other men and more than 40 times that of women.” http://factsaboutyouth.com/wp-content/uploads/CDC-Press-Release.pdf. While a society might permit behavior that leads to such harmful outcomes, why should a society promote it (which is what SSM does)?

    Homosexuality is a vast topic. I’ve written several articles and entire book on it (many of the articles over the past 6 years are here: http://townhall.com/columnists/frankturek/). If you really are interested, I’d be happy to send you a pdf of that book. Just let me know. Unfortunately, I don’t have the time to cover all the issues again on this blog.

    Thanks again for participating.

    Blessings,

    Frank

    Reply
    • Stephen B says:

      “I fail to see how anything you’ve said refutes my position.”

      Frank, your position is self-refuting.

      You said striking down the definition of marriage law was “protecting gays” because it laid the path to allow gays to marry. However, you also argue “everyone already has equal marriage rights” because “every person has the same equal right to marry someone of the opposite sex”.

      By this logic, a law allowing same sex marriage would also “treat all people equally”, in that “every person has the same equal right to marry someone of the same sex”.

      Given this – given your OWN logic – a law allowing same sex marriage no more protects gays than it protects you, because it would give you the same right to marry another man.

      Therefore you can’t argue that this is offering special protection to gays.

      Reply
    • Stephen B says:

      “However, you’re absolutely right that if atheism is false, Christianity isn’t necessarily true”

      I think you’re confusing someone else’s posts with mine – I said nothing regarding this issue at all.

      “SSM and natural marriage are different BEHAVIORS with different outcomes”

      This is irrelevant to whether or not your argument defeats itself.

      “With regard to “crimes against nature” I don’t think I need to get explicit with you about male homosexual contact”

      Likewise irrelevant to my above point.

      “by what objective moral standard are you as an atheist (or agnostic) declaring my position immoral and yours moral?”

      I didn’t say your position was immoral. I said it defeated itself by its own logic. You’ve yet to address this.

      “Unfortunately, I don’t have the time to cover all the issues again on this blog”

      Then it’s a shame you wasted your time addressing points I didn’t bring up, Frank, rather than the single point I actually did make.

      Reply
    • Martin says:

      SSM and so-called “natural” marriage are not different BEHAVIORS. Heterosexual couples and homosexual couples engage in exactly the same behavior when they marry. That is, they get married. Getting married is the behavior.

      When a gay person parks their car, they are not gay-parking their car any more than a straight person is straight-parking their car. Both people, gay and straight, are engaged in the same behavior…. parking a car.

      Saying that same-sex couples cannot get married is not discriminating against a behavior, it’s discriminating against a particular segment of society by telling them that they cannot do something allowed of others.

      Reply
      • Terry L says:

        Martin, using that logic, one can make the same argument to support the legalization of plural marriage, incestuous marriage, or any other combination. Some adults would like to marry children (Mohammed evidently thought this was OK). Would you discriminate against that “particular segment of society by telling them that they cannot do something allowed of others”?

        Reply
        • Stephen B says:

          “The question is not equal protection”

          Yes it is.

          And yes, we don’t let adults marry kids because kids aren’t old enough to consent. Other adults ARE able to consent. What we do not do is pretend paedophiles aren’t descriminated against – they are, for good reasons.

          Reply
  12. Luke says:

    Dr. Turek wrote:“Moreover, the point stands that Dred Scott was overturned by votes of legislatures not judges.”

    Where have I contested that point, good sir? I’ll write a more through reply later, but I just want to say that the point I was asking about was your headline, which said that the constitution does not protect African Americans. In the article, you wrote of the 14th amendment, so a more specific headline may have been that the 14th amendment does not protect African Americans.

    The 14th amendment in fact overturned Dred Scott. It also served as the basis for Brown and the end of many other discriminatory laws and practices. It has in fact, provided great protections for a great number of African Americans.

    You now seem to admit that, but make a totally different point that those protections — which you at first denied existed — were passed by a majority of the people’s representatives. I never said a word about how the 14th amendment was passed! How it was passed has nothing — nothing to do with your headline. Your headline is what I asked about.

    Your headline was and is wrong and incorrect. Instead of admitting that, you now claim it’s okay because the amendment you speak of was passed by the people’s representatives (historians would tell you about the Reconstruction Acts and tell you the story is not that simple, but that’s another matter.) If that’s been your point all along, why not change the headline?

    Thanks,

    Luke

    Reply
    • Stephen B says:

      “If that’s been your point all along, why not change the headline?”

      I think it’s because he’s too busy, Luke. Defeating points people haven’t made takes a lot of time, and doesn’t leave enough to address their actual points (though obviously it’s an easier job to argue against straw man arguments).

      Reply
  13. Luke says:

    Frank Turek said: “There was no rational case to preclude people from voting because of their race or sex.”

    Does it strike anyone else as funny what a giant, flaming, liberal Dr. Turek would have been had he been born 100, 200, or 1,000 years ago?

    Reply
  14. Frank Turek says:

    Luke, I agree with your point that the Constitution gives blacks and women the right to vote, but not the 14th Amendment. But I made that point in the article. Moreover, a headline can’t unpack all the arguments made in the article. Spelling out the Fourteenth Amendment to the Constitution would be too long for a headline (and mine was already too long). And if believing in Gal. 3:28 makes one a liberal, then so be it.

    Stephen, I’m not avoiding your point. but you appear to be avoiding mine. That’s fine.

    But let me address your charge that my position is self-refuting. How so? If I understand your point correctly (and I’m not sure I do), our disagreement might lie in the fact that you think “sexual orientation”– whatever that means– is an identity that confers rights upon someone. Is that what you are saying?

    I don’t agree with that because it proves too much. It would mean that people with a sexual orientation to children, relatives or multiple partners have a right to engage in those behaviors and that the government must promote those behaviors. Is that what you are saying?

    I think our marriage laws treat all people equally– every human being has the same right to marry a person of the opposite sex. How is that unfair or unequal?

    Reply
    • Stephen B says:

      “our disagreement might lie in the fact that you think “sexual orientation”– whatever that means– is an identity that confers rights upon someone. Is that what you are saying?”

