Ted Olson explains why he supports gay marriage and has joined with David Boies to file suit to support it.
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
I agree with Olson on policy grounds — as I agree with my co-blogger Dale Carpenter’s “conservative” arguments for gay marriage — but I remain deeply skeptical of the constitutional argument. I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law. I also think gay marriage will achieve wider acceptance if it is advanced through democratic processes rather than through the courts. Litigation strategies are appealing, but they also risk a substantial backlash.
Oren_ says:
Seems to me that the backlash from litigation that, while pronounced in the short-term, melt away in about a year.
January 10, 2010, 1:41 pmChris Travers says:
My only concern is that the presence of Boies on the lawsuit suggests it is doomed. He seems to have an incredible knack for being on the losing side. (Napster, Bush v. Gore, The SCO Group’s endles suits, etc.)
January 10, 2010, 1:42 pmruuffles says:
Do you honestly think that if, in 20 or 25 years, gay marriage was available to 1/2 or 2/3 of Americans (counting individuals, not states), the current Court would actually rule in favor of it unanimously? In his article, Olson stresses that Loving and Brown were decided unanimously. I am highly doubtful that even if there were only one or two hold back states, that Scalia et al would vote in favor of gay marriage.
(Obviously if the country’s attitude evolves, the Court’s membership would likely do the same, though this was not the case with Brown.)
January 10, 2010, 1:57 pmOperationCounterstrike says:
The reason Republicans oppose gay marriage has nothing to do with conservative values. It’s because they can get money from rank-and-file Republicans, whose mentality is more or less the same as kindergardeners calling each other “fag” on the playground.
January 10, 2010, 2:01 pmTwirip says:
Yes. Even assuming that everything which Olsen says is true, it’s still a big leap to get from there to “.. and therefore the US Constitution should be interpreted to reflect those policy positions”. One of the hallmarks of the “rights” approach to the Constitution is supposed to be that it ought not be surreptitiously amended in the manner which Olsen is calling for. Olsen seems to be followng in Kimec’s footsteps.
I think his understanding of marriage is flawed in any case.
January 10, 2010, 2:04 pmJonathan H. Adler says:
ruufles —
My comment is about its acceptance among the public, not on the Court. I doubt Justice Scalia would ever vote to mandate gay marriage, but I doubt he’d ever vote that it’s somehow constitutionally prohibited either.
Thus far, we’ve seen the prospect of court-mandated gay marriage spur largely successful efforts to amend state constitutions. In places like Ohio, where I live, I think the end result has been a step backwards for gay marriage, and rights for homosexuals more broadly.
JHA
January 10, 2010, 2:05 pmTwirip says:
From some reason which I have not figured out, this sort of swill from the left never runs afoul of the commenting guidelines around here.
January 10, 2010, 2:06 pmtherut says:
Actually no. I just do not think Congress or any court has the power to redefine marriage. Marriage is not a institution created by any government or court. They can give all the rights they want but they have no right to change marriage. And they will not be able to do this really. They think by changing the meaning they have but not really. They just created something different and called it marriage. It is nothing more than state created legal enitity. Not marriage. Never will be.
January 10, 2010, 2:08 pmTwirip says:
Unfortunately I don’t believe that Olsen is this foolish, which leaves me but no choice but to conclude that he is dishonest. The intent of the left has always been to destroy this “vital social institution”. Rousseau was eloquent on that point. It’s been pretty badly damged already – see the number of marriages which end in divorce.
“Gay marriage” has nothing to do with gays. It’s a battering ram being used by the usual suspects with gays as a proxy.
January 10, 2010, 2:20 pmRandy says:
“I also think gay marriage will achieve wider acceptance if it is advanced through democratic processes rather than through the courts.”
Of course, if a majority of people vote in favor of SSM, then it has *already* achieved widespread acceptance. So Prof. Adler has the cart before the horse. And if rights are merely dependent upon the acceptance of majorities, then there is no need for constitutional protection of minorities’ rights. Heck, there is certainly no need for an equal protection clause, because any right that is denied to minorities can be righted in a few generations. Until then, I guess you are just out of luck, right?
Prof. Adler is also wrong about acceptance. Before the Mass. Supreme Court sanctioned SSM, few people supported the notion in that state. (In 1995, only 30%) Today, a clear majority, 56% support SSM, and about 70% civil unions, the highest percentage of *any* state. So no, wider acceptance follows after SSM is approved, regardless of whether it is through courts or legislatures.
Furthermore, shortly after Loving v. Virginia was decided, a nationwide poll showed that about 80% of all Americans opposed interracial marriage. According to Prof. Adler, then, interracial marriage should not have gained wider acceptance, and yet today, you would be hardpressed to find anyone who suggests that an interracial couple shouldn’t have the right to be married. And yet, oddly, in 2000, when Alabama years ago had a referendum to remove these laws from it’s books, a full 40% voted *against* removing the interracial marriage ban, even though Loving made it unenforceable.
Question: If the SCOTUS hadn’t stepped in to ban interracial marriage in Loving, how much longer would we have to have waited until Virginia and other states would have allowed it? Clearly, in places like Alabama and others, it’s likely that they would still have the laws on the books, 50 years later. Or at the least, it would have taken several decades for them to do it democratically, as Prof. Adler advises. So why bother with an equal protection clause at all, then, if we are all supposed to wait until a clear majority in every state comes around? Rights without remedies are no rights at all.
What to make of this? Prof. Adler is wrong — if SCOTUS were to allow SSM within the country, wider acceptance would follow. People would realize (as they have in numerous other states and countries), that the sky hasn’t fallen, and that all the dire predictions of opponents haven’t come true. There is a reason we have a Bill of Rights and an equal protection clause — so that minorities can be assured of their rights *especially* when the majority is against them.
January 10, 2010, 2:27 pmAndrew says:
My main problem with the Ted Olson quote in this blog post is that it does not address why the same goals cannot be achieved via civil unions. Also, as a matter of free speech, it seems to me that a majority of a state should get to call “marriage” whatever they want to call “marriage.” Just like a majority of a state gets to call a “woman” a “woman.” If a state decides that it wants to call every “man” a “woman” then that’s fine with me too.
January 10, 2010, 2:30 pmRandy says:
Twirip: “The intent of the left has always been to destroy this “vital social institution”.
Twirip: “From some reason which I have not figured out, this sort of swill from the
leftright never runs afoul of the commenting guidelines around here.”Agreed.
January 10, 2010, 2:31 pmruuffles says:
Olson is remarried, having lost his wife in the Sept 11 attacks. You know who’s not married? Karl Rove and Rush Limbaugh. Just sayin’
January 10, 2010, 2:31 pmresh says:
Good grief. Still neanderthal mutterings of marriage being grounded on some heterosexual tradition. Yawn. Marriage is an individual right in the vein that we have a right to decide to abort, copulate, sleep or divorce. Some folks need to remind themselves that the social compact is trumped by self-determination, unless Rome is burning.
And it ain’t.
Whether it’s Loving, Griswold, Planned Parenthood, Roe or Lawrence, all rights “discovered” thereof address as a subtext the sanctity of marriage as the province of the individual rather than the bullwhip of tradition. The traditionalists might as well try to make the case that we should still be using the typewriter.
January 10, 2010, 2:33 pmJon Rowe says:
therut:
If that’s true then government has no business whatsoever being in the “marriage” business. EVERYONE should get civil unions and private entities like churches should be free to deem what is a “marriage” and what is not.
January 10, 2010, 2:34 pmRandy says:
Andrew: “My main problem with the Ted Olson quote in this blog post is that it does not address why the same goals cannot be achieved via civil unions. ”
That’s because the same goals cannot be achieved via civil unions. Only marriage offers the same rights and legal protections as marriage. Even then, for gays, it’s not always the same. Example: Recently in Rhode Island, a gay couple was legally married in Connecticut, but RI doesn’t acknowledge SSM. When one man died, male spouse couldn’t get the body buried because he wasn’t a legal spouse.
Furthermore, if you truly believe that civil unions can be made equal to marriage, I would suggest that you propose to your girlfriend to not get married, but just civil unionized, and see if she agrees it’s equal. If it isn’t good enough for you, why should it be good enough for gays?
January 10, 2010, 2:35 pmcelticdragonchick says:
I, for one, am not interested in putting my family matters and personal relationships up to a popular vote. If African Americans had waited until they were “popular” enough to have equal rights in every state, they would have waited until the late 1980′s in some locals.
January 10, 2010, 2:41 pmAndrew says:
Randy, why shouldn’t gays demand that they be called “straight”? The demand that we all use exactly the terminology that some activist minority wants strikes me as politically correct bullying. It’s the same indignant mindset that works itself into a tizzy every once in a while in the United States, shortly after which the Supreme Court decides to be “hip,” and holier than the American people, and proceeds to shred the Constitution more than it has already been shredded.
Also, are you really saying that every state that offers civil unions instead of marriage for gays is bigoted and discriminatory? I certainly do not.
January 10, 2010, 2:41 pmcelticdragonchick says:
Ask some of the folks in California who discovered that civil unions were legally worthless at the hospital or with their employers insurance.
January 10, 2010, 2:43 pmJoe says:
believe the federal government should recognize any marriage recognized under state law
On policy grounds alone? I think the weakest argument constitutionally is that the feds have the power to deprive same sex couples married in Iowa, Vermont, Connecticut, Massachusetts and NH of federal benefits in the way they now do. This aspect of “DOMA,” which often is ignored, is a good target for litigation.
Anyway, litigation isn’t the only problem here. Maine’s legislature, with support of its governor, passed a same sex marriage bill only to be overridden by the people. Given their druthers, the legislature of California wished to do the same, but the governor decided a people’s amendment disallowed it. CA serves as a type of answer to MA in some ways, litigation-wise.
January 10, 2010, 2:43 pmTwirip says:
The Bill of Rights, contrary to the myth-making on the left, says diddly about “assuring minorities of their rights” against the majority. In fact the concepts “minority” and “majority” are notably absent from that document.
January 10, 2010, 2:44 pmcelticdragonchick says:
That has to one of the most depressing things I have read this week.
January 10, 2010, 2:44 pmMark Field says:
I suspect every state does do that in some sense. Most codes have a section which defines the masculine as encompassing everyone.
January 10, 2010, 2:45 pmTwirip says:
Whether you “wish” it or not, the system in this country is that your “family matters and personal relationships” are up to a popular vote. Take it up with the Founders if that annoys you.
January 10, 2010, 2:47 pmcelticdragonchick says:
No, we will take it up in court. Too bad if that annoys you, because we are not going away.
January 10, 2010, 2:49 pmporterhouse says:
Olsen is wrong to make this a constitutional issue, this needs to be decided through the democratic process.
I support gay marriage, but the reason it fails to be passed so often is because gay people and its supporters are often very wealthy, the supporters are used to getting their way, and they are fighting a moral cause. For these reasons, they think things should be easy and that they can buy political ads and get rich Hollywood celebs to speak on their behalf and people will do the “right” thing. The US has never worked this way, democracy is about coalition building and slow progress.
Gay marriage supporters need to build coalitions with elderly people that might not be gay but want to enter into marriage type institutions, but maybe they don’t want to belong to the same institution that belonged to when they were younger and wanted children. We need to encourage all Americas to be in committed relationships, gay people, widows, people that do not want children, old people without children, divorced people that don’t want more children, etc., because studies show that people are happier and HEALTHIER when they are in a committed relationship. In short, the reason gay marriage fails is because its supporters are too wealthy and too politically connected and are not willing to create a coalition to push their cause.
January 10, 2010, 2:51 pmChris Travers says:
Actually I entirely agree with Olsen. I think when public benefits are offered married couples, I think it is reasonable to ask whether equal protection allows arbitrary lines as to which couples are eligible for such benefits.
on the last point, I recently read “Sin, Sex, and Self-Control” by Norman Vincent Peale. I don’t know about the rest of Peale’s works, but that book is pretty good (and I say this as one of those weird Neo-Pagans) and you might get a lot out of it, particularly in his discussions of questions of what divorce statistics mean and what is necessary to counter them and build stronger marriages. (He points out that the ability to choose to get divorced means that one also has a choice to stay in the marriage, and that this becomes a more valuable choice since it is more freely given. The metaphor he uses is turning quicksand into bedrock so that one can build a high rise building on top of it.) While his values are very clearly way right of mine, he also advocates a very refreshing open mindedness.
January 10, 2010, 2:57 pmTwirip says:
The courts don’t make the law under our system of government.
January 10, 2010, 3:00 pmOrin Kerr says:
Does anyone have a video or the transcript of Ted Olson’s Supreme Court Roundup in 2003, right after Lawrence v. Texas was handed down? It would be interesting to compare what he said then to what he says now.
January 10, 2010, 3:01 pmChris Travers says:
I like that proposal, btw.
January 10, 2010, 3:01 pmChris Travers says:
this coming from the same person who wants to ban American-Yemeni marriages…. Just sayin…..
January 10, 2010, 3:03 pmS says:
I don’t discount claims of ‘massive resistance’ and believe we have seen signs of this already. It’s strange to me that this case is brought forward by lawyers not previously involved in gay rights. I think gays should have marriage rights (almost as much for society’s sake, as for gays) and I hope this turns out in their favor but it is high risk and seemingly zero sum, either in a court’s decision in which gays lose or the resistance which follows. (On the other hand, I hope this would not have been how I felt on the eve of Brown v. Board.)
January 10, 2010, 3:04 pmTwirip says:
I’m shocked to hear that, Chris. Shocked!
Government is all about offering unequal benefits to people based on arbitrary reasons.
