I really wanted to analyze, heh anal, this portion of Wolf v. Walker between whiskey sessions. Good thing I don't write this blog for other people, or I would be in trouble with this post. It's long, it's graphic-less, and it's legal. But I think it is really important to point out this is how the tax dollar of the Wisconsin citizens were wasted by BJ... I mean HJ... sorry I mean A2M... damn-it... I mean AG JB Van Hollen.
I couldn't quickly find the costs for Wisconsin; however, Pennsylvania wasted $588,000 defending its now extinct marriage ban. Good job you "fiscally conservative" assholes, instead of feeding the homeless or educating the children, you gave yourselves a $500,000 moral reach-around.
I digressed. Here is how Judge Crabb describes the States argumentation:
B. Positive Rights vs. Negative Rights
What is perhaps defendants’ oddest argument relies on a distinction between what defendants call “positive rights” and “negative rights.” In other words, the Constitution protects the rights of individuals to be free from government interference (“negative rights”),but it does not give them a right to receive government benefits (“positive rights”).Hey Dipshit, here is the Comity Clause: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." I learnt this in the 8th grade. And when Mr.Comity Clause met Mr. 14th Amendment, they got gay married. They continue to have interstate intercourse to this very day.
Defendants cite cases such as DeShaney v. Winnebago County Dept. of Social Services, 489U.S. 189, 195 (1989), for the proposition that the Constitution “confer[s] no affirmative right to governmental aid.” Thus, defendants say, although the due process clause may protect the right of individuals to engage in certain intimate conduct (a “negative right”), it“does not preclude a state from choosing not to give same-sex couples the positive right to enter the legal status of civil marriage under state law.” Dfts.’ Br., dkt. #102, at 8.
Defendants’ argument has two problems. First, the Supreme Court has held on numerous occasions that marriage is a fundamental right protected by the Constitution.E.g., Turner v. Safley, 482 U.S. 78, 95 (1987); Cleveland Board of Education v. LaFleur, 414U.S. 632, 639-640 (1974); Loving v. Virginia, 388 U.S. 1, 12 (1967). Thus, even if marriage is a “positive right” as defendants understand that term, marriage stands as an exception to the general rule.
Second, even if I assume that the state would be free to abolish the institution of marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather,it has limited the class of people who are entitled to marry. The question in this case is not whether the state is required to issue marriage licences as a general matter, but whether it may discriminate against same-sex couples in doing so. Even in cases in which an individual does not have a substantive right to a particular benefit or privilege, once the state extends that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any or no reason on the ground that a “positive right” is at issue. In fact, under the equal protection clause, “the right to equal treatment . . . is not co-extensive with any substantive rights to the benefits denied the party discriminated against.” Heckler v. Mathews, 465 U.S.728, 739, 646 (1984). Therefore, “[t]he State may not . . . selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.”DeShaney, 489 U.S. at 197 n.3.That's an incredibly good point. If the State wanted to deny marriage it would have to abolish marriage. In that respect, yes, the State doesn't have to give people the privileges of marriage. At the same time this is in no way germane to the argument, because of the government cannot discriminate.
Defendants fail to distinguish this case from the others in which the Supreme Court considered the constitutionality of laws that denied the right to marry to some class of citizens. Loving, 388 U.S. 1 (interracial marriage); Zablocki v. Redhail, 434 U.S. 374(1978) (marriage of parents who fail to make child support payments); Turner v. Safley, 482U.S. 78 (1987) (marriage of prisoners). Although defendants say that their argument is“consistent” with Loving, Zablocki and Turner because those cases did nothing more than“recognize a negative right,” Dfts.’ Br., dkt. #102, at 10, defendants do not explain why marriage is a “positive right” when the state discriminates on the basis of sexual orientation,but a “negative right” when it discriminates on the basis of race, custody or financial status.Defendants make a related argument that the government should not be required to“officially endorse the intimate and domestic relationships that gay and lesbian persons may choose to enter.” Dfts.’ Br., dkt. #102, at 9. They cite cases in which the Court held that there is no constitutional right to subsidies for having an abortion and that the government is entitled to have a preference for childbirth. Rust v. Sullivan, 500 U.S. 173, 201 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 509 (1989). Along the same lines, defendants argue that they are entitled to have a preference for marriage between opposite sex couples.
Even setting aside the many obvious factual differences between marriage and abortion, the analogy defendants attempt to draw is inapt for three reasons. First, as noted above, the state is already issuing marriage licenses to some citizens. The comparison to abortion would be on point only if, in the cases cited, the state had decided to fund abortions for heterosexual women but not for lesbians.
Second, abortion cannot be compared to marriage because the government does not have a monopoly on providing abortions. In other words, if the government refuses to use its resources to provide or fund abortions, a woman may seek an abortion somewhere else.In contrast, it is the state and only the state that can issue a marriage license. Thus,defendants’ “preference” for marriage between opposite-sex couples is not simply a denial of a subsidy, it is a denial of the right itself.Yeah they went there.We don't have to allow gay marriage because of abortion. Jesus Fuckballs! are you kidding me? This ranks highly on the stupidest shit I have ever read in an opinion. Obviously the opinion isn't stupid, it was the
This sounds like a politician's argument and pandering to the base, rather than a cogent legal argument.