      No.

      “I think our marriage laws treat all people equally– every human being has the same right to marry a person of the opposite sex. How is that unfair or unequal?”

      I didn’t say it was unfair or unequal.

      I said that by that logic, laws that allow same sex marriage can’t be described as ‘favoring gays’ or ‘protecting gays’, as they would give YOU the same right to marry another man as they would give gay men.

      I’ll try to make it simpler for you. Would you say that a law allowing gay marriage gives you the right to marry another man? I don’t see how you can’t answer yes, because it would. Therefore, given you and a gay man both get exactly the same right from the law, you can’t say that it favors him more than it favors you.

      This says nothing about whether such a law is good or bad; it says nothing about what behaviors are being promoted by such a law; it says nothing about whether Founding Fathers would approve of such a law; it has nothing to do with whether ‘sexual orientation’ confers rights. You don’t need to refer to any of that to address/understand my point.

      Either the law would give you and a gay man the same right to marry another man, or it wouldn’t.

      And clearly it would.

      Therefore it’s not a special right for gays, and it’s not special protection for gays.

      Reply
    • Stephen B says:

      “Stephen, I’m not avoiding your point. but you appear to be avoiding mine. That’s fine.”

      Apologies Frank, but you wrote your article and I wrote several replies all addressing a very specific point in that article.

      Your replies have raised several other topics (under the banner of homosexuality and marriage) unrelated to the point that I made. While natural law, the truth or otherwise of Christianity, basing ideas under atheism/Christianity, gays and STDs, etc are all interesting topics, none relate to the single point I was making. And as you point out yourself, they’re all huge topics. You say you don’t have time to go over them, so can’t complain that I don’t address them either, particularly as they don’t relate at all to my point.

      Reply
  15. Luke says:

    Dr. Turek wrote:“Luke, I agree with your point that the Constitution gives blacks and women the right to vote, but not the 14th Amendment. ”

    Where have I made this point, sir?

    You said in your headline that the constitution does not protect African Americans. You spoke of the 14th amendment at length in your article. I pointed out, with examples, that the 14th amendment has in fact provided much protection to African Americans (one example I gave was the Brown decision, but I gave others). This means what you wrote is wrong and factually incorrect.

    You haven’t even tried to debunk my points; you’ve pretty much accepted I was right. What you haven’t said is “my headline gets it wrong”; “my article is based on a false premise”. Instead here you are trying to pretend (it seems) that I’ve talked about voting rights. I have not even typed that word, outside of quoting you. How could I be right about something I didn’t even mention? With whom are you arguing, sir?

    Luke

    Reply
    • Stephen B says:

      Yes, I was equally baffled when Frank said: “However, you’re absolutely right that if atheism is false, Christianity isn’t necessarily true”, when I’d said no such thing.

      This discussion has taken a surreal turn!

      Reply
  16. Frank Turek says:

    Stephen, You wrote this: “Therefore it’s not a special right for gays, and it’s not special protection for gays.”

    You and I couldn’t agree more! I AM NOT saying gays are protected– the COURT IS SAYING THAT. That’s one reason why I think their reasoning is fallacious. For all the controversy about headlines, notice that the headline and article are saying that the court decisions are saying this, not me. So my position is not self-refuting because that’s not my position. It’s the courts’.

    Luke, With regard to your point, see above my response to Stephen. The constitution was amended properly to protect blacks and women. The courts don’t have the authority to do that before the people do through the amendment process. Brown came after the amendments not before. And one could argue that Brown was a good result through a bad process.

    Hope you have a good day Gentlemen.

    Reply
    • Stephen B says:

      “I AM NOT saying the court’s interpretation is protecting gays”

      You say exactly that in the headline of the article.

      Reply
      • Stephen B says:

        Feel free to ignore the above line and concentrate on Luke’s instead – I posted in a hurry. He pretty much says it all, and is on the money in me seeing Frank say plenty of times previously that SSM is a special right for gays.

        Frank, if you’ve changed your position on this, please say.

        Reply
  17. Luke says:

    Dr. Turek,

    First of all, I just want to say that I really appreciate this space and your willingness to engage here. It is both instructive, and honestly, enjoyable. So thanks! Truly.

    Now, onward:

    I.

    Stephen wrote:“Therefore it’s not a special right for gays, and it’s not special protection for gays.”

    Dr. Turek replied:“You and I couldn’t agree more!”

    Let’s be frank. You, Stephen, and I all know that a simple google search will yield various statements in which you clearly say say that gays want “special rights” and of the court giving “special rights”. We can also find you writing of “special rights” for gays (through gay marriage) through the very link you just gave us above.

    Do you now think you were wrong to say that?

    That’s totally fine. I think you were wrong too, to be honest. However, I could not find anything from you saying that this was wrong or any sort of retraction. Can you point me to something like that? If it’s not out there, how was Stephen to know you had changed your mind? (If he missed it, which is entirely possible, it may been easier to say “oh, I used to make that argument, but I’ve changed my mind since: see –link –“, but maybe you didn’t make the link between his words and things you’ve said in this past.)

    II.

    Frank Turek said: “notice that the headline and article are saying that the court decisions are saying this, not me.”

    The headline is:“Same Sex Marriage Decisions: The Constitution Protects Gays But Not Blacks or Women”

    I see!

    Can you please provide a quote or page numbers from at least two decisions related to mariage equality (the headline said: decisions) which say that the constitution does not protect blacks or womnen.

    (Like you siad, it’s the court decisions saying that, not you.)

    Thanks,

    Luke

    Reply
    • Frank Turek says:

      When I said “special”, Luke, It’s made in the context of beyond what people already have. As you know, I don’t think gay or straight are legal categories (and Stephen, I think, agrees). But it is difficult in conversation to always substitute “people who have a desire for and engage in homosexual acts” for “gay.” As Stephen rightly points out, any change in marriage laws would effect everyone. Which means, regardless of whether our marriage laws define it a between opposite sexes or also between same sexes, everyone will always have equal rights because everyone can choose to get married in a manner afforded by the law.