I’ve noticed that when liberals praise open-mindedness, they always seem to do so in the context of praising people who agree with liberals about something.
January 10, 2010, 3:07 pmTwirip says:
Is there some thought there, Chris? Just saying you don’t like something makes you sound, I don’t know, reactionary.
January 10, 2010, 3:09 pmTwirip says:
The left have always been admirably up-front about what they are doing and why. I’m not telling you my opinion here, I’m telling you the lefts opinion. If I tell you that Rousseau argued for something, the appropriate disagreement is “No, he did not, and here is why”.
It’s not ‘You’re a poo poo head too!”.
January 10, 2010, 3:15 pmMike McDougal says:
You can’t be serious. Where do you think COMMON LAW comes from?
January 10, 2010, 3:26 pmTwirip says:
America does not live under a system of common law. It has a written constitution and a constitutional method of altering that constituton. Judges are not lawfuly entitled to make up their own law and call it “the constitution” under our system of government. The Founders mentioned this point from time to time.
We don’t live in England under their legal system. Thats one of the reasons why we still have what used to be called the “freedoms of Englishmen”, including free speech.
January 10, 2010, 3:36 pmMike McDougal says:
*poof!*
There went most of tort law.
January 10, 2010, 3:45 pmRandy says:
Andrew: “Randy, why shouldn’t gays demand that they be called “straight”?”
Because we aren’t. And blacks shouldn’t have to demand to be called ‘white’ either.
“The demand that we all use exactly the terminology that some activist minority wants strikes me as politically correct bullying. It’s the same indignant mindset that works itself into a tizzy every once in a while in the United States, shortly after which the Supreme Court decides to be “hip,” and holier than the American people, and proceeds to shred the Constitution more than it has already been shredded.
Also, are you really saying that every state that offers civil unions instead of marriage for gays is bigoted and discriminatory? I certainly do not.”
You completely missed my point, I’m sorry to say. I never said that every state that offers civil unions is bigoted or discriminatory. Indeed, it’s a step in the right direction. However, the federal government only recognizes marriages, not civil unions. The Constitutions prohibits spouses from testifying against one another, and that wouldn’t apply to civil unionized unless there is a constitutional amendment. There are over 1000 rights associated with marriage that are NOT associated with civil unions.
Again, why should gays be satisfied with only civil unions when they are not acceptable to straight people? Is it really ‘political bullying’ to want the exact same thing that you have? Perhaps you don’t want gays to have marriage, and that’s fine. But please understand that most gay people want to get married for the same reasons you do.
T: “The left have always been admirably up-front about what they are doing and why.”
Then please do show us where ‘the left’s’ only interest in SSM is to destroy marriage and why it’s so necessary to whatever nefarious objectives they have. Be warned: We want quotes from actual lefties, not quotes from wingnuts claiming to speak for lefties.
January 10, 2010, 4:00 pmyankee says:
Litigation strategies don’t “risk” backlash, the backlash has already occurred. Little more backlash is possible: social conservatives movement have already passed anti-marriage amendments in the conservative states and the states with easy-to-amend constitutions. In Iowa, where the constitution is not so easy to amend, there are no signs of backlash.
I also think the Olson/Boies challenge is much less likely to risk backlash than state litigation is. If they were to win in the Supreme Court, any potential backlash would never make it through the difficult procedural hurdles involved. “Judicial activists” decided Goodridge and Lawrence in the same summer, but a proposed anti-marriage federal constitutional got nowhere in the GOP-controlled Congress. An anti-marriage amendment would never make it through the Democratic Senate of today. The much greater danger is that federal constitutional litigation risks creating a new Bowers v. Hardwick.
If you are concerned about a backlash in public opinion rather than a legal backlash, I think that is even less of a possibility. Public opinion has consistently trended in the pro-equality direction despite a decade and a half of gay-rights victories in marriage litigation (though there have been a bunch of losses as well).
January 10, 2010, 4:03 pmRandy says:
As for Prof. Adler’s point about a backlash, it is true that several states have voted away gay rights. BUT — this has only happened in the states where there is an easy way to amend the state constitution. In places such as Iowa or Vermont, where it is very difficult to amend the constitution, there has been no backlash, and SSM will likely stick.
So the conclusion that I think that can be drawn is this: In states where SSM is ruled by the courts to be legal, and the constitution can be easily amended, fearmongering groups such as NOM pour money into the state to convince people that vague and unsubstantiated evils will occur unless it’s reversed. Fear wins the day. In states where the constitution can’t be easily amended, such as Iowa and Vermont, or where the legislature ruled, such as Connecticut, NOM stays away and they simply live with it. The so-called backlash is limited only to those jurisdictions where NOM and the like can raise a fuss.
January 10, 2010, 4:06 pmChris Travers says:
Just pointing out that you are quite consistent in your view that the populace can determine what a valid marriage is and that you, unlike most folks on the right, don’t exclude hetero couples from that equation.
January 10, 2010, 4:06 pmJT says:
Randy,
Hypothetically, what if the law were to explicitly state that civil unions (or any term that might be applied to gay marriage) carries with them all rights and benefits and are to be treated identically to marriage (defined as between a man and a woman only). Is the argument a “separate but equal” argument, that anything other than “marriage” is a secondary class of union, no matter what rights it carries with it? or is it then ok under your analysis. I’m not trying to be picky and you generally have pretty insightful and well thought-out comments, so I’d appreciate your opinion. I’ve heard different opinions from both straight and gay friends (some even saying that man-man and woman-woman marriages should have different terms, as long as the rights and benefits are the same).
thanks
January 10, 2010, 4:09 pmGeorge78 says:
Sorry Randy, but the Gallup poll asked a different question than you are framing here. The Gallup Poll asked: “Do you approve or disapprove of marriage between blacks and whites?”
That’s not the same thing as “oppose.” One can think something is not good, and should be disapproved of, without thinking that it should be illegal.
The fact is, the overwhelming majority of States had removed legal restrictions to interracial marriages. A small minority of States still retained those restrictions when Loving was decided. This fact was noted by the Court.
The opposite is true today, with the overwhelming majority of States adding Constitutional Amendments to prevent the redefinition of marriage. Trying to appeal to Loving is, at best, disingenuous.
January 10, 2010, 4:12 pmChris Travers says:
Hmmm… I thought the Seventh Amendment assumed a common law system. Perhaps you have a better parsing of that text?
Certainly the courts can’t change the Constitution simply because it seems like a good idea, but the process of interpreting the laws and the Constitution is very much one of common law.
January 10, 2010, 4:13 pmGeorge78 says:
Not true. You seem to suggest that marriage amendments have passed only where there is a ballot initiative process. In reality, many of the amendments passed in places where there is no ballot initiative process at all. For example, AL, GA, TN, SC, and VA (all of which have Constitutional Amendments protecting traditional marriage) do not have any citizen referendum provisions at all.
Some of these Amendments passed with more than 80% of the vote, in the height of the Democrat wave of 2006.
January 10, 2010, 4:17 pmChris Travers says:
Dude… I have been called everything on this board from a Liberal to a right wing nutcase. This is probably because I think for myself rather than let pundits tell me what to think.
And BTW, as much as you might condemn it, my wife is from Indonesia…..
You might want to read the book I mentioned. I personally disagreed with the author about many things and found his constant quoting from the Bible to be a bit off-putting, but at the same time, found it to be a challenging and thought-provoking work. You would probably find more common ground but still find it challenging and thought provoking.
January 10, 2010, 4:21 pmBoaz Simovici AKA Mephistopheles says:
Of course it would be better if majorities favored equality with respect to marriage rights. No one is arguing for judicial review of popular (and arguably oppressive) legislation as a political end in itself.
I’d like to ask this question of all the other libertarian-minded originalists here. On what principled basis do we decide which questions of political morality (including the scope of individual rights, and the existence of judicial remedies) were put to the political branches, and which to the judiciary?
I ask this because I’d like to agree with Professor Barnett that issues that involve the possibility of majority oppression of minorities (especially where popular laws are motivated by the desires of a strong plurality with respect to how everyone else should decide how to think or order their intimate relationships) are inherently of the sort that the bill of rights puts to the judiciary. But as another commenter said, the bill of rights says nothing about protecting minorities. That may be what Madison and others (and especially the radical republicans)believed, but that obviously doesn’t settle the matter.
I like that principle, and it may be the sort of threshold question that can’t be settled by looking at text (just as the choice of originalism or other methodologies can’t be made by looking at textual meaning). But if that’s true, then on the other hand it seems that much of the constitutional discourse about rights and judicial powers is kabooki theatre.
Similarly, I’m never impressed by the refrain that “policy” was meant to be settled by democratic majorities. Sure, that’s one of the purposes of having a constitutional republic — people deserve to determine their leaders under procedures that assure that their voice is continually heard. But that principle, too, is not found in the constitution. Some parts of the text protect it, an others arguably limit or qualify it.
January 10, 2010, 4:26 pmJon Rowe says:
The common law issue is a thorny one. We do have a common law system in a methodological sense. That is, stare decisis, following the persuasive opinions of past precedents, etc. — these are characteristic features of common law systems. And Federal Courts (including the Supreme Court) do this. Many law scholars do indeed argue the common law heritage of the American judicial system gives judges permission to make the law up as it decides cases and controversies.
Though, as a matter of positive law, constitutions and statutes trump un-codified common law.
Where it gets a little thorny is common law judges acted like they “discovered” not made up the law. The “brooding omnipresence in the sky” — whatever law it informed — was supposed to trump. Common law judges thought they were following this higher law as they decided cases and controversies.
According to Philip Hamburger, judges, that is “common law” judges, felt duty to follow law from “higher” authority. Constitutions trump statutes, federal trumps state, and the law of God trumped all. Hamburger also notes when the legislatures decided what that “brooding omnipresence” dictated, courts would defer.
Though his thesis is quite contentious.
Ultimately the interpretative buck has to stop some. And that’s what this is all about. I find the idea of invoking God in legal disputes fascinating. But arguably that presents more problems than it solves.
January 10, 2010, 4:37 pmArthurKirkland says:
The United States’ tendency to move away from bigoted discrimination, given enough time, has been one of its strengths. Sometimes the progress is accomplished primarily by enactment of statute, sometimes by court decision, sometimes by evolution of citizens’ views; customarily, all three factors contribute to the change over time. Each strikes me as a legitimate method.
With respect to expanding equality for gays, whichever method works suffices for me. And no method, I suspect, would satisfy those who wish gays would be ostracized, ignored and/or cured.
It would have been interesting to follow some VC threads associated with the Brown or Loving contexts — and to use them as references in evaluating contributions to current debate.
January 10, 2010, 4:38 pmJames N. Gibson says:
What I like about this is that back in the late 60s and early 70s people like Randy were actually telling people never to get married. It was the time of free love and marriage was outdated. Now these same people who attacked marriage in the 60s because it interfered in their fun have found a reason to have it {Money}.
And yet to what end. We now have two high profile gay separations, involved with the Gay marriage movement, that are not working like “traditional” divorces. One other responder to this thread defined marriage as an individual right. Yet even Olson description makes it a collective involving two people. Thus divorce is a collective action in which there are such things as Alimony, Separation of “Community” property, and child support. The quickie marriages that occurred in Massachusetts were the participants within a year filled for divorce (some in states they recently moved to) have none of these features since they never really had a marriage.
Oh, and Randy, here’s another discrimination case for you. A gay dying of AIDS got married to his lover in Canada and then went to live in New York. After dying his significant other filed for the man’s property (forget about whether he was buried). Of course New York doesn’t recognize gay marriage so the discrimination. My problem now is, thanks to you bringing up a similar sounding gay death in Rhode Island, did the man know he was dying before he moved to RI or after (accidental death will be accepted as “after”). Otherwise why shouldn’t I view both cases as any different then these gay couples in Massachusetts who right after marriage moved to a “homophobic” state to then file for divorce and require said state to recognize Gay marriage.
January 10, 2010, 5:02 pmAndrew says:
Randy, I think it is perfectly possible for a state to confer any rights it wants upon “unionized” couples, including any rights that a state confers upon “married” couples. Therefore, it is unnecessary to forcibly prevent a state from using the terminology it wants. A state should be able to call gay people gay instead of straight, and a state should be able to call a gay couple unionized instead of married. This is a very simple free speech issue. I strongly object to the efforts at forcing the people and government of California to speak in a way that they prefer not to speak.
It is a completely separate issue whether it is sufficient to grant gay couples 99% of the rights guaranteed to married couples, as compared to 100%. Personally, I think 99% is quite adequate. As usual in disputes like this, the elite-activist-class wants to focus on only the rights of one set of human beings, while completely ignoring the rights of others. For example, I support laws that establish and protect a child’s legal right to preferably have both a mother and a father, all other things being equal. Therefore, I oppose attributing 100% the same rights to people in civil unions as compared to marriages. In any event, even if I felt differently about childrens’ rights, that would still not justify forcing an entire state and nation to use the word “marriage” with respect to gay couples, against their will. If a majority votes to use the label “marriage” for gay couples then so be it, but courts have no business telling a state how to speak, in my opinion.
January 10, 2010, 5:30 pmtamerlane says:
Ted Olson’s case is based on the implicit premise that “married” homosexuals behave similarly to married heterorosexuals in a traditional marital union. If this is not the case his argument breaks down. And we now do know that this is not the case: Studies show that “married” homosexuals behave in a far more sexually promiscuous manner than do married heterosexuals. Homosexual “marriages” also show much higher rates of disssolution and the dissolutions occur earlier in the “marriage” than is the case with heterosexual marriages (although further data will be needed to firm up this position). Children raised by partners in homosexual unions are much more likely than other children to engage in sexual behavior that threatens both their own and the public health.
January 10, 2010, 5:35 pmJohn D says:
James N. Gibson,
When you say, “people like Randy,” do you mean “gay,” or do you mean do you mean something else? I know that there were many people in the 60s claiming that marriage was outdated. Many of them were heterosexuals. Given that as recently as the 60s, marriage significantly advantaged women, it’s no surprise that many of the proponents of free love were heterosexual men. I read a piece by a woman who was active in the Peace movement who said that the men viewed her role as “making coffee and putting out.”
I’m somewhat confused by your reference to couples marrying and then one spouse dies. And? Should they be treated differently than a opposite-sex couple? Is there a reason for this? Would it matter if one spouse knew that he or she was terminally ill? This is the crux, after all, of Perry. Is there a legally justifiable reason to treat same-sex couples differently?
As for couples who marry in one state and then after moving (or returning) to another state, I know that states can decline to view the marriage as valid (and thus have nothing to terminate), but why should they? Why should I be legally married in one state and legally single in another?
If I take a plane from Boston to Los Angeles, does my marital status change as I cross jurisdictions at cruising altitude? Am I unmarried as we pass over Nevada? Is my status indeterminate in New York?
January 10, 2010, 5:40 pmJohn D says:
Andrew,
Somewhat prying question: are you gay? Are you waving away your 1% (which is probably more like 10%) of rights or mine? I’m a man with a husband and I’m not waiving 1% of my rights. Why should I? You mean “all people are equal, but some are more equal”?
Further, I suspect short of an amendment that proclaimed that “same-sex legal unions” are equivalent to marriages in all respects, they’re not going to be. Not that I think the federal and state government are capable of collectively giving us a “same-sex legal union.” Not going to be done. I want my slice of the pie and I’m not giving up on it over the promise that someday I might be given a cupcake.
Let’s examine the legal union question. It’s going to affect gay people, a small portion of the population. There are well-funded groups that oppose rights for gay people (note how they have attempted to overturn California’s registered domestic partnerships as “too similar to marriage”). Oh, man, the foot dragging we would get on creating legal unions for same-sex couples, especially if every state had to agree with them.
Do we expect a Congress that can’t repeal Don’t Ask Don’t Tell (despite popular support for its repeal) is going to hand the nation a federal same-sex union? Please. This is absurd on the face of it.
As for “laws that establish and protect a child’s legal right to preferably have both a mother and a father” there are no such things. And how would we enforce that? “Mrs. Jones, I know you’re broken up over the death of your husband, but your children have a legal right to a father. Either remarry by the end of the year, or we will place your children with a husband and wife.” I think you really mean “disfavor same-sex couples for adoption.”
January 10, 2010, 5:53 pmkrs says:
He speaks very eloquently and persuasively on the policy reasons for recognizing gay marriage but doesn’t seem to me to make any serious attempt at backing up the constitutional argument.
I think it’s on this latter score that conservatives can rightly claim “betrayal.”
January 10, 2010, 6:18 pmtheobromophile says:
Randy: your assumptions (namely, that every system with civil unions will inherently carry fewer rights than marriage, and that straights wouldn’t want to civil union) are not true.
I know many people who would not care if they were to marry at a courthouse, in a park, or in a church. If the former two were called “civil unions” and the latter called a “marriage,” that would, actually, work for most of the population. Believe it or not, most conservatives I know are for civil unions that carry the exact same rights as marriage. Some are even of the “civil unions for all” variety.
Somehow, though, the gay population does not want to take the thoroughly reasonable compromise being offered to them (and would prefer to spend their energy excoriating Carrie Prejean for expressing the exact same opinion as Barack Obama and Bill Clinton). What we seem to have happening is that a bunch of atheists and agnostics are hell-bent on redefining a religious term, then crying foul when people (rightly) defend their religion.
What I can’t figure out is why a bunch of atheists and agnostics actually care about whether or not their batch of government rights carries the same name as a religious institution.
You would get the same result if you were to try to redefine a First Holy Communion.
January 10, 2010, 6:27 pmSW says:
I don’t get why it seems that way to you, unless you believe gays are agnostic and atheist by definition. Indeed, it would seem that those gays who are religious would be the ones interested in a religious term. You further ignore the fact that marriage has a secular meaning. (As an aside, I am currently reading a history of the Gonzaga of Mantua, during the renaissance, which discusses marriage practices and how they had practically no church ceremony involved, at that time).
January 10, 2010, 7:06 pmAlan says:
Was there ever a time when people looked at the Equal Protection Clause and noticed that the word just after “equal” is “protection?” It’s equal protection, not equal treatment. The former can’t possibly be anywhere near as broad as the latter. It seems to me that almost everyone in constitutional discourse has made a pretty studied effort to ignore the language of the Amendment. I think a lot of constitutional law would have come out differently if prevailing counsel in so many landmark cases had been forced to answer this: “What is it that your clients are not being equally *protected* from?”
Other inconvenient points very studiously ignored: The Fourteenth Amendment was ratified principally for the benefit of black people, and it didn’t even give them the right to vote. Even clearer, Section 2 of the Fourteenth Amendment makes it undeniable that the Fourteenth Amendment assumes by its very language that women would not be able to vote (thus making it rather difficult to understand how that amendment requires across the board an “exceedingly persuasive justification” for gender classifications). Only by ignoring these rather obvious impediments to egalitarian constitutional interpretation has the case law made possible what should be utterly ludicrous: a holding that the Fourteenth Amendment requires legal recognition of same-sex marriage, when by its terms it plainly doesn’t require the recognition of equities even more morally imperative.
Perhaps (indeed, probably) the ratifiers of the Fourteenth Amendment didn’t intend such a narrow interpretation of the phrase “equal protection.” But if their understandings are consulted, then obviously the gay-marriage argument fails on a different ground. If we’re going to interpret constitutional language in the light of modern understandings of the text, let’s be honest about it. Equal protection means equal protection, not equal treatment.
January 10, 2010, 7:22 pm11-B.2O/B4 says:
I oppose gay marriage, but then I oppose hetero marriage too…so whatever. As long as marriage has legal ramifications, it must be evenly applied. I tend to view the institution as a purview of religion, but if the government has a version that conveys tax (or adoption, or w/e) advantages, then they need to be available to everyone. Whether it is called “marriage” or “civil unions” or “ramshackling the defenestration” is quite beside the point.
January 10, 2010, 7:26 pmChris Travers says:
There are legal protections afforded to married couples, no?
January 10, 2010, 7:36 pmtherut says:
I might note that saying a man has a husband or a woman has a wife is again a change of meaning to the point of gibberish. You can say it but saying it does not make it so. Neither will a law or court ruling.
January 10, 2010, 7:41 pmAlan says:
Benefits, yes. Privileges, yes. Rights, sure. Protections? No. Again, what is it that the married couples are being protected from? Nothing. These aren’t protections. They’re often referred to as protections, of course, but that makes no sense as a matter of simple English. If they are “protections,” then “equal protection” collapses into “equal treatment,” and that makes no sense. Again, the Fourteenth Amendment, properly interpreted, obviously didn’t even give suffrage to blacks or women, so it plainly doesn’t mean “equal treatment.”
January 10, 2010, 7:41 pmArthurKirkland says:
My marriage was conducted by a judge in a botanical conservatory. Did I miss the part about my batch of government rights carrying the name of a religious institution.
January 10, 2010, 7:49 pmAndrew says:
According to the California Supreme Court:
So, it seems to me that Proposition 8 does nothing to prevent “same-sex legal unions” from being equivalent to marriages in all respects, at least according to the California Supreme Court.
January 10, 2010, 8:08 pmAnton says:
And here’s David Boies in the WSJ last July.
January 10, 2010, 8:17 pmChris Travers says:
I would agree with you if the federal government treated civil unions the same way as marriages. Including tax status and immigration possibilities….
January 10, 2010, 8:20 pmhiscross says:
Gay marriage will succeed in America. However, it’s results will be part of the overall self destruction of America. God is very clear how He wants us to live even if We don’t care for His ways. In the end, God will judge and his verdict will be final and everlasting. My statement will be unpopular, but must me said as a warning and as a way to to tell people that God is a fair and just. His ways are not Our (human) ways.
January 10, 2010, 8:32 pmJames N. Gibson says:
I mean something else, like social progressive. People who take stands for something because it is new, progressive, or just “Change”. Keep in mind my point was the people of the Hippie movement, who were standing against marriage back in the late 60s, because marriage was a outdated concept. So your followup that it benefitted men over women is quite true. But that being true, the official reason for it was it was outmoded and stood against the tide of the future.
By the way, liked your comment about serving coffee. I think Bill Clinton is now quoted as saying to Ted Kennedy that Barrack a few years would have been bring us coffee.
January 10, 2010, 8:36 pmKevin says:
Oh, nonsense. A right recognized by 45 out of 50 states IS effectively nationalized. Certainly Thomas would listen to the Privileges/Immunities argument …. see the Chicago guns case when it comes out.
January 10, 2010, 8:44 pmKevin says:
I’m pretty sure that the CA Court’s Prop 8 decision read CA law as doing just that. They narrowly read Prop 8 as simply reserving a WORD, but not denying any substantive benefit of “marriage” to “civil unions.”
January 10, 2010, 8:56 pmRicardo says:
I’m not sure where you are getting your information from if you think prominent gay groups have not been criticizing Obama for his stance on gay issues (on Clinton, I believe there was indeed a lot of criticism from many mainstream voices in the gay community over Don’t Ask Don’t Tell and DOMA). For starters, here’s an article by prominent gay columnist Dan Savage charmingly entitled “Big Gay Groups to Obama: F*** You”
January 10, 2010, 8:56 pmJon Rowe says:
Pardon me but this is bullshit. Most “married” homosexual couples are lesbian and consequently not promiscuous.
Only to the extent that you make things up and cite no data.
Ditto.
January 10, 2010, 8:56 pmProMarriage says:
Why don’t we call groups of three or more people “two” or “couples”, then polygamists can marry under laws describing marriage as “a union of two individuals.”
As long as we’re going to arbitrarily corrupt the language via activist courts, why not?
January 10, 2010, 9:24 pmProMarriage says:
Children raised by partners in homosexual unions are much more likely than other children to be denied a mother and a father.
January 10, 2010, 9:25 pmProMarriage says:
Olson asserts, “Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed.”
But science has taught no such thing. Someone should ask Ted what caused the ancient Greeks and Romans to have such a high incidence of the “gay gene” compared to modern humans.
Olson says, “The California Supreme Court described marriage as a ‘union unreservedly approved and favored by the community.’”
But in fact that standard does not apply to homosexual relationships.
January 10, 2010, 9:32 pmJohn D says:
James,
But neither Randy nor I are social progressives from the 1960s. (At least I’m not. In the 60s, my concerns tended to be focussed on the global finger paint shortage, which could only be rectified with trips to the toy store.)
I think it’s safe to say that most 21st century gay progressives have repudiated the 60s view of free love. Certainly it’s true of marriage activists. Dan Savage recently commented that the gay community is telling conservatives “you were right about free love.”
And so while some of the earlier leaders of the gay rights movement (and the women’s rights movement) were against marriage. And? Times have changed. Leaders have changed.
In the 1950s, the conservative movement was segregationist. William F. Buckley famously spoke out against segregationists conservatives. Nevertheless, should we tar all contemporary conservatives as segregationists because an earlier generation was?
That would no more be right than it would be to accuse proponents of marriage equality of being part of the anti-marriage movement of the 60s. I only see one group that doesn’t want people getting married. They call themselves conservatives.
January 10, 2010, 9:34 pmProMarriage says:
An earlier comment said, “Unfortunately I don’t believe that Olsen is this foolish, which leaves me but no choice but to conclude that he is dishonest.”
We must also assume that anyone who brings up Loving vs. Virginia is being disingenuous. There is self-evidently no comparison whatsoever between the role of gender in intimate human relationships and the role of race in those relationships.
January 10, 2010, 9:38 pmJon Rowe says:
Actually science has. Left handed people, likewise, have the ability to engage in right handed behavior and vice versa. The majority of Ancient Greeks or Romans who partook in homosexual behavior were not “oriented” towards homosexuality, in the sense that they were “homosexuals” like left handed folks are “Southpaws.” It was a ritual. Science shows that somewhere around 5 % (give or a take) are oriented towards both a homosexual and a left handed orientation, despite whatever behavior folks may choose to engage in for customary, cultural, or ritualistic purposes.
January 10, 2010, 9:41 pmDoDoGuRu says:
Just sayin’ what exactly?
January 10, 2010, 9:42 pmscattergood says:
The problem with Ted Olsen’s argument is that it is just plain wrong. From the first sentence of the snippet included above:
There is NO SUCH THING AS GAY MARRIAGE. Why? Because what is being implemented is SAME SEX MARRIAGE. While many people who engage in homosexual behavior would like to participate in SSM, they are not the only group who may decide to participate. Unless we want the gov’t invesitgating the sexual conduct of two people of the same sex to determine if they are ‘legitimate’ in their SSM?
Further he goes on to say:
Again he gets it wrong. The values conservatives prize is the nuclear / traditional family whose primary purpose is to create new generations for soceity, and protect and nurture them while they come into adulthood. And in SSM, this action cannot be the primary focus since in order to create the next generation within the confines of a same sex relationship, you have to get significant outside help.