      Reply
  18. Luke says:

    The last sentence there was not a trick question, I just don’t know how to use question marks, and can’t spell womnen properly.

    Reply
    • Frank Turek says:

      When I said decisions, I meant the slew of recent decisions that have overturned the will of the people in about 20 states (NC was just one of them).

      Reply
  19. DagoodS says:

    Frank Turek,

    North Carolina has determined by majority homosexual acts are felonies. (Gen. Stat. 14-177). Of course, the law was deemed unenforceable as being unconstitutional by Lawrence v Texas.

    Using the same reasoning as the blog entry, are you claiming homosexual acts should be a crime—a felony—in North Carolina? And should there be and Andrew Jackson type governor who states, “Lawrence will not change the laws in this State—if you have homosexual sex in North Carolina, we will prosecute!”

    Reply
    • Frank Turek says:

      If that was the law on the books, then it should be enforced. If we don’t want it enforced, then change the law properly through the legislature.

      Reply
  20. Luke says:

    Dr. Turek,

    Today, on 22 Oct, 2014, you said:

    “When I said “special”, Luke, It’s made in the context of beyond what people already have.”

    I’ll go to the first result google gave me, a townhall column from November 2008. In that piece, you used the word “special” 5 times in the space of two paragraphs.

    You wrote::”If desires alone guarantee someone special rights, why no special rights for pedophiles and gay bashers?”

    If you believe(d) the rights apply equally to everyone, then why write the rights are guaranteed for “someone” — an odd word to use when you actually mean everyone. How could rights that apply equally to everyone be labelled as being “for” someone?

    Also, you missed my other question, so I’ll repost (with correct spelling):

    Frank Turek said: “notice that the headline and article are saying that the court decisions are saying this, not me.”

    The headline is:“Same Sex Marriage Decisions: The Constitution Protects Gays But Not Blacks or Women”

    I see!

    Can you please provide a quote or page numbers from at least two decisions related to marriage equality (the headline said: decisions) which say that the constitution does not protect blacks or women?

    (Like you said, it’s the court decisions saying that, not you.)

    Thanks so much again,

    Luke

    Reply
    • Frank Turek says:

      Luke, I am pointing out the absurdity of the court’s logic. They are saying the 14th Amendment gives a lesbian the right to marry another woman while, at the time, it didn’t even give a woman the right to vote. Do you see the absurdity?

      Reply
      • Luke says:

        Dr. Turek,

        A few hours ago you said: “notice that the headline and article are saying that the court decisions are saying this, not me.”

        I asked for a reference for where the court decisions said the things mentioned in the headline.

        You replied: I am pointing out the absurdity of the court’s logic.”

        (emphasis mine)

        Which is it?

        You’ve been very gracious in engaging with me and I appreciate it. I will answer your question, about me seeing the absurdity, but will have to do so tomorrow. I do not want to leave the impression of ignoring you.

        Thanks again,

        Luke

        Reply
        • Frank Turek says:

          The court doesn’t say directly that the 14th Amendment protects gays but not blacks or women. I am showing that their logic to grant SSM via the 14th Amendment is absurd– how can they say it grants SSM but not women and blacks the right to vote?

          Reply
          • Luke says:

            Dr. Turek,

            I’ll let this go and let the readers decide. I think your constant stream of “actually I meant…” (paraphrase) is telling enough, so I won’t keep pressing the point.

            Now, you’ve asked a question and I definitely owe you a good and decent answer. Like I said, I will do this tomorrow. Before I start though, do you mind telling me your level of familiarity with the history of the first section and second section of the 14th amendment vis-a-vis women’s suffrage? I’m not asking for anything specific, just something along the lines of:

            a. I didn’t even know that was on anyone’s radar at the time.
            b. I know that the vote of women was part of the debate and somehow influenced the wording of the amendment, but I don’t know the nuances or in what particular way.
            c. I actually did my dissertation on this, which is why I find the court’s ruling so absurd.

            Thanks,

            Luke

      • Stephen B says:

        “They are saying the 14th Amendment gives a lesbian the right to marry another woman”

        They’re saying ALL women have the right to marry another woman – gay or straight. Why are you singling out lesbian women here? Don’t say the Courts are singling them out – you are the one interpreting the law to be singling them out.

        If you say that lesbians have the same right to marry men as straight women, you must be consistent and accept that that SSM laws allow straight women to marry other women.

        Reply
        • Frank Turek says:

          The court singles them out Stephen because the court has bought into the erroneous notion that lesbians don’t have equal rights. So I agree with your point but the court doesn’t. Thanks for your insights.

          Reply
          • Stephen B says:

            “The court singles them out”

            But Frank, you already said that you don’t believe SSM marriage singles out gays or lesbians, as it doesn’t give them any more rights than it gives you!

            “the court has bought into the erroneous notion that lesbians don’t have equal rights”

            I didn’t ask you what the court believes, I asked you how it singled them out. Under you own logic the court hasn’t singled out lesbians or gays.

            Like Luke said, I’ll let this go now and let other readers decide. But as Luke also pointed out, you’ve said plenty of times in the past that you believe SSM is a special right for gays, and this is in direct conflict with claiming traditional marriage doesn’t exclude gays, for reasons I’ve now pointed out several times.

            Thanks for your own replies. It’s been enlightening.

  21. DagoodS says:

    Frank Turek,

    The law IS on the books—as in the present. Not the past. If you are concerned about activist judges overturning anti-same-sex-marriage laws, to be consistent, I would think you should be equally concerned about activist judges overturning anti-same-sex-sex laws.

    If not more so. You do believe homosexual sex is immoral, correct? And should be outlawed? Further, this would render the whole same-gender-marriage question moot, as even if they could get married, any sex they have would be a felony.

    Why not more blog entries about how homosexual sex should be determined illegal? And governors (and attorney generals and police officers and prosecutors) should tell the Supreme court if it wants to enforce Lawrence v Texas…well…good luck!