Further, a very big value that conservatives tend to focus on is self restraint. And, this really is THE issue. For it has been shown time and time again that there is no purely deterministic cause for people to engage in homosexual behavior. Study after study shows this to be the case. It is the total abandonment of self restraint that SSM condones that violates a core conservative ideal.
January 10, 2010, 9:43 pmtherut says:
Ted must be using the “cause we say so” science. Shame on him. He knows better than this. But alas, he is a lawyer. Reminds me of the abortion arguments. “The cause we say so science” says a abortion does not kill a living organism , human being, person under the Constitution, a thing that can not feel pain yet or whatever sounds good.
January 10, 2010, 9:43 pmRicardo says:
It’s not at all clear they did have a higher rate of homosexual preferences. Just as it is not clear whether incidence of homosexuality in the U.S. is as low as it appears to be based on survey data. J. Michael Bailey did an experiment a few years ago that showed many men who claim to be “bisexual” are exclusively sexually aroused by men and not by women. Bailey’s research also shows that sexual preference is highly correlated among identical twins and less so among siblings. Additionally, it is pretty well-established that either men consistently over-report the number of sexual partners they have had or that women consistently under-report the same. Self-reported measures of sexual behaviors and preferences are never going to be very accurate.
January 10, 2010, 9:48 pmJon Rowe says:
The “gay gene” argument as used by anti-homosexual folks is a straw man. It doesn’t matter what “smoking gun” gene has or has not been discovered, the fact is the homosexual orientation is no more chosen or changeable than a left hand orientation.
And likewise, there is about as much evidence for a “left handed gene” as there is for a “gay gene.“
January 10, 2010, 9:48 pmMiriam says:
Glad someone beat me to it – Tamerlane, if you are going to cite ‘stats’, you have to bring the evidence. I have seen no studies on children in same-sex marriages, if you have, trot out the sources or keep quiet.
Now, a question: I generally support gay marriage. Though I wish the gov’t was able to stay out of the marriage business entirely (like any good libertarian-leaning conservative), that horse has left the gate.
Here is a problem I have been unable to resolve and would like to hear any opinions from the gallery:
If the nation legalizes same-sex marriage, on what basis will it retain other unions as illegal? I, for one am against polygamy – as I think it undermines the rights of those involved -as well as opening the door for the introduction of sharia type structures in our society. On what legal or logical basis would polygamy be unnaceptable if same-sex marriage is deemed alright? You may say that they are totally different entities – correct – but, once redefined, marriage is open to other sorts of redefinitions. How can this not follow?
Btw, I’m not arguing that child-marriage would follow, or incestuous marriages, because there is a strong enough societal proscription against the latter, and existing laws to protect against both – at least for unions formed in this country (note children sent overseas for forced child marriages in Europe/UK – perhaps even US).
So how can we justify banning polygamy?
Again, please note, I’m generally for same-sex marriage, since the gov’t is already, irrevocably in the marriage business.
Thanks for any feedback – particularly from a legal perspective.
.
January 10, 2010, 9:49 pmMiriam says:
“It is the total abandonment of self restraint that SSM condones that violates a core conservative ideal”.
Oh gawd – do you take us to be fools? I’m a conservative, don’t speak claptrap and include others in it.
.
January 10, 2010, 9:55 pmJon Rowe says:
This at best contains a less than 1/2 truth. Study after study shows that for some small but significant (4-5?) % of the population, the homosexual orientation is unchosen, fixed, if not at birth at a very young age in the single digits, and if not immutable, highly intractable.
That’s the conservative reality that folks like Olson are attempting to deal with. Olson is actually trying to contain this objective attribute in human nature under the conservative convention of “marriage.” To deny homosexuals marriage is to “abandon self restraint.”
January 10, 2010, 9:55 pmProMarriage says:
John Rowe:
So we agree, the prevalence of the behavior can be greatly influenced by cultural acceptance of the behavior.
January 10, 2010, 10:01 pmValerie says:
Although there are some people who vigorously oppose the notion of “gay marriage,” the vast majority of people are willing to accept a “domestic partnership” with the same rights and responsibilities as marriage, along the lines of California law.
So…. gays who are serious about having a state-sanctioned relationship can have it, provided they are willing to express a little sensitivity to other people’s religious values.
The simple way to get recognition for “gay marriage” is to settle for “domestic partnership” initially, and then let other people get used to the concept. According to the Supreme Court of the State of California, we are talking here about simply using a different phrase, not a difference in rights.
January 10, 2010, 10:03 pmProMarriage says:
Society is under no obligation – legally, constitutionally, morally – to pretend that two different types of inter-personal relationship are the same, any more than we’re required to pretend 2 = 3.
January 10, 2010, 10:05 pmRicardo says:
As is the case with infertile couples or those who choose to adopt children.
Only if you assume there is something inherently wrong with homosexual sex. If you don’t see anything wrong with it, it’s long been understood that one of the perks of marriage is getting to have sex with another person without having to feel guilty or confess to your priest, rabbi or other spiritual adviser.
January 10, 2010, 10:05 pmGeoff says:
Why the Equal Protection clause doesn’t work here:
Everyone is allowed to marry someone of the opposite sex. That rule applies to everyone equally.
January 10, 2010, 10:20 pmJon Rowe says:
Only in the sense that society may “construct” institutions that attempt to make left handed folks write righty and vice versa, and for whatever reasons.
The question is how do those institutions exist in the long run? Re the Ancient Greeks and Romans, they were heterosexually oriented men engaging in a homosexual convention as a stopgap (women were sequestered and all that) who went off to marry women (who become unsequestered) and sire families. They didn’t, as it were, “turn gay.”
By way of analogy, we can construct a situation where you do certain things left handed (or if you are right handed, vice versa) for X period of time. When you are done with X time, you’ll likely snap back into shape. (i.e., the men who have opportunistic homosexual sex in prison when they get out, go back for women.) There are limits to what “nurture” can do. And changing evident sexual orientations is a matter of “nurture.”
January 10, 2010, 10:22 pmKen Arromdee says:
Also, both the rich and poor are prohibited from sleeping under bridges.
January 10, 2010, 10:38 pmProMarriage says:
“They didn’t, as it were, “turn gay.””
It is the behavior that matters.
January 10, 2010, 10:39 pmS says:
Matters to whom?
January 10, 2010, 10:55 pmProMarriage says:
Matters to society. Laws are about behavior, not “orientation”.
Laws discriminate based on behavior. That’s what laws do.
January 10, 2010, 11:06 pmOren_ says:
Aside from the fact that the Federal government does not recognize DP rights to joint filing of taxes, social security survivor benefits, probate taxes, immigration, interstate FF&C and so forth.
If conservatives want to propose a bona-fide equality of rights under a different name that would be quite a game-changer. Instead we get moderate conservatives rooting for a separate and unequal while the hard conservatives decrying the whole thing as an attack on civilization.
For my part, I prefer civil unions for all (and marriages under the auspices of whatever deities can make enough time to consecrate your union) since it makes explicit your promise of equal rights.
January 10, 2010, 11:10 pmJon Rowe says:
Should laws discriminate against left handed behavior?
January 10, 2010, 11:14 pmOren_ says:
Interestingly, the TX statute at issue in Lawrence made it criminal for a man to engage in anal sex with another man but not with a woman.
[ Aside, what they lack in Constitutionality, the TX legislature seems to make up for with brevity and plain language. Half-kudos? ]
January 10, 2010, 11:19 pmRandy says:
“Hypothetically, what if the law were to explicitly state that civil unions (or any term that might be applied to gay marriage) carries with them all rights and benefits and are to be treated identically to marriage (defined as between a man and a woman only). Is the argument a “separate but equal” argument, that anything other than “marriage” is a secondary class of union, no matter what rights it carries with it? or is it then ok under your analysis. I’m not trying to be picky and you generally have pretty insightful and well thought-out comments, so I’d appreciate your opinion. I’ve heard different opinions from both straight and gay friends (some even saying that man-man and woman-woman marriages should have different terms, as long as the rights and benefits are the same).”
I think that if civil unions afforded exactly the same rights, benefits, and protections of marriage, many gay people would indeed accept it. However, the problem is that civil unions will *never* afford all the same rights. First, we have the DOMA, which expressly prohibits the federal government from treating SSM with any validity whatsoever, and that includes civil unions. So for instance, in immigration, spouses from a foreign country can gain residency in the US, but civil unionized. Civil unionized partners don’t get the spousal benefits of social security, nor the federal tax benefits of allowing 100% of one’s estate pass tax free to another spouse upon death. Websites have found over 1000 rights and benefits that accrue to married couples, and not civil unions. Even something has simple as hospital visitation rights are not afforded to CVs but are only to married couples.
Let’s suppose, however, that congress repeals DOMA, and also passes a law that all civil unions will henceforth be treated as marriages. Still doesn’t affect constitutional issues — we would need an amendment to the US constitution. Good luck on that one.
Finally, if CVs really are made to be the legal equivilent of marriages, then why not just allow gays to marry? After all, there are currently six states that allow, not to mention several other countries (hurray for Portugal!). What’s the point is keeping a separate but equal track just for gays?
January 10, 2010, 11:24 pmRandy says:
I was a child in the 60s, but even when I grew up, I never suggested that marriage be abolished. No one else I know did either. However, I know several people who don’t believe in marriage (straight people) who live together and aren’t married. Perhaps they are destroying marriage, but they are straight people, not gays, so don’t blame us for that. And it IS their right to not marry, isn’t it? Or would some people force people into marriage somehow? It’s really a bizarre argument.
“The simple way to get recognition for “gay marriage” is to settle for “domestic partnership” initially, and then let other people get used to the concept.”
And yet, all sorts of people oppose even that — anything that would ‘resemble’ marriage for gay people is to be resisted. Apprently, you straight people have screwed up marriage so much that a handful of gay people getting hospital visitation rights will topple the institution.
Still waiting for Twirip’s quotes from the lefties…..
Scattergood: “The values conservatives prize is the nuclear / traditional family whose primary purpose is to create new generations for soceity, and protect and nurture them while they come into adulthood. And in SSM, this action cannot be the primary focus since in order to create the next generation within the confines of a same sex relationship, you have to get significant outside help.”
What Scattergood refuses to acknowledge is that many gay couples *already* have children, one way or another. I agree that children are better off with married parents, and probably most people do. If he truly was concerned about the welfare of children, and the traditional values, then he would be in favor of allowing children the rights and benefits that they get by having married parents. Afterall, it’s better for these children to have married parents than unmarried parents, right?
Or what would you do with children of gay parents? How is keeping their parents unmarried a good thing for the kids?
January 10, 2010, 11:35 pmProMarriage says:
“Should laws discriminate against left handed behavior?”
I don’t see how that question has the slightest relevance. I don’t think you honestly believe so either.
January 10, 2010, 11:39 pmProMarriage says:
Children are better off with a mother and a father.
January 10, 2010, 11:41 pmRandy says:
Miriam: ” On what legal or logical basis would polygamy be unnaceptable if same-sex marriage is deemed alright? You may say that they are totally different entities — correct — but, once redefined, marriage is open to other sorts of redefinitions. How can this not follow?”
Very simply. A would-be polygamist still has the advantage over gays — a man can still marry one woman that he loves. If he really falls in love with another woman as well, he can’t get married, but at least he gets that one legally recognized relationship. Gays don’t even have that.
Everyone should be entitled to enter into a relationship that is legally binding. The only ones who are denied this right are gay people.
However, if the polygamy issue is the only one stopping you from supporting SSM, then the answer is very simple — let’s get a constitutional amendmend banning polygamy. Surely, that’ shouldn’t be too much trouble — it’s already the law of the land, and there is almost no one who would oppose it. That would put an end to the slippery slope argument.
“For it has been shown time and time again that there is no purely deterministic cause for people to engage in homosexual behavior”
I’m always amused when people profess to know me better than I do myself.
January 10, 2010, 11:41 pmMiriam says:
Reposting question, hoping for feedback:
a question: I generally support gay marriage. Though I wish the gov’t was able to stay out of the marriage business entirely (like any good libertarian-leaning conservative), that horse has left the gate.
Here is a problem I have been unable to resolve (and which Ted Olson did not cite, surprisingly in his list of arguments against same-sex marriage) and would like to hear any opinions from the gallery:
If the nation legalizes same-sex marriage, on what basis will it retain other unions as illegal? I, for one am against polygamy — as I think it undermines the rights of those involved –as well as opening the door for the introduction of sharia type structures in our society. On what legal or logical basis would polygamy be unnaceptable if same-sex marriage is deemed alright? You may say that they are totally different entities — correct — but, once redefined, marriage is open to other sorts of redefinitions. How can this not follow?
Btw, I’m not arguing that child-marriage would follow, or incestuous marriages, because there is a strong enough societal proscription against the latter, and existing laws to protect against both — at least for unions formed in this country (note children sent overseas for forced child marriages in Europe/UK — perhaps even US).
So how can we justify banning polygamy?
Again, please note, I’m generally for same-sex marriage, since the gov’t is already, irrevocably in the marriage business.
Thanks for any feedback — particularly from a legal perspective.
January 10, 2010, 11:42 pmRandy says:
Promarriage: “Children are better off with a mother and a father.”
Agreed. So are you arguing that children with one parent (because, say the father died in Afghanistan, or the mother died in childbirth, or the parents got divorced), should be taken away from the parents? No of course not.
Are you arguing that the children of gay parents should be taken away? To where? Are you ready to adopt the thousands of children already being raised by gay parents? Oh, no — I didn’t think so.
So you are one of those arm chair activists — you blithely argue to restrict the rights of others, and you really don’t care whom it hurts, even if the those it hurts are the very people you profess to ‘protect.’ I have nothing but contempt for those type of people.
Promarriage: “Society is under no obligation — legally, constitutionally, morally — to pretend that two different types of inter-personal relationship are the same, any more than we’re required to pretend 2 = 3.”
Right — because a gay couple can’t possibly love each other like a straight couple. Such willful ignorance can’t be argued with.
January 10, 2010, 11:46 pmJon Rowe says:
Check out the history of laws or customs that discriminated against left handed behavior?
January 10, 2010, 11:46 pmyankee says:
Of course there isn’t, any more than there’s a purely deterministic cause for people to engage in heterosexual behavior. People aren’t robots; having any kind of sex with anyone is a choice, unless you are raped.
The same is true with choices not to have sex, which people make all the time: not to have sex with certain partners, or at certain locations and times of day, or not to engage in particular sex acts or positions, and so forth. No deterministic force of nature inexorably compels straight men not to give blowjobs, they just choose not to because they find the idea unappealing or (more likely) repulsive. Likewise with straight women and lesbian sex. And likewise with gays and lesbians and heterosexual sex.
January 10, 2010, 11:51 pmRandy says:
One question to those opposing SSM: SSM is currently legal in the states of Massachusetts, Vermont, New Hampshire, Connecticut and Iowa. (Soon the District of Columbia — hurray!). It is also legal in Canada, The Netherlands (since 2001), Belgium, Spain, South Africa, Portugal, Sweden and Norway.
Please list any issues where polygamy has been legalized, or marriage is destroyed, or civilization has come to an end, or God has smited (smote?) the population. Please show where any detriments at all have occurred in any of these jurisdictions. Since it’s been almost a decade in some of these places, surely some of the problem people fear should have arisen by now, right?
January 10, 2010, 11:53 pmscattergood says:
There is not a SINGLE study that shows this to be the case. Not one, period. Lying about that fact and stating there there is one shows how intellectually bankrupt the pro-SSM crowd is.
Here is the full statement from the American Psychiatric Association on the causes of homosexual behavior:
This is a recent revision once the studies that once were touted as possible biological causes of homosexual behavior didn’t pan out.
I see statemetns like “no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors” as pretty telling. But hey, why let a little thing like science and fact get in the way of your position.
January 10, 2010, 11:54 pmRandy says:
Oren: “Interestingly, the TX statute at issue in Lawrence made it criminal for a man to engage in anal sex with another man but not with a woman.”
But bestiality is still legal in Texas. So much for upholding ‘traditional values’
January 10, 2010, 11:55 pmProMarriage says:
“…you blithely argue to restrict the rights of others…”
I haven’t argued for restricting any right. There is no right to have marriage redefined.
“Everyone should be entitled to enter into a relationship that is legally binding. The only ones who are denied this right are gay people.”
This is simply not true. There are several limitations on marriage – one can marry a person who is a non-relative, who is of legal age, who is not already married, who is of the opposite sex. These same limitations apply to every American.
Right — because a gay couple can’t possibly love each other without the state redefining the institution of marriage. Such willful ignorance can’t be argued with.
January 10, 2010, 11:59 pmMiriam says:
Thanks Randy for the feedback – your comment did not yet appear when I reposted. Any others out there?
Btw, I was not saying that gays are more or less advantaged compared to poligamists. I simply asked how we would differentiate, legally.
I also did not say that I did not support SSM because of the ‘what about polygamy’ issue. I simply posed it as a question that needs to be dealt with.
On the other hand, your point is well taken that there are already accepted laws on the books against polygamy, but maybe they will be challenged if the idea of marriage is reopened.
I do not think a constitutional amendment is a ‘simple solution’ and a safeguard to be depended on. You can’t just say that you want one and expect it to appear.
Even if you could get one passed, you have to start with some way to logically differentiate between SSM and polygamy and I’d be interested if anyone has a solution to this.
And I’m just thinking of polygamy. There may be other types of unions that will try to get in once the gate is opened – though I doubt child marriage or incest would be among them.
Any other thoughts from other posters?
.
January 11, 2010, 12:01 amRandy says:
Scattergood, your disingenuosness is appalling. You quote from the APA document, but you conveniently left out the last clause of the sentence. Here is in in full:
Many think that
nature and nurture both play complex roles;
most people experience little or no sense of
choice about their sexual orientation.
The deliberately put in a semi-colon so that people like you wouldn’t be able to selectively misquote, but you actually went through the gyrations of putting a period at the end of “roles.” Since you believe that the APA is definitive, though, you must then agree with the sentence clause you failed to quote, which is, to repeat, Most people experience little or no sense of choice about their sexual orientation.
Moreover, the same document says “To
date, there has been no scientifically adequate
research to show that therapy aimed at changing
sexual orientation (sometimes called reparative
or conversion therapy) is safe or effective.”
Read that carefully, Scattergood — The APA says there is no research at all to show that anyone can change their sexual orientation. If it’s a choice, as you presume, it should be fairly easy to do.
It’s really pretty bad that you think you can deliberately lie about the APA’s actual position.
January 11, 2010, 12:06 amJon Rowe says:
Scattergood:
Au contraire. And this.
January 11, 2010, 12:06 amyankee says:
What John Rowe originally said (and you purport to be refuting) is that sexual orientation is “unchosen, fixed, if not at birth at a very young age in the single digits, and if not immutable, highly intractable.” We don’t need to know the specific cause to know that it’s fixed early in development and highly intractable.
We don’t know the cause of heterosexual orientation either (in fact, this is the same thing as not knowing the cause of homosexual orientation) but that doesn’t keep us from knowing that it’s fixed early in human development and is near-immutable.
January 11, 2010, 12:12 amRandy says:
Miriam: “I do not think a constitutional amendment is a ‘simple solution’ and a safeguard to be depended on. You can’t just say that you want one and expect it to appear. ”
Well, I didn’t mean to say it would be easy. But opponents of SSM want a constitutional amendment to prohibit it, and GWB even supported that. All I’m saying is that if polygamy is the biggest problem for someone, then an amendment would satisfy that objection. Amendments need not be logical or reasoned to be legally binding.
“Even if you could get one passed, you have to start with some way to logically differentiate between SSM and polygamy and I’d be interested if anyone has a solution to this.” An amendment could simply state that marriage between two people. That would allow SSM, opposite sex marriage, but prohibit polygamy.
“And I’m just thinking of polygamy. There may be other types of unions that will try to get in once the gate is opened — though I doubt child marriage or incest would be among them.” There are all sorts of unions, of course. sibling love, friendships, etc. Which is why I’m not in favor of civil unions. Let’s keep marriage as it always has been — a lifelong commitment between two people who are in love. Anyone who sincerely confuses the love between siblings and the love between two people who want to get married is grossly immature.
January 11, 2010, 12:13 amRicardo says:
Which is undoubtedly true. It’s also true that we still know very little about how exactly your height as an adult is determined. We know it has something to do prenatal and early childhood nutrition, undoubtedly something to do with genetics but we cannot come close to predicting what a given individual’s adult height will be. Yet you clearly cannot change your height once you grow up — it becomes a fixed constant once you hit the mid- to late-teenage years. It appears to be quite similar in the case of sexual orientation: “Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.”
January 11, 2010, 12:15 amChris Travers says:
Suppose the state only were to recognize “civil unions” and only churches were to recognize “marriage.” Would that satisfy you?
As to whether there is a right to have marriage redefined, I think that freedom of speech demands that we accept that people may use many words with subtly different definitions than we would choose. When people talk about gay couples being married, then it doesn’t matter what the state constitutions or the laws say, the word has been redefined. Language is funny that way since it seems to always be in motion.
Heck the fact that OPPONENTS of gay marriage are saying they are opposing gay marriage suggests the word already includes that category. It isn’t much of a feat to oppose colorless green ideas which sleep furiously, is it?
However, would you agree that committed gay couples should have all the same rights and protections as committed heterosexual couples? Why or why not?
January 11, 2010, 12:21 amR.C. says:
There are many good reasons why gay marriage isn’t marriage, and ought not be legalized, even while sexual acts between gay persons are.
Sadly, however, the reasons are as difficult for the average 21st-century person to wrap their brains around as, say, the fundamental origin and nature of morality and of rights. Most folks — sadly, even most judges — lack the philosophical vocabulary to converse constructively and precisely in areas of natural law, just as they lack the vocabulary to converse constructively and precisely in less-fundamental and more-familiar matters, such as quantum physics.
For example, one common misunderstanding is in the difference between something being an inalienable right, and something being not a right, but still within the category of behaviors which government ought not to use force to prevent.
There is no inalienable right for men to engage in mutual masturbation with other men. But the absence of such a right does not mean that any given government has just authority to outlaw it. For outlawing implies the use or threat of force, and government derives its just powers from the governed, who delegate those powers to the government as they would to employees. No individual may justly use force against two third parties to prevent them having sexual relations where there is no breach-of-covenant involved; ergo, no individual may delegate that power to the government; ergo the government does not have such powers. (But neither do the would-be-fornicators have an inalienable right to get their rocks off.)
This is the kind of distinction lacking, not just in the discussion, but in the minds of most of the participants.
So defenders of traditional marriage as a social institution backed by government are required to rely on the more low-brow arguments (“it’s traditional,” “it hurts heterosexual marriage,” et cetera), even though they’re shakier, because these defenders either don’t know the more fundamental arguments, or know that if they use them, their audience won’t understand what they are talking about. (Like Ted Olson, who, to judge from some of the errors and oversights in his piece, has not really considered the fundamentals of the topic.)
It’s a shame. The good arguments can’t be fielded because those receiving them, while they may be bright in many ways, just don’t have the background to process them.
Marriage cannot of course be redefined: It is what it is, having a nature and substance of its own, regardless of whether it is practiced poorly or well; regardless of whether it is called “marriage” or something else; regardless of whether something which is not marriage is labeled “marriage” in its stead.
In the event of the compulsory legalization of gay sexual-exclusivity unions under the title “gay marriage,” what is now called “marriage” will have to be called something else, for the word “marriage” will have been ruined for the purpose. This kind of thing happens all the time, of course; C.S.Lewis commented on how the word “gentleman” ceased to mean a hereditary landowner with a coat-of-arms and meant instead, “a person with good manners,” thus overlapping with the term “well-mannered” and depriving the language of a term for what “gentleman” had previously indicated.
But tinkering with the language in this case means further confusing people — the citizens of the United States — who are already desperately confused about the nature of sexuality, of courtship, of commitment, of fidelity: of marriage. George Orwell wrote about the impoverished Newspeak of his dystopia in 1984; certain truths could no longer be expressed in a practical way because the vocabulary for expressing them was gone.
The result will be a society in which the ethos of healthy sexuality will be abolished beyond memory. We already live in a society of abandoned, hurt, and confused children of divorce (or of bastardy, though of course that term ought always to have been understood as a crime by the parents rather than the child). This will only increase after the last connection between biology and marriage has been severed, and the numbers of children being raised by a mother and a father dwindle.
Healthy societies, by-the-by, tend to outlive unhealthy ones. And healthy societies are fruitful in the older sense of the word: They have offspring, and are happy about it.
In the end those societies which avoid legalizing “gay marriage” will last longer and be happier, all things being equal. Or, to put it differently, the U.S. would last longer and be happier without “gay marriage,” than with it.
There is really one hope for the future: Among serious Christians, and some other religious communities, a correct understanding of sexuality and marriage lingers with less distortion than in other segments of society. As a result, these folks tend to have more than two children per couple; that is, they are fruitful and multiply.
And children tend to think like their parents. Public education tries to wring all that out of them, but fortunately these same groups tend to lean toward private- and home-schooling.
So maybe, just maybe, demographics will save the day. If not, then at least there will remain some small ghetto communities of healthy marriage where these truths are instinctively practiced if not always understood.
In fighting totalitarianism, one envisions a world paved over with concrete, but holds out hope by considering that the concrete will have cracks in it, and one day, in such a crack, a flower will grow.
In fighting the dysfunction of society’s sexual confusion, one rather envisions a world plastered over with smut and secretions (an even less happy image). But here and there there among the muck there may survive something hard and clear like a diamond, and something refined like gold: A pure sexuality, living if only in exile, and shaped like wedding-ring.
January 11, 2010, 12:22 amRicardo says:
Miriam, I find the issues of SSM and polygamy to be “orthogonal” to each other: a position on one does not imply any position on the other. Muslims and pre-20th century Mormons and Chinese all favor or favored polygamy while all also rejected SSM. And there are plenty of SSM advocates who oppose polygamy.
One crucial difference is that when marriage goes from being a 1:1 relationship to a 1:2 or 1:3 relationship, unmarried members of society (men in almost all cases) are left without a partner and that it can have pretty negative consequences for society to have a bunch of young, single men with no hope of finding a sexual partner. Another difference is the arguable inherent inequality of a relationship where one man has multiple wives.
January 11, 2010, 12:40 amRandy says:
R.C.”In the event of the compulsory legalization of gay sexual-exclusivity unions under the title “gay marriage,” what is now called “marriage” will have to be called something else, for the word “marriage” will have been ruined for the purpose. ”
What a lot of sophistric baloney. Please show in any of the jurisdictions I mentioned above that allow SSM where the word ‘marriage’ has been ruined.
“But tinkering with the language in this case means further confusing people — the citizens of the United States — who are already desperately confused about the nature of sexuality, of courtship, of commitment, of fidelity: of marriage.”
In other words, you straights screwed up marriage so badly and confused the nature of sexuality so much that allowing a few hundred gays the right to marry will just topple the entire unstable institution.