    Also, staying consistent, in 1967 North Carolina had a law prohibiting inter-racial marriage. Again, an “activist” court with Loving v Virginia declared the statute unenforceable as unconstitutional. Likewise, are you claiming there should have been an Andrew Jackson Governor who said, “We will not change the laws of this state, based upon a court ruling—Blacks and Whites cannot marry as a majority in this state have determined they cannot”?

    Reply
    • Frank Turek says:

      Not everything immoral should necessarily be outlawed. We don’t want a nanny state. But I think, like Scalia and other justices, that Lawrence was decided improperly. Just 17 years before in Hardwick vs. Bowers, the court upheld the constitutionality of sodomy laws (again, I don’t think the court should be determining constitutionality anyway, and if they do there should be a legislative/executive override).

      However, there is a big difference between permitting a behavior (Lawrence) and promoting a behavior (recent SSM decisions). Promoting behaviors is a far more serious matter than merely permitting them. Just ask the people who are having their religious freedoms violated by SSM laws. So there is no inconsistency here.

      Reply
  22. Luke says:

    Dr. Turek,

    One more quick question so I can give you a proper reply. A quick yes/no will do (though you are free to elaborate if you wish; I’m not trying to force you into oversimplyfying).

    If I understand you correctly, you don’t think gays constitute a suspect class because it’s it’s a behavior that is being discriminated against. Do you think religion constitutes a suspect class? I think all the things you mention about gays, would be true for Catholics, for example. (A desire to love G-d. A desire to please Him. The behavior of taking communion. The behavior of confession. And on and on.)

    I’ll work on a reply soon.

    Thanks,

    Luke

    Reply
    • Frank Turek says:

      Of course. But religion is a behavior explicitly protected by the First Amendment. There is no constitution right to homosexual sex or SSM, contrary to the illogical activist rulings of courts.

      Reply
      • Luke says:

        So just to quickly follow up (I’m a bit confused, since a suspect classification is something that happens under the Equal Protection clause, not the 1st amendment): how does, as an example, not hiring a Catholic, not renting my house to a Catholic, not allowing a Catholic in my restaurant prevent that person’s free exercise of religion?

        If I don’t want to serve a Catholic in my restaurant how my action related to the 2nd amendment which says “Congress shall make no law”, being that I am not congress?

        (I’m just having a really hard time figuring out what you think a suspect class is, or should be, and what that means in American Jurisprudence. I’m just trying to understand how you think, so I can respond to you, not a made-up person.)

        Thanks,

        Luke

        Reply
        • Frank Turek says:

          I believe in a free America you ought to be able to serve or deny business to anyone, especially when you disagree with their behavior. Skin color has no effect on behavior, so I see no rational grounds to deny service there. But if someone wants to do that, the community will boycott them and they won’t be able to do business anyway.

          Now we are getting a bit far away from the topic of SSM, Luke. So this would be better discussed on another post.

          Reply
          • Luke says:

            I’m asking so I can focus my reply regarding SSM and the women’s vote on your thinking, not a straw man. Sorry if it seems off topic. The question is: what does the equal protection clause protect? Someone who thinks I can hang a “No Irish” or “No Christians” sign on my business (and enforce it) is far less likely to see very much there. (And this is a deeply minority view, so without this question, I would have assumed you were in the mainstream. Your view seems so marginalized, I cannot even find a modern poll about it — though I assume any such poll would suffer from strong Bradley effects.)

            I’ll start working on a reply shortly.

            Thanks,

            Luke

          • Stephen B says:

            “Skin color has no effect on behavior, so I see no rational grounds to deny service there.”

            Couldn’t someone quote greater prison population of blacks just as you quote disease among gays?

        • Frank Turek says:

          It’s not. It’s a state issue. Always has been. That’s another reason why federal government interference is illegitimate. The only way to legitimately get the feds involved is to use the amendment process to pass a constitutional amendment.

          Reply
  23. DagoodS says:

    First—thank you, Frank Turek. We appreciate your continued interaction in these comments; it is truly refreshing.

    Second, although a small sidetrack, I think it important to explain why this “prohibited behavior vs. promoted behavior” is a non-starter for an argument. It is an illusory categorization attempting to differentiate when no such difference exists. A definition without a distinction. ALL laws could be described in terms of “probited behavior;” equally all laws can be described in terms of “promoted behavior.” Speed limits prohibit driving over a certain mph; speed limits promote driving under or at a certain mph. Zoning laws prohibit building a commercial building in a residential district; zoning laws promote building a non-commercial building in a residential district.

    Declaring a law unconstitutional simply means the behavior is no longer prohibited. One can now marry a person of a different race without it being a crime. One can now engage in homosexual acts without it being a crime. And one can now marry a person of the same gender without it being disallowed. The state is not promoting interracial marriage any more than it is promoting sodomy any more than it is promoting same-gender marriage. It is simply declaring what one can or cannot do.

    I would recommend you do not use this argument of “prohibited vs promoted,” as one can easily dismantle it.

    On to the more important topic at hand. If I understand you correctly (and please correct me if I am wrong) you object to the entire process of courts determining constitutionality of the laws. You don’t think courts should EVER determine whether a law is constitutional, regardless of the reason, or whether the law is for prohibited or promoted behavior.

    I derive this understanding from your distaste toward Marbury v Madison, and your statements throughout this blog entry and comments such as:

    “The truth is, nowhere does the Constitution say that the courts are the final word on what laws mean or what laws are valid. “
    “Now, you may get a good result from a bad process, as in Loving or Brown.”
    “…(again, I don’t think the court should be determining constitutionality anyway,…”

    You think Griswold was wrongly decided—states can ban contraceptives. Loving=wrong: States can ban interracial marriage. Lawrence=wrong: States can criminalize homosexual acts. In fact, there are numerous decisions you believe the court should never have stepped in. If States allow employers to discriminate against women…so be it. Until the legislation changes, the court should keep quiet about it. Don’t have to give Miranda Rights. Police can conduct warrantless searches. The list goes on and on.

    This raises two significant questions. What process DO you propose we use to determine if a law is constitutional? If some state, by majority, passed a law whereby married women cannot vote—what are you proposing we do to determine whether such a law is constitutional if we cannot utilize the courts?