“The result will be a society in which the ethos of healthy sexuality will be abolished beyond memory. ”
Really? Has that happened in any of the places where SSM is now allowed? Any hind that “healthy sexuality” is declining in Vermont? Canada? Please show us some evidence beyond conclusory statements.
I presume that a ‘healthy sexuality’ to you means no gay people at all, right? We just disappear – poof! — because we are all just so ‘unhealthy.’ I suppose you prefer a society where gay people are in healthy loving relationships would be suppressed. You would really rather I marry your daughter and live as a repressed homosexual? THAT’s not healthy, for any individual or society. Ask Ted Haggard. Ask those CAtholic priests who are supposed to be celebate but are screwing children. Repressing sexuality only leads to more pathologies, and that aint’ healthy.
Just a note: societies that repress gays are almost always societies that repress women/ conversely, societies that tolerate gays also treat women as equals. But then, in your fantasy world, the correct Christians would of course have women subserviant to the man.
” A pure sexuality, living if only in exile, and shaped like wedding-ring.”
Dan Savage has noted that anyone who has this notion of marriage is undoubtedly a virgin.
January 11, 2010, 12:55 amscattergood says:
This of course is totally par for the course, a scientific fraud and misreprensentation of collossal proportions.
YOUR source specifically states that it is a summary from “A Separate Creation: The Search for the Biological Origins of Sexual Orientation”
So what is this book, well according to Amazon, the book is:
Also, this is an OUT OF PRINT book. Why? Well because since the 1990′s further studies have proven the LeVay study basically immaterial for the purposes of determinism. LeVay’s studies are heavily criticized and even he doesn’t purport to the idea that his study shows that there is a fully determinisic cause of engaging in homosexual behavior.
Please remember, that correlation is not causation. No matter how many times you say it is. Ice cream eating and drowings are highly correlated, but eating ice cream doesn’t lead one to drown. It is just hot in the summer when people eat ice cream more and when they swim more.
January 11, 2010, 1:01 amscattergood says:
This again is basically totally untrue. You can of course effect your height though physical activities or lack thereof. Heights increased significantly on average in Europe since the 1700′s because nutrition has become better.
Again, let’s not let a little thing like a fact get in the way….
January 11, 2010, 1:05 amRicardo says:
The latter is certainly true, is well-known to anyone familiar with the literature, and does not contradict anything I actually wrote as you can quite easily verify for yourself. Unless you are claiming that through physical activity or nutrition you can affect your height after the “mid– to late-teenage years” in which case you are wrong. The best evidence is that nutrition in the womb and the early childhood years is the most important. We know this by comparing heights of people born in famine years or in famine-stricken villages in poor countries to the heights of others who are otherwise comparable: famine around the time of birth leads to stunted height as an adult.
January 11, 2010, 1:19 amscattergood says:
This statement is patently false. Unless you think all 80 year olds are the same height they were when they were 18.
January 11, 2010, 1:23 amRicardo says:
Now you’re just being silly. Yes, serious diseases and/or degenerative conditions can reduce your height — I didn’t see the need to add such a qualification when it is not at all relevant to the actual topic. I notice you have no response to the rest of what I wrote or to the original point: that even a complex combination of genetics and environmental factors that scientists still do not fully yet understand can still lead to characteristics that are unchangeable by the individual in any meaningful sense. Note that there are few if any scientists who would argue that genetics play no role whatsoever in homosexuality: that appears to be refuted by twin studies. The weight of genetics versus any number of other factors still remains to be determined.
January 11, 2010, 1:36 amzuch says:
… if you equate the crapola that the AFA and the likes of Paul Cameron put out with “research”….
Assuming arguendo that this is true, seeing as such “marriages” are a relatively recent phenomenon, do you think that maybe this might bias the results a tad?
Regardless, why is this significant even if it were true (in your mind)?
Cheers,
January 11, 2010, 1:45 amzuch says:
This would run afoul of the First Amendment.
How about for being a liar, a doofus, a tool, a hypocrite, and a bigot? That’s the way I feel about her, and I’m not gay. I might change my mind if I saw the video … but I doubt it.
Huh? Who’s trying to redefine a religious term? Your church is free to use whatever definition it wants of a valid “marriage”. Why do you want to deny others that very same right?
Cheers,
January 11, 2010, 1:56 amzuch says:
They addressed that in a separate concurrent amendment.
Cheers,
January 11, 2010, 1:58 amzuch says:
I await with bated breath the coming rapture in May, 2011. Then we’ll finally have some peace and sanity down here.
Cheers,
January 11, 2010, 2:02 amRandy says:
Scattergood: Please respond. You deliberately misquoted the APA. The full is quote is this:
Many think that
nature and nurture both play complex roles;
most people experience little or no sense of
choice about their sexual orientation.
This completely contradicts your statement. Is the APA correct or isn’t it?
January 11, 2010, 2:07 amzuch says:
That argument worked in the aptly named Loving v. Virginia case. The Commonwealth of Virginia argued that blacks and whites were both equally prohibited from marrying someone of the other race, and they were perfectly free, each group, to marry whoever they wanted of the same race. What result?
Cheers,
January 11, 2010, 2:09 amzuch says:
Thank you.
Cheers,
January 11, 2010, 2:15 am1040 says:
is it the religious term that lets you file a joint tax return? if so, page the founders! who knew that the state counted on the church to tell it to whom it could or could not offer the joint tax filing privileges?
January 11, 2010, 2:40 am1040 says:
your sarcastic remark seems to indicate that bestiality is not a traditional value in texas. why would you assume that?
January 11, 2010, 2:41 amGaryC says:
About 4 years ago Jonathan Rauch was on the Michael Medved radio talk show discussing his new book about gay marriage.
One of his most effective comments was to recite the marriage vows and then asking, if I recall correctly, “What in those vows doesn’t apply to a gay couple?”
It lost its effect when I noticed that he had omitted the traditional phrase “forsaking all others” from the vows. I don’t know whether Rauch simply forgot that phrase, but subsequent reading I have noticed that many advocates for gay marriage regard an exclusive committed sexual relationship as an optional part of the marriage contract. But sexual fidelity and exclusivity has health benefits and family stability benefits that are part of the rationale for government support for marriage. Straight couple have affairs, but when they do so they are breaking their vows.
An “open marriage” is not the same relationship as a real marriage, whether the couple is straight or gay. To the extent that same sex marriage will increase the acceptability of infidelity, it does actually threaten the institution of marriage.
January 11, 2010, 4:32 amGaryC says:
Justice Story fought rather hard to convince the rest of the Supreme Court that we should have a federal common law. When he lost, his approach was much more constructive than most. He sat down and wrote the Federal Code, which Daniel Webster then pushed through Congress. There is a reason that Story is rated as one of the great Justices, usually behind only Chief Justice Marshall.
January 11, 2010, 4:39 amRicardo says:
I have no doubt that you can find same-sex marriage proponents who believe in or practice open marriage. Just as I can easily find proponents of “traditional marriage” who have not themselves been in long-term monogamous marriages and who are not currently raising traditional nuclear families. You haven’t provided any evidence that same-sex marriage will increase the acceptability of infidelity because there is not any.
January 11, 2010, 5:38 amVegasGuy says:
“We don’t know the cause of heterosexual orientation either…”
But heterosexual behavior is not biologically aberrant and does not require a “cause” or explanation. It is necessary for the survival of the species, nature’s “default position”. Homosexual behavior is not. It can include sex, but not procreation – a fundamental and defining difference.
And a similar situation exists in the area of child rearing. A homosexual “couple” cannot mirror a heterosexual couple in its parenting behavior, nor can it model the behavior of either heterosexual parent. Thus it *cannot* provide a normal functional context for child development however well-intended the homosexual pair might be. And please, spare me the tired “dysfunctional hetero couples” arguments. They apply equally to homo couples.
All of this tends, I believe, to make “same sex marriage” (and variants) an oxymoron. The term was introduced by homosexual activists to frame their argument favorably and should be avoided. “Pure” legal rights arguments I leave to the professional word merchants.
January 11, 2010, 8:35 amOren_ says:
My synagogue does not recognize marriages between jews and gentiles — I demand that the State confer on them only civil unions henceforth or else I will bitch and moan that my religious rights are being trampled.
You would be probably quite shocked to survey the literature on natural homosexuality, including a large number of cases where having a substantial percentage of your offspring homosexual leads to a very large increase in fitness.
No matter though, nature is probably biologically aberrant anyway.
January 11, 2010, 9:55 amtherut says:
I belive that SSM will with time become legal. I also think that another word will be developed to differentiate between the legal difinition and that of traditional opposite sex marriages to define the two as different. They are not the same so the traditional marriages will be forced to change their name. That is all good and fine. There even may be a movement for traditional marriages to forsake .gov sanction as having much meaning. The .gov sanction will become just paper work regulation and the traditional marriages will be sanctioned outside of .gov. most likely by religious institutions. Legal marriage will over time lose its meaning that the same sex couples hope to have. What this means for society as a whole I have no idea. But the two will never be accepted as the same thing in the long run. Cause they are not.
January 11, 2010, 10:04 amJon Rowe says:
It might help if you actually read the book or someone Burr’s articles. He uses the news of LeVay as a jumping off point; he doesn’t build his case on any of LeVay’s findings.
Strawman alert: Who is this “you” that you are referring to?
January 11, 2010, 10:50 amJon Rowe says:
No matter though, nature is probably biologically aberrant anyway.
Nature is, if anything, diverse.
January 11, 2010, 10:57 amProMarriage says:
Randy — Anyone who sincerely confuses the love between a man and a woman, and the love between two men is grossly immature.
January 11, 2010, 11:46 amChris Travers says:
Every couple I have known that was in an open long-term relationship (marriage or not) was heterosexual. Maybe my sample is unrepresentative, but unless you are advocating the criminalization of adultery, then I don’t see what the point is. If that is what you are advocating I don’t see why you would deny that same protection to gay couples that want to be in monogamous relationships too.
January 11, 2010, 11:52 amChris Travers says:
I would point out that federal common law can mean a few different things. For example, when we look at Constitutional cases, common law plays a relatively significant role. However, absent a few areas where Congress more or less asked the court to develop common law traditions (the Sherman act being a good example) we don’t see a lot of it. In those areas, however, we are talking about tort law only.
Interestingly 49 of the 50 states have state common law traditions.
Maybe Twirip is from Louisiana? If so he clearly does not live under a system of common law.
January 11, 2010, 11:59 amTwirip says:
Of course, something which is “pushed through Congress” is not common law.
To clarify terms here, I’m using “common law” in the sense of “law made by judges”. The English common law, and almost all of English “constitutional law”, was made by judges.
There were reasons why this was the case in England, incuding the fact that there was no “legislative branch” at all for long periods of that countries history. But none of those reasons apply to America. We have a wrtten Constitution and a clear process for amending it. There is no room in our system for judges to make constitutional law, and they did not do so until very recently.
Federalist 84.
This seems pretty obvious. The scheme of things created by the Founders was one in which the legislative branch was supreme.
All of the “Anglosphere” has common law traditions, just as it has Christian traditions. That is to say, it used to do certain things in the past. It does not follow that it should do them now, and I doubt that you’d argue for schools run by the Church just because that was once the way it was done.
You have reservations about the health-care bill, Chris. What would you say if the whole thing was enacted not by Congress but by the Supreme Court under the rubic of “common law”?
January 11, 2010, 12:52 pmLN says:
And how are you personally able to make this comparison?
January 11, 2010, 12:55 pmJon Rowe says:
There is no federal substantive common law after Erie V. Thompkins. But as noted, the Federal Courts operate using a “common law” method. If you look at all of the prophylactic rules of constitutional and statutory construction, there does seem a federal court “common law” of judge created rules. However, they aren’t supposed to — and they do not — create the rules out of whole clothe (as CL judges did). Rather, it’s always a way of “filling in gaps” of a broader constitutional or other legal text they are interpreting. That is, a “right” to same-sex marriage would not be judges making things up but rather “interpreting” the Equal Protection Clause or whatever.
January 11, 2010, 1:25 pmChris Travers says:
Louisiana has no state common law traditions. Instead, strangely, they look to the Napoleonic Code which was passed in France a few years after the Louisiana Purchase and to civil law traditions instead.
January 11, 2010, 1:40 pmChris Travers says:
The courts would, as a practical matter, no more be able to invent a right to health insurance than they would be able to recognize polygamous marriages.
I think a parallel includes the 9th Circuit’s holding that the city has a responsibility to provide suicide prevention training to police officers. Needless to say I think many think this is a silly decision which will not survive for long.
January 11, 2010, 1:46 pmRTA says:
Is that “equal protection” though? While an unmarried adult gay man has precisely the same marriage options as an unmarried adult straight man, legally speaking, a straight man and a straight woman have completely different options under the law; in fact there’s no overlap.
In the context of interracial marriage, that kind of pool-sorting was found to be unconstitutional. You can’t get around it by passing a law which says “everyone must marry a person of the same race,” and defend it on the ground that “it applies to everyone equally.”
Of course, standards of protection for sex are different than for race under equal protection. Or it might come up under a different theory, maybe substantive due process. But for EP I’d see it as an issue of sex discrimination, not sexual orientation.
January 11, 2010, 1:48 pmTwirip says:
I trust you understand the humour in those words, Chris. Twenty years ago you’d have said” “The courts, as a practical matter, are no more able to invent a right health to insurance than they are to recognize a right to gay marriage”.
As a practical matter, common law recognizes no limits on judical power. A great many fans of common law are fans only because they think the judges will make law which they like. But you’re not really a believer in common law if your support is based on those consequentialist grounds. And in the long run those grounds will prove to be made of quicksand anyway.
January 11, 2010, 3:15 pmTwirip says:
Obviously that is the pretext they would employ, yes. But the real-world difference is non-existent. The end result is that at time A the Constiution says one thing, and at A+1 the Constitution says something very different, and the only thing in between is a Court ruling.
How do you get from “Congress shall make no law .. abridging the freedom of speech” to the Courts upholding McCain-Feingold? You get there via “common law” in the shape of court rulings superseding the actual written Constitution.
January 11, 2010, 3:23 pmProMarriage says:
“Of course, standards of protection for sex are different than for race under equal protection.”
Precisely, that’s why it’s nonsense when the anti-marriage/pro-redefinition crowd brings up Loving vs. Virginia.
Sex (i.e. gender) is central to what the marriage relationship is, while skin color has nothing to do with marriage. There’s simply no comparison.
January 11, 2010, 3:23 pmJon Rowe says:
Twirip,
The way the Constitution was written using broad, textually indeterminate phrases, it’s impossible for the kind of “constitutional construction” that I described in my comment NOT to occur. I suggest reading Princeton’s Keith Whittington’s work on the matter.
The Constitution says “A” in a broad sense. And “A” may not be compatible with “B.” However “A” is compatible with A1, A2, A3 and so on.
If the Court held “There is no right to bear arms” we clearly are in “B” territory. But if the Court holds individuals have no necessary right to possess every weapon the US military does, we are probably in “A” territory.
I would agree with you that McCain Feingold is in “B” territory. However, to so conclude a Court would STILL have to engage in the constitutional construction I invoked and explain reasons why MCain’s distinction between “money” and “speech” are not satisfactory.
January 11, 2010, 3:36 pmJon Rowe says:
Of course there is a comparison. Since I’m using Rand’s “A is A” language. Everything is “sui generis.” A is A. Micegenation is not homosexuality. Homosexuality is not incest. Incest is not polygamy and so on.
However, legal arguments rely on reasoning by analogy. That means homosexual relations, by their nature, in an American legal sense, are comparable to interracial relations. And because gender distinctions have some degree of prohibition under Equal Protection analysis (along with racial distinctions) that makes for a relevant EPC inquiry. It should also be noted that number (polygamy) and consanguinity (incest) receive NO heightened EPC scrutiny under our system, making same sex marriages distinguishable from them.
January 11, 2010, 3:43 pmProMarriage says:
“That means homosexual relations, by their nature, in an American legal sense, are comparable to interracial relations.”
This is not true in any rational sense. By their nature, and certainly by the nature of the type of intimate human relationships at issue here, there is no comparison at all.
And there is certainly nothing whatsoever in the Constitution that compels the comparison.
January 11, 2010, 3:49 pmMichael Ejercito says:
Our society, as well as the federal judiciary, is much more tolerant of separate but equal when it comes to gender than when it comes to race. This is because that gender differences are fundamental, while racial differences are superficial.
The nine justices of the U.S. Supreme Court refused to consider the possibility that refusing to grant a marriage license to a same-sex couple violates the United States Constitution ( Baker v. Nelson ) Those same justices had ruled in favor of the Lovings in Loving v. Virginia .
I wonder if a better legal strategy would be to challenge Florida’s Amendment 2, which prohibits even a separate and equal institution for same-sex couples.
January 11, 2010, 3:56 pmJon Rowe says:
Promarriage;
Then nothing is comparable to anything and you live in a different world that has nothing to do with the American legal system.
January 11, 2010, 4:04 pmMichael Ejercito says:
It is worthless because of federal law.
Same-sex couples who are “married” are also finding out that their marriages are worthless as far as federal legal benefits are concerned.
George Reynolds took it up in court.
He lost.
We already have Baker v. Nelson .
January 11, 2010, 4:07 pmRandy says:
Promarriage: “Randy — Anyone who sincerely confuses the love between a man and a woman, and the love between two men is grossly immature.”
Then please enlighten me. How is my love for my boyfriend different from your love? Are you really saying two gay men cannot fall in love? And you know this from your experiences with knowing gay men – or lesbians? Please be specific.
Twirip: Please — we are still waiting for all that obvious information from the left that SSM is merely a plot to destroy marriage. You said the that left is very forthcoming, and we are waiting with baited breath the information that you alone possess.
Therut:” Legal marriage will over time lose its meaning that the same sex couples hope to have. What this means for society as a whole I have no idea. But the two will never be accepted as the same thing in the long run. Cause they are not”
Okay, so Massachusetts has had SSM for about eight years. The Netherlands since 2001. Please show us any evidence at all that these jurisdiction, or any other place where SSM is legal, like Canada, Vermont, Spain, or Sweden, for instance, where legal marriage is even beginning to lose it’s meaning. Any movement afoot in these places to come up with an alternative term? Any effect on society whatsoever?
At some point, all your dire predictions either have to come true, or you have to give them up. How long do we have to wait until they do? 20 years? 50 years? Can you point to ANY ill effects in any place that has allowed SSM? Or are we just going to hear you moan and groan about this forever, never able to actually identify what exactly is wrong with SSM, other than your gut feeling that somehow it’s bad?
January 11, 2010, 4:47 pmRandy says:
Promarriage: ” while skin color has nothing to do with marriage.”
And yet, skin color prevented people from marrying for many years in the US. And courts upheld those laws many times. Why would they do that if it’s so obvious that skin color shouldn’t prevent two people from marrying?
January 11, 2010, 4:51 pmChris Travers says:
Hi Twirip:
Actually, by that I meant something a little different.
Basically “same-sex marriage” is a matter whereby the same benefits involved in heterosexual marriage are merely applied also to same-sex couples who want to register for them according to the same process. Structurally, there are no deep differences between the legal questions that can occur in a same-sex marriage and those of a heterosexual marriage. At least today, there are no great questions that courts would have to weigh into in order to state that same-sex couples have the right to the same protections that opposite-sex couples do.
Now, polygamous marriages are a whole different issue and raise all manner of thorny legal problems which polygamous families in the US resolve by individually thinking this through and engaging in complex contracts. Creating such a recognition in common law practices has a number of fundamental problems associated with it that same-sex marriage simply can’t have. (As a policy-matter I am not opposed to recognizing polygamous marriages, but there is absolutely no way I think a court would weigh into this and for very sound reasons.)
For example, consider the following hypotheticals involving a man married to three women:
1) Does this mean that all of his wives have equal power of attorney? Suppose he only married two? What happens when they disagree about medical care and he is in a coma, etc? Can the law require an odd-number of spouses?
2) Suppose the man dies. Are the wives now married to eachother?
3) Suppose we assume yes to #2. Now suppose one of the wives is in the hospital, and the rest of the family is making medical choices on her behalf. Do we limit it to her husband? Or do the other wives have a say in it too? It would seem to follow but what do you do about the possibility of jealousy and the temptation to disadvantage a rival?
4) Given the structural differences between a marriage of two and a marriage of three, would recognizing a right to legal status of plural marriage provide any ability to know, ex ante, what the legal rights and responsibilities of such a marriage would entail?
These sorts of problems have no analogy in same-sex marriage as an issue and they fundamentally ensure that a judge is unable to provide for a proper contract involving plural marriage unless the legislature addresses these structural matters beforehand.
January 11, 2010, 5:13 pmProMarriage says:
“And courts upheld those laws many times.”
Courts sometimes do things they shouldn’t. They are run by lawyers after all. Did you have a point?
January 11, 2010, 5:17 pmMichael Ejercito says:
It was to enforce white supremacy.
Anti-miscegnation laws are an aberration. By contrast, human societies have independently defined marriage as between men and women.
At the time of the ratification of the Fourteenth Amendment, the idea that there was a right to same-sex “marriage” did not even exist.
Finally, see Reynolds v. the United States and Minor v. Happersett to find out how the Fourteenth Amendment applies to sexuality and marriage.
January 11, 2010, 5:19 pmRandy says:
Still waiting for you to enlighten me on how my love for my boyfriend is different from the love of a man and a woman, Promarriage. Also waiting for your explanation on how interracial marriage was banned for so long when skin color has nothing to do with marriage.
I realize that Ted Olsen has changed his position on SSM, and now he’s in favor it. I think the conservative crowd must be having an “Invasion of the Body Snatchers” moment. Here, Olsen was one of the leading lights of the conservative movement, and opposed to SSM. Today, suddenly, like a pod, he’s changed — he’s all in favor of gays getting married! What happened? What evil potion did he drink? Did a gay man ‘recruit’ him in a bathroom stall? Worse, he hasn’t pointed to a close relative, a la Cheney, that could explain his conversion.
I’m sure this is all very troubling. If Olsen can come around, what about Scalia? Thomas? Maggie Gallagher? Ted Haggard? (Oh, that’s right — he *already* went to the dark side). No one is safe from the pods. My advice to those who oppose SSM: trust no one, not even your closest of kin or your most vocal ministers. All are fair game and any one of them might suddenly turn their back on family values. Or worse.
Here’s a clue: Go up so someone and say, “clang, clang, clang.” If he bursts into song, he’s a goner.
January 11, 2010, 5:27 pmProMarriage says:
“Then nothing is comparable to anything…”
Really? If X is not comparable to Y then NO two things are comparable? What a completely nonsensical assertion.
January 11, 2010, 5:32 pmJon Rowe says:
Every two things that are not identical have differences. Everything can be compared and distinguished. Homosexuality can be compared to miscegenation.
I just did it. See.
January 11, 2010, 5:35 pmRandy says:
Michael: “It was to enforce white supremacy.”
And white supremacy is based on — guess what? — skin color.
So you are saying that Promarriage is wrong? That these laws had nothing to do with skin color, and everything to do with promoting white supremacy? If so, your beef is with him, not me. If you are saying that he is right, that white supremacy is based on skin color, then why did the trial judge say in his opinion that if God wanted whites to marry blacks he wouldn’t have put them on separate continents?
Actually, ancient Rome recognized marriage between men in aristocratic circles. Emperor Hadrian married Antinous, a teenaged man and the ceremony lasted three days.
Miscenignation laws lasted for well over a century in many parts of the country. That’s not an ‘aberration’ — that’s a well established legal and cultural phenomenon.
Additionally, marriage had been restricted over the centuries in many ways. Many cultures allow only arranged marriages, even today. Polygamous marriages were traditional for thousands of years, and existed even fairly recently in some middle eastern countries and smaller societies. Marriage as we know it didn’t really exist for people without property, the vast majority, throughout the middle ages. Marrying for love is an invention that only took root in the 20th century. There used to be laws against marrying women past menopause, or those of a different religion at varying times in varying jurisdictions.
In short, the entire concept of marriage has changed radically over thousands of years, and even in the last century. It has survived, and it will certainly survive gays getting married. If you have any evidence to the contrary, please bring it forth.
January 11, 2010, 5:37 pmProMarriage says:
Randy, you first, since you made the initial assertion about “gross immaturity”. I merely echoed what you said, with a slight modification.
“Also waiting for your explanation on how interracial marriage was banned for so long when skin color has nothing to do with marriage.”
I already answered that. The fact a court concluded something doesn’t by definition make their conclusion correct.
January 11, 2010, 5:37 pmProMarriage says:
“Everything can be compared and distinguished”
Then you’re using the term in a different sense than I’ve been using it. When I say they aren’t comparable, I meant that they aren’t similar. Of course one can always compare any two things and conclude they’re not similar at all.
The role played by race in intimate inter-personal relationships is in no way similar to the role played by gender in intimate inter-personal relationships.
January 11, 2010, 5:46 pmDanSeattle says:
Michael Ejercito:
Wow, that’s a dangerous game to be playing. Marriage has been incredibly variable across human society: some places have had marriages planned before the bride was born. Many places have had polygamy or polygyny, or both. In many cultures, a marriage which did not result in offspring wasn’t legitimate. The Shiite Nikah al-Mut‘ah allows temporary fixed-duration marriages.
The Nuer of Sudan have long allowed barren women to marry other women who bring their own children into it (which in turn means legitimized adultery). In a number of other countries, SSM is legal.
It seems to me that marriage is a social construction built by the cultures that choose it. I have trouble believing that anti-miscegnation laws were more aberrant than anything else that humanity has done in its service.
January 11, 2010, 5:46 pmRandy says:
GaryC: ” To the extent that same sex marriage will increase the acceptability of infidelity, it does actually threaten the institution of marriage.”
You want to know what really threatens marriage? Preventing gays from marrying, that’s what.
Young people aren’t stupid. They people like us, living with our boyfriends, going to work, caring for each other, renovating old houses in the cute parts of town. We have cats or dogs, and many of us children that we are raising. They see the kids turn out fine. We act like a real family because we ARE a real family. The only problem is that we aren’t married.
So young people see people like us living perfectly normal lives, and they say, see, you don’t *need* to get married to have a real family. Gays can do it, so why can’t we? So inadvertantly, by opposing SSM, you are making us poster children for why marriage isn’t needed. Sure it’s harder, we don’t get any of the benefits of marriage. But those really aren’t the big issues — we live our lives regardless of whether that disturbs you or not. (And clearly, it disturbs people like Promarriage and Alfred).
And like or not, gays are often trendsetters.
If you truly were concerned about marriage, you would insist that we get married. We have fabulous ceremonies and we know how to do it right. You would think that you would encourage that sort of thing. If you really want to destroy marriage, then insist that we continue as poster children for why marriage really isn’t necessary for a good life or a real family.