    Are you saying majority rules, regardless?

    The second question would be…then…why the complaint over bakers, florists and photographers as cited in the blog entry? A majority determined one cannot discriminate against homosexuals when operating a public company. These bakers, florists and photographers did. The Majority—the process you desire—determined it to be in error.

    If you do not believe the courts are the appropriate process to determine constitutionality, including Freedom of Religion, why the complaint when the majority happens to decide against you?

    Reply
    • Frank Turek says:

      Hi DagoodS ,

      Here is a more detailed description of the prohibit, permit, promote line of reasoning: http://townhall.com/columnists/frankturek/2013/03/01/the-case-against-equality-part-2-n1523048

      Yes, our constitution has strong state governments and a weak federal government (The states came first–that’s why we’re called the “United States.” The States had to approve the Constitution, and the feds were formed by the states, not the other way around). The states are supposed to be incubators of democracy. Otherwise, why have state governments at all. If you want to have contraception, abortion, inter-racial marriage, same sex marriage, polygamy, man- beast marriage, then convince your fellow citizens and VOTE ON IT. Don’t have an unelected judiciary tell you what to do. Now, I may personally disagree with certain things in my state. I thus have the freedom to vote with my feet if I can’t get my fellow state citizens to vote with me.

      As I mentioned earlier, the majority can sometimes be wrong as well as the court. See my comments above about natural law and Judge Bork’s proposal to overturn bad judicial decisions.

      Sorry guys. I’ve spent enough time on this thread. Got to get back to my deadlines. Hopefully we can interact more another time. Appreciate the respectful dialogue.

      Reply
      • Stephen B says:

        Frank, have you heard the quote about democracy being four wolves and a chicken voting on what’s for dinner?

        The whole point of the US set up is it assumes some rights aren’t up for vote. Jews don’t have to worry that someone’s going to convince a majority of Gentiles that it’s time to stick the Jews in camps.

        This is a pretty fundamental principle you’re dismissing!

        It’s easy for you to propose throwing out laws protecting minoritiesbecause you’re never likely to suffer from such an idea. Because you have so little need of protection you see no value in it.

        Reply
  24. Frank Turek says:

    Stephen, Yes, it’s a special right in the sense that it doesn’t exist– it’s a new “right” in world history to “marry” someone of the same sex. As I’ve said in several radio interviews, I don’t have the right to marry another man either. As you know, I don’t believe in the legal categories known as gay or straight. There are just human beings and all human beings have the same rights regardless of whether SSM is available or not. That’s why no one can claim they don’t have equal rights.

    Thanks for your comments as well.

    Blessings,

    Frank

    Reply
  25. Stephen B says:

    Sure, it’s ‘specisl’ in the sense if being new, but crucially it’s not a ‘special right for gays’, it’s not ‘special treatment for gays’, right? This is your new position – am I right?

    Reply
    • Frank Turek says:

      It’s not a new position. It’s a new “right” that only people who have a homosexual orientation will exercise. That’s why I’ve referred to it as a special right for gays.

      Reply
      • Stephen B says:

        Wait, wait Frank – you’re having it both ways!

        Either you allow that straight marriage and SSM are both available to everyone, or you allow one is for one orientation and the other is for the other orientation.

        You can’t argue both that everyone has the same right to a straight marriage, AND that SSM is only for gays.

        So, it’s special only in the sense that’s it’s new. When does it stop being new? Is interracial marriage still ‘special’ in Virginia, 47 years after becoming legal?

        Was THAT law ‘absurd’ too, given that prior to it, everyone had the same right to marry their own race?

        Reply
        • Frank Turek says:

          Stephen, orientation should be irrelevant to the law. That’s my point. If you are a human, you have the same rights as everyone else whether SSM is promoted or not. If we approve SSM, then it is a new and special right that have never existed in human history. The only people who will engage in that are people who identify themselves as gay.

          The overall point here is that the claims that the courts and homosexual activists are making to say that some people are being denied equal protection is bogus. Enough said.

          Reply
          • Stephen B says:

            You don’t answer my question. How long does it stay new and special for? It’s already existed in some countries for quite a few years.

            “Stephen, orientation should be irrelevant to the law.”

            When Virginia Vs Loving was being debated, would it have been an argument against interracial marriage to say ‘race attraction should be irrelevant to the law’?

            Obviously not. So it’s not an argument against SSM to say ‘orientation should be irrelevant to the law’.

            ” The only people who will engage in that are people who identify themselves as gay.”

            No dice – if you want to argue that straight marriage offers everyone the same right then it follows that SSM does too. If you’re saying that ‘only gays will use SSM marriage’ then you have to accept that straight marriage excludes them.

            You can’t have it both ways. Enough said indeed.

  26. Frank Turek says:

    Stephen, skin color is not a behavior and does not cause you to commit crimes. But engaging in homosexual activity is a behavior and does impact one’s health.

    Reply
    • Stephen B says:

      Yet still someone can quote those figures, no? The figures aren’t wrong.

      And a gay couple can simply say they don’t engage in the type of sex associated with those diseases. It still comes down to generalising.

      Reply
  27. Luke says:

    Dr. Turek,

    One more question. I really do apologize; I really am just trying to get a clear picture of your views. I was writing a response and realized I got caught up on one point, because I was unclear how you felt.

    If my religion ordains gay marriage (it doesn’t say you have to get married, but something like ‘if you’re going to burn up in passions, you’re better off married and you should do it in that case), then you would think the government has no right to stop such a marriage from taking place, right?

    Honestly, I imagine no more questions trying to suss out your views.

    I will give you the beginning of the answer I wrote, then foolishy deleted to write this entry: “I guess my short answer would be ‘Yes, it strikes me as absurd, but I can also understand it’..”

    Thanks,

    Luke

    Reply
  28. Charles says:

    The constitution was written when those who contributed to it believed in natural rights and natural law. We don’t believe in either anymore. Basically, laws were written to encourage people to make more citizens to replace the old ones that die off, so society can flourish. The fact human gestation is roughly 10 months and rearing about 16-18 years, families were natural in formation of citizens. That’s all out the window now. In fact, even a Darwinian view of homosexuality would conclude it as a biologically useless activity. However, we are driven more by emotion and will than by truth and reason. There are no arguments for SSM that make any sense, unless you abandon natural law. And natural law is something even those whose job is to argue against it wholeheartedly accept, without question, when off duty.

    Reply
  29. DagoodS says:

    OK, let’s unpack this “prohibit vs permit vs promote” reasoning regarding the law. Yes, Frank Turek, I was aware of your previous articles making such claims. But if one links the article, it quickly becomes evident no further explanation is provided. What criteria are used to differentiate? Let me list a few laws as examples (all are Michigan laws.)

    1) Michigan law requires tenants to provide a forwarding address within four days of vacating the premise;

    2) Michigan law limits personal injury actions within three years of the occurrence (with few exceptions);

    3) Michigan law has abolished claims for alienation of affection (suing a person for stealing away your spouse.)

    Which of these laws are prohibit? Which are permit? Which are promote? Can you see how one could manufacture reasons to place any or all of these laws under prohibit? Or promote? Or Permit? Without a criteria or methodology to make a determination, your argument differentiating sodomy laws with same-gender laws is semantic illusion.

    Second, I notice you did not provide an alternative means to determine constitutionality of laws. And you failed to embrace (as would be consistent) the claim North Carolina SHOULD have the right to declare interracial marriage as illegal and North Carolina SHOULD have the right to declare homosexual sex a felony. In fact, to be consistent, if North Caroline declared homosexual sex to be punishable by death in a majority vote—you would be perfectly fine with it.

    Thirdly, you consistently suggest budding apologists “turn the claim upon itself” when addressing skeptics. Shall we do the same? What if a majority determined laws cannot violate the constitution, even if a later majority voted for it? Aren’t we still using your method (majority-rule) yet can still have laws determined to be unconstitutional?

    An analogy for clarification. Image a schoolroom where the class voted unanimously on the first day that all meals must be nutritional. The following day, the class votes…by majority…to have ice cream and cake and nothing else for lunch. The teacher (court) says no—the meal does not meet the nutrition qualifications. You seem to be indicating the teacher (court) is being an activist, when overruling the majority who voted for ice cream. Yet you propose no alternative.

    How do we give the constitution any teeth, if everything is majority rule?

    Reply
  30. Luke says:

    I wanted to write a quick reply to Dr. Turek’s question, but the truth is, this article is based on poor assumptions and invalid historical understanding processed through invalid logic, so it’s hard to respond to just one final point. I don’t fault Dr. Turek for these mistakes. I think he is writing and arguing in good faith. We all make mistakes. I’m sure I’ve made mistakes here and I’ll be glad if someone points them out to me.

    In order to provide a more through framework of the ways the article goes wrong, I tried to as briefly as I could comment on these faults. At the end, I answer the author’s question directly.

    I apologize for the length. I am poor at being concise. Still, I hope someone finds some useful information here, and I will welcome Dr. Turek as an ally in the fight for marriage equality once he has finished reading. 🙂 (Actually this is in no way an argument for marriage equality.) Anyway, here we go:

    1. The constitution and the 14th amendment has been used and continue to be used by courts to provide many protections to African Americans and women. This undercuts the entire premise of the headline and much of the article. To try to make bypass this fact, the author focuses on just one thing, voting — which has a separate and still fraught history in this country. By focusing on voting the author is cherry-picking anecdotes and deliberately ignoring many other aspects of equal protection — and that’s granting the author is correct about voting, which is problematic in itself.

    If the clause has been found to provide protection in cases of a, b, c, d, f, g, h, i, and j, but not in e, we should conclude that it’s something about e that is different. That makes e a not good example to build general ideas on. Yet this is exactly what the author does.

    To say that because protection wasn’t found for e, it should not be found for anything else is just poor reasoning. Yet the author uses the example of e to extrapolate the meaning of the clause for other things. #badlogic, as the kids would say.

    2. The author, in the article and comments tells us that:

    a. majorities can get things right
    b. majorities can get things wrong
    c. courts can get things right
    d. courts can get things wrong

    The author’s conclusion from this is that majority rule is the proper way to govern. However, he has offered no argument as to why this would be. He just asserts it. Why would a rule made by a majority getting it wrong be better than a court getting it right, for example?

    3. The history of voting in the US is a complicated matter. In short, the constitution doesn’t guarantee a right to vote, because the founders didn’t think everyone should vote. (This is why there are people who propose an amendment stating that citizens have a right to vote.) I mentioned this problem above, but let me see if I can give a very brief history of the 14th amendment and women’s suffrage. When the equal rights language was discussed, women’s rights activists were pretty stoked — it pretty much meant women could vote. Yay! In general, Radical Republicans were happy about this, but this was something that just couldn’t pass Congress. So section II was inserted in order to make it palatable to mainstream Republicans, who weren’t ready to accept women’s suffrage. Section II is famous as the only part of the constitution to discriminate explicitly on the basis of sex. This caused a separation between the black and women’s rights movements, which had worked together in many ways before (and would again in the future). The existence of section II, which specifically lists voting rights — in practice overriding section I as far as voting is concerned. This is the reason courts never granted a right to vote for women under the equal protection clause. If such a case were to come up today, I have no doubt the right to vote would be granted, despite section II. (Section II is intentionally ambiguous, because an outright denial of the women’s vote would have lost many Radical Republican votes. The amendment, like so many other parts of the constitution is a compromise. That’s why it’s kind of messy.

    But the answer to this puzzle is not: there is no right to vote for women in the equal protection clause because not a soul in the 19th century would have imagined the language to mean such a thing. That would simplt be incorrect.

    4. The author seems to be telling us that if “equal protection under the law” wasn’t intended to equal protection under voting law, then it musn’t (or even can’t) mean equal protection under marriage law, or speeding law, or car-insurance law, for example. If the writers of the amendment had meant all these other things, then surely they would have intended to include voting, the author argues. As mentioned above though, the history of voting rights is more complex than this. Right in the 14th amendment, voting is specifically mentioned — just to give the idea that voting is an exception to that line above. (This is what made it passable in Congress.) As I focus on in part 1, voting was more-or-less specifically excluded. That’s why the author was able to cherry-pick his example here.