I keep hammering away — please show me any evidence on how my getting married harms your marriage in any way, or has shown any destructive patterns in places where it currently exists. The answer always always always is silence. After all these years of SSM, you can’t point to a single instance or trend that marriage is being destroyed or changed for the worse.
And again, young people aren’t stupid. They admit what you refuse to — that SSM doesn’t harm anyone or anything. This is why your continued dire predictions will always be laughed at by them.
January 11, 2010, 5:48 pmProMarriage says:
Randy — “So you are saying that Promarriage is wrong? That these laws had nothing to do with skin color…”
I did not say nor imply that the laws had nothing to do with skin color. Are you really that obtuse or are you being dishonest?
January 11, 2010, 5:50 pmProMarriage says:
Dan Seattle, “Marriage has been incredibly variable across human society…”
It has been male-female across place, time and culture.
January 11, 2010, 5:51 pmProMarriage says:
“please show me any evidence…”
OK
January 11, 2010, 5:55 pmJon Rowe says:
Same sex inter-personal relationships have all of the benefits of inter-racial interpersonal relationships except, perhaps the ability to procreate (when the interracial couple consists of a fertile male and female).
Further, both race and gender and constitutionally protected categories. I just compared and noted similarities, refuting your “in no way similar” canard.
Those who wanted to outlaw interracial marriages did so because they DIDN’T want the relationship to procreate. Those who refuse to recognize same sex marriages do so because same gender relationships cannot procreate.
In other words, you are damned if you do, damned if you don’t.
January 11, 2010, 5:58 pmRickA says:
I do not understand the argument that the California definition of marriage as the union of a man and woman arguably violates the equal protection clause.
Under the California definition a man can marry any woman, and a woman can marry any man (ignoring children and family members for purposes of this argument). This does not seem to violate equal protection, as Loving v. Virginia did. The law that Loving held unconstitutional did not permit a man to marry any woman – but only permitted marriage between a man and a woman of the same race. Pre Loving – a black man could not marry any woman, but only a black woman. Pre Loving – a white woman could not marry any man, but only a white man. This was held to violate equal protection – and it is easy to see why. People were treated differently based on race – a black man could not marry any woman, and in particular could not marry a white woman.
Under the California definition – a gay man can marry any woman, just like a straight man – and therefore all men are being treated equally under the law. Similarly, a lesbian woman can marry any man, just like a straight woman – and therefore all women are being treated equally under the law. Any woman can marry any man, and visa versa.
Under California law a gay man can enter a civil union with another gay man – but by definition it cannot be called a marriage – which is reserved to the union of a man with a woman.
How does this violate equal protection?
Could a state simply eliminate marriage and replace it with civil union:
a) calling it XY if the civil union was between a man and a woman;
b) calling it XX if the civil union was between a woman and a woman, or
c) calling it YY if the civil union was between a man and a man.
January 11, 2010, 6:02 pmJon Rowe says:
Rick,
Gender is also an equal protection category. Replace every time you use “race” with gender and then you vet same sex marriage. You may reply race and gender are not the same thing. But, they are BOTH CONSTITUTIONALLY PROTECTED CATEGORIES.
Likewise the idea that any gay man can marry a women is like saying rich and poor people are equally forbidden from sleeping under bridges. A gay man or woman, as it stands, doesn’t have the ability (except in those states that recognize same sex marriages) to marry ANY person whom s/he loves.
January 11, 2010, 6:10 pmProMarriage says:
I said, “The role played by race in intimate inter-personal relationships is in no way similar to the role played by gender in intimate inter-personal relationships.”
Jon Rowe said, “Same sex inter-personal relationships have all of the benefits of inter-racial interpersonal relationships except, perhaps the ability to procreate (when the interracial couple consists of a fertile male and female).”
His statement has nothing to do with mine, concerning the role either gender or race play within intimate relationships.
Gender is central to sexual relationships, whether same-sex or opposite sex. Ask anyone you know, gay or straight: How much does the race of your significant other (or potential significant other) matter to you? How much does the gender of your significant other (or potential significant other) matter to you? There is no comparison (similarity) between the role played by race and the role played by gender within an intimate human relationship. None.
January 11, 2010, 6:15 pmProMarriage says:
A straight man or woman, as it stands, doesn’t have the ability to marry ANY person whom s/he loves.
January 11, 2010, 6:16 pmJon Rowe says:
“Any” meant “ONE.” A straight person has the ability to marry ONE person whom s/he loves. A gay person does not.
January 11, 2010, 6:18 pmptt says:
Perhaps that is because you do not see men and women as equals.
A may marry any B. B may marry any A. But if A is equal to B, why can’t B marry any B?
If I am a citizen of the U.S. with the same rights as all other citizens, I have the same rights as any other man and the same rights as any woman.
January 11, 2010, 6:22 pmJon Rowe says:
Just repeating it doesn’t make it true.
“His statement has nothing to do with mine, concerning the role either gender or race play within intimate relationships.”
My statement is as valid an analogy as any. All analogies have differences. You are failing to note the meaningfulness in them.
“Gender is central to sexual relationships, whether same-sex or opposite sex. Ask anyone you know, gay or straight: How much does the race of your significant other (or potential significant other) matter to you? How much does the gender of your significant other (or potential significant other) matter to you?”
LOL. Yes to gay guy X, the fact that his partner is a male does OBVIOUSLY matter. However, the race often matters as well in the sense that you love the person because they are who they are. White guy A married to black woman B loves her blackness because it is part of her person. Hence race matters just like gender does.
January 11, 2010, 6:22 pmMichael Ejercito says:
Loving was not about marrying the one you love; it was about the applicability of racial restrictions on marriage laws.
When Minnesota’s Supreme Court ruling in Baker v. Nelson went under mandatory appellate review by the U.S. Supreme Court, the Court dismissed it for want of a substantial federal question. The very same justices that decided Loving refused to consider the possibility that the Baker ruling was in error.
January 11, 2010, 6:23 pmptt says:
Are you suggesting there’s no such thing as a racist bisexual?
January 11, 2010, 6:24 pmRickA says:
Jon Rowe.
I understand that gender is a protected class.
But this definition is gender neutral.
A law saying any person can marry any person they love – except a woman can only marry a man, but a man can marry any person they love – would not be gender neutral and would violate equal protection.
This law treats every person equally – and therefore does not violate equal protection, in my opinion.
This is no different than a law saying only XY persons can use a men’s restroom.
To my knowledge – this has not been held to violate equal protection yet.
January 11, 2010, 6:27 pmJon Rowe says:
“Loving was not about marrying the one you love; it was about the applicability of racial restrictions on marriage laws.”
Loving also dealt with the fundamental right to marriage.
And a new Court sits in session. Tell it to them.
January 11, 2010, 6:29 pmRickA says:
Jon Rowe:
If I am straight – but love both a gay person of the same sex and a straight person of the opposite sex – I can only marry the straight person of the opposite sex. Therefore, I cannot marry anybody I love.
January 11, 2010, 6:30 pmJon Rowe says:
Rick,
Then you’d be bisexual.
January 11, 2010, 6:34 pmJon Rowe says:
If you substitute “race” for “gender” you sound exactly like Lyman Trumbull — of the key Framers of the 14th Amendment — defending the ban on miscegenation on equal protection grounds:
“If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either.”
See the following for the quote.
January 11, 2010, 6:37 pmptt says:
Uh… no. Your situation — under the rather odd hypothetical — would be that you couldn’t marry everybody you love.
January 11, 2010, 6:38 pmMichael Ejercito says:
I would like an explanation for this.
In Minor v. Happersett , the United States Supreme Court rejected a Fourteenth Amendment challenge against a law that prohibited women from voting, while men were permitted to vote. It took the Nineteenth Amendment to prohibit denial of suffrage on the basis of sex.
Why is the Fourteenth Amendment insufficient to overturn laws denying suffrage on the basis of sex, but sufficient to overturn laws to deny marriage on the basis of sex?
January 11, 2010, 6:38 pmProMarriage says:
ptt — “But if A is equal to B…”
A doesn’t equal B
Jon — “White guy A married to black woman B loves her blackness because it is part of her person. Hence race matters just like gender does.”
What gibberish.
On a scale of 1 to 10, how important to you is the race of your mate (or potential mate)? On a scale of 1 to 10, how important to you is the gender of your mate (or potential mate)? I’ve been around a while, and I’ve never met, nor heard of, anyone for whom there’s any similarity.
For almost all humans, gender is of critical importance in their relationships. They may have varying degrees of preferences with regard to skin color, eye color, height, etc. But gender is clearly and essentially universally in a different category.
January 11, 2010, 6:39 pmProMarriage says:
“If you substitute “race” for “gender”…” then you are being foolish.
Do you react to to the sight of a mens restroom in a public building the same way you would react to the sight of a “whites” restroom?
January 11, 2010, 6:45 pmAlan says:
Wrong. It wasn’t concurrent. The amendments were ratified two years apart.
In any event, even if you were right–which you’re not–the fact that the Fifteenth Amendment did give blacks the right to vote pretty clearly implies that the Fourteenth Amendment didn’t. Otherwise the Fifteenth would be superfluous.
Cheers.
January 11, 2010, 6:49 pmptt says:
Ah… not only can you not conceive of the possibility of a racist bisexual, you don’t seem to concede the existence of bisexuals at all.
January 11, 2010, 6:49 pmProMarriage says:
ptt — no, “essentially universal” doesn’t preclude the existence of a few statistical outliers.
January 11, 2010, 6:52 pmAlan says:
Wrong again. The law in Loving didn’t categorically prohibit interracial marriages. It specifically prohibited marriages between whites and nonwhites, with an exception not relevant to your point.
January 11, 2010, 6:53 pmJon Rowe says:
Rick,
I understand the public restrooms analogy. Race and gender are both civil rights categories; but higher levels of scrutiny apply to racial as opposed to gender categories.
My employment law professor, Marina Angel, a very committed feminist, if I remember right was against gender segregated bathrooms on civil rights grounds.
A big difference between the two is gender segregated bathrooms may be necessary to protect the privacy of the overwhelming majority of those who want to use public restrooms — of BOTH GENDERS. Though I’m willing to listen to the arguments of why men need to get into the ladies room and vice versa.
Recognizing same sex marriage on the other hand, doesn’t adversely affect anyone’s rights or privacy.
January 11, 2010, 6:56 pmAlan says:
I quote from Amendment 14, Section 2:
“But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
“Male” appears three times. The Amendment is clearly saying it doesn’t give a fig if women are denied suffrage. The Nineteenth Amendment eventually did give women the right to vote (and no other rights). But the Fourteenth didn’t. So what rights did the Fourteenth Amendment give women, if not something so important as the right to vote?
This argument tends to be ignored because there’s no answer to it. Plainly, if one pays any attention at all to the text of the Fourteenth Amendment, there’s no way to read principles of gender equality into the Amendment. Gender-classification jurisprudence is a prime example of–to steal Lino Graglia’s phrase–”constitutional law without the Constitution.”
January 11, 2010, 7:01 pmJon Rowe says:
Because A is A and everything can be distinguished from everything else.
You need to get out more. There are plenty of folks who date exclusively inside or outside of their race.
Again — so what? What is a “non-sequitur” on your part is your raising issue of the importance an individual attaches to the gender of their perspective mate — whether a straight who desires someone of the opposite sex or a gay who desires someone of the same sex — as a rationale for EXCLUDING gays from marriage.
That’s like saying “Robert Deniro likes to date only black women, therefore…” what? Therefore anything.
January 11, 2010, 7:03 pmMichael Ejercito says:
Minor v. Happersett
January 11, 2010, 7:06 pmDanSeattle says:
Promarriage: You wrote “It has been male-female across place, time and culture.”
Well, not really. “Today” is a time, so you clearly don’t mean Canada and the Netherlands, etc. But excluding that,
So, not so much with the constant.
On the other hand, anti-miscegnation laws are a constant. The Jewish Bible manages to work in a couple of discussions about how very bad marrying out is every book or so. I know that there are traditional Islamic, Christian, and Chinese equivalents.
We know not turn to “natural law” as an argument here: nature has come up with far too many variations of critters mating, hanging out with each other, and everything else. I think it’s also a poor idea to base ourselves on “throughout human history,” as it is clear that human culture has worked out a great many different ways of thinking about “marriage” and “formalized relationships” and lots of things in the middle.
It’s probably safest to stick with reasons why Loving vs Virginia was wrongly decided.
January 11, 2010, 7:07 pmAlan says:
Is that your entire answer to my argument?
January 11, 2010, 7:08 pmMichael Ejercito says:
Current court precedent gives more leeway to gender discrimination than racial discrimination. Note that men, but not women, are required to register for a possible draft.
January 11, 2010, 7:09 pmJon Rowe says:
Alan,
And according to Lino Graglia’s understanding of the Constitution not just Loving, but Brown v. Bd. was wrongly decided. Therefore, when the entire Loving spectre comes up, a simple answer for your side would be “Loving was wrongly decided so any ‘right to SS-M’ based on it would extend an unconstitutional line of cases.”
January 11, 2010, 7:12 pmAlan says:
I’m not seeing any answer to the point I made. What a surprise. The idea that “equal protection” could mean something so limited as “equal protection” is so horrific it cannot be accepted. Likewise unacceptable, albeit undeniable, are the implications of the plain fact that the Fourteenth Amendment didn’t give blacks the right to vote.
Brown is equally suspect whether you read the Constitution in the light of original intent or in the light of the document’s language read in complete isolation from the historical context. There’