    Let me offer an analogy, if I tell my granddaughter “you can have any candy bar you want, any time. Also, only your bother can have Bounty” she may reasonably conclude I didn’t really want her to have Bounty (even though I didn’t explicitly say that).

    At the same time if she reaches for a Twix, I look quite silly if I say “Wait, who said you could have Twix? You know you couldn’t have Bounty; what made you think you could have Twix?”

    Yet this is exactly the irrational and silly argument is exactly the argument the author is making.

    5. To expand on the previous point and bring it into the real world: It should be noted that the first use of the equal protection clause in a case about marriage was in 1872, just 4 years after the passage of the amendment. The idea that no one at the time would have thought this amendment had anything to do with marriage is simply factually incorrect. It also did not limit that application to former salves, as the author contends. Again, just 4 years after the amendment was passed, it was used to EXPAND marriage rights, and NOT ONLY for former slaves!

    This simple example alone invalidates much of the author’s argument.

    6. If the framers of the equal protection clause only intended it to mean one thing and one thing only, as the author would like us to believe, it’s quite odd that they used such broad and ambiguous language. (The author wrote “The 14th Amendment of the U.S. Constitution was passed in 1868 to prevent states from discriminating against newly freed slaves.”) If that’s so, why didn’t they just say that? If they meant newly freed slaves, why did they write “any person”? Massive typo?

    Perhaps they actually had more than just that limited group in mind.

    7. The author seems to believe that judicial review by the supreme court is invalid.(“The court gave itself that right in Marbury vs. Madison (1803), which itself was a case of judicial activism. Hence, knowing it lacked constitutional authority, Andrew Jackson ignored the court about 30 years later.”)

    I think this could use some historical context.

    Judicial review was discussed during the constitutional convention (with few, but existent dissenting voices), in the federalist papers, and in state legislatures that ratified the constitution (again with few, but existent dissenting voices). In fact, the idea of judicial review was a concept used by those who opposed ratification as an argument against the constitution. It is simply wrong to act as if this was a concept the high court invented in the 19th century and was not something the founding fathers ever imagined or wanted. (Earlier court rulings also rule on the constitutionality of laws, it just happens that in those cases, the court found the laws constitutional.)

    7. The author’s position against judicial review seems to make the constitution itself irrelevant. If there is no organ within the polity to judge whether something is inconstant with the constitution, then the constitution has no practical value. Let me give an example. The constitution guarantees a right to free speech. Yet, with no judicial review, the congress could pass a law stating “anyone criticizing Barack Obama or gay marriage shall be jailed for a period of no less than 5 years”. There would be no one to say or enforce the view that such a law is unconsitutionaltherefore allowing the congress and majority to do anything they desire, even when the constitution explicitly forbids it — rendering the constitutional provision for free speech, and the constitution itself as nothing more than a scrap of paper.

    8. The unelected judges of the supreme court are not the final say. The author says several times that there should be a majoritarian remedy to overrule the court. For example he says “I don’t think the court should be determining constitutionality anyway, and if they do there should be a legislative/executive override)” Such a thing exists, of course! It takes a supermajority in congress, then a simple majority in a supermajority of states. One can complain this standard is too high, but to pretend it doesn’t exist does little for one’s credibility. If the author believes that this is not the will of the people allow gay marriage, the constitution provides a remedy to the people and their representatives. The author is free to agitate for such a change. For example, many disagree with the Citizens United decision. This year in the senate an amendment which would invalidate that decision was put forth and debated in the senate. While it failed, it clearly shows that the remedies the author pines for actually exist. In fact, the next president of the United States, Ted Cruise, has vowed to propose such an amendment when congress reconvenes. The very thing the author wants is already there.

    9. The author focuses on behavior. I’m not really sure what he means by this. I’d like to ask for some clarification. What is the behavior? It seems to me that “getting a marriage license”, “going down to the court or church”, “saying ‘I do'” are the same in all cases. What behavior is the author talking about? Is it behavior within the marriage? Some straight couples like to watch tv together, others don’t. Same for gay couples. Some straight couples like to travel, others like to stay home. Same for gay couples. Some straight couples want and have 6 kids together, others 2, others want none at all Same for gay couples. What is the behavior that is being prevented by disallowing two women to marry?

    If we read the diary of a spouse, but any gender identifying words were obscured (i.e. “my partner” instead of “my wife”) I really don’t think we could tell the difference between a gay couple and a straight one. Maybe I’m wrong about this. I’m open to counterargument here. I’ve thought about it quite a bit as a thought experiment, looking over my own many years of marriage from dating, to the ceremony, to buying a house, to children, to anything else I can think of. I haven’t thought of a single behavior I could describe that would give us away.

    10. To further expand on the behavior point, whatever the behavior may be, shouldn’t that be the target. If the government doesn’t want people hiking (a behavior), it makes no sense to not let hikers (a certain type of person) get married. This would be so blatantly stupid, yet it is what the author seems to promote.

    And I still have no idea what behavior he is even talking about. (I’m totally open to critiques of my diary thought experiment.)

    11. The author similarly says that we all already have equal rights — the right to marry someone of the opposite sex. This has already been addressed with counterexamples twice — questions which the author did not answer. John Moore proposed the right of everyone to vote for members of the Democratic party. I proposed the idea of everyone being able to marry someone named Bob. Would the author be happy under such a regime? Would such a regime be fair? If not, the author concedes that equal rights are only part of what is necessary.

    The point at issue here is how the right is defined. It’s how we ask the question.

    If the question is: “does everyone have the right to marry someone of the opposite sex?” The answer is yes. If the question is “does everyone have the right to marry the person they love?” The answer is no. (Love is not the only reason people get married, but it’s the one that grabs most of us, and the one most of us understand as a basic part of what it is to be human. For that reason, it’s a reason worthy of focusing on.) We can probably come up with a question that gives us an answer of “equality” for just about any unfair and discriminatory practice (Brown would be exhibit 1). The problem is, that’s almost never the right question. The author needs to put forth a reason, some reason, why his question is the correct one. Without that, there’s not really a serious argument, just a silly game.

    I ask Dr. Turek simply: Which right is important to you:

    a. the right to marry a girl.
    or
    b. the right to marry the girl you love.

    I imagine if you’re honest with yourself, you’ll know it’s b you’re after. Guess what? You’re not the only one.

    11. Sometime we get the principles right, but are still to flawed to apply them correctly. The best example of this is “all men are created equal”. Mr. Jefferson did not actually mean what we read there, and what we think about when we hear that phrase. To many people at the time, including Mr. Jefferson, it meant “all white men”. We can treat this in two ways. We can appeal to the great principle, set lofty goals, and unite under that banner. All men are created equal. Or we can say, as the author seems to encourage us to do, Mr. Jefferson and most of those names signed underneath meant “white men are created equal”, so that’s all it can ever mean. Set your sights low friends!

    When our ideals outpace our abilities, should we discard the ideals, or limit them? Or should the ideal be the goal, even if the men who wrote it didn’t understand how profound it was?

    Do we want to treat all men as having been created equal, or should we treat them the way the author of those words did? The answer seems obvious.

    12. The author also skips over some badly needed context. The government can discriminate, if there is a good rational government interest to do so. (Some 30% of laws survive “strict scrutiny” the highest standard of review applied to such equal protection and due process cases.) The problem is that even though the author says “there certainly is a rational case to preclude changing marriage.” most courts have simply found this not to be the case. If the author was right about this, or at least had a good enough argument to convince a court, these laws could stand, even if the court deemed them ‘unequal’.

    13. The author asked me if I thought it was absurd that the 14th amendment’s equal protection clause was found to protect the rights of everyone to marry the person they love, while not protecting the right of women to vote. I guess my short answer would be “yes, it strikes me as absurd, but I can also understand it”.. Now that requires some unpacking and some context.

    As I mentioned in part 3, the amendment was written in part as a compromise, so that it would not be seen as giving women the right to vote. This is what I mean by “I understand it.”

    That said, the amendment doesn’t explicitly prohibit the women’s vote. Therefore if all laws are to apply equally to all, women should have the vote — that’s obvious. On that level, it’s crazy that no court had yet ruled that way before 1920. This is what I meant by “it strikes me as absurd.” Had that amendment not been passed, I think every court in the land would see that the 14th amendment plainly protects the right of women to vote.

    I hope that answers the question.

    Thanks for the commentary Dr. Turek. I’m open to hearing any critiques of or responses to this review. Sorry again for the length.

    Luke

    Reply
  31. Stephen B says:

    “To say that people with homosexual desires do not have equal rights would be like saying people with desires to marry their relatives or more than one person don’t have equal rights”

    But people who want incestuous marriages DON’T have equal rights. We don’t pretend that that they do have equal rights, we say that they don’t, and for good reasons. It’s not ‘absurd’ to claim this, it’s simply true. It’s a simple statement of fact.

    “Every person has the same equal right to marry someone of the opposite sex. That law treats all people equally”
    This ignores the simple legal precedent of ‘constructive discrimination’.
    “Muslims are not not discriminated against because all male workers equally have to be clean shaven”
    “Christians are not discriminated against because no-one is allowed to wear a small cross”
    “Vegetarians are not discriminated against because everyone is given the same meat dishes”.

    All of the above would have problems standing up in court. I’m not saying all would lose necessarily, but each would have to make their own case. One can’t simply say it’s ‘absurd’ on principle that equal rights aren’t being provided.

    Reply
  32. johnSaintnotChristianPagantrueBeleiver says:

    Very well written article with equally good replies on both sides of this fence. I am more then sure that I will not fail to disappoint with my reply. Forefathers would truly be shocked that this debate could even happen in a public forum.

    Where is the law that protects the rights of everyone? Intelligent people can’t work out a law that satisfies all. If not, higher education owes our politicians huge refunds.

    OK first I am going to recap. Homosexuals want their right to have a loving union legalized and recognized throughout the country. They also insist that everyone has to recognize this union even to the extent that if you work in the marriage industry you, by law, you will have to service this union even if you have a strongly held belief that what the people of alternate lifestyle wish them to do would be supporting and encouraging a sin. By what authority and or right could we use to tell those people that the right of one group to form a lasting union will now trump your right to follow your religion as you feel is right? Simply put, you can’t. Freedom of religion is as old as the constitution itself. You can not write that law. It can’t be done. Wrong is wrong even if everyone believes it and right is still right even if nobody believes it.

    Nope, doesn’t end there. 2nd I honestly do not think that this is a federal issue. These unions are the authority of the states, not the federal government. Once again what the homosexual community wants can not happen on a federal level.

    Still it does not end. This can still be accomplished on a state by state basis and if passed those laws have to be recognized and be reciprocal by all states, just like a driver’s license.

    Hijacking the word. At no time have I referred to this as a marriage. If the word marriage has it’s roots based in a Jewish Christian heritage. So why is OK to hijack this word to a meaning that it was never meant for? Do we change the meaning of a word just because people want to become more touchy feely? Its been said that the trouble with Christianity is Christians. Everyone wants to be in everyone else’s business. I judge you not. As for me and as it would apply to me, homosexuality would be a terrible sin. As for you that is what freedom of religion, or no religion is about. Do you think your sins could possibly be worse then mine, not likely. If I judge then I will be judged. You want to know something else? On that basis, you can cease judging me because we don’t agree. You have no moral right to call me hate monger, homophobe, or whatever. My job is to teach my kids and grand kids what sin is and to protect them to my fullest extent. If what I teach is not the way you want to live, get over it. Oh, I do have one more job. If that is your lifestyle and you ever feel that what you are doing is not quite right. I want you to know that my GOD is a loving God. Jesus died for any sin you will ever commit. His arms are open whenever you are ready.

    Reply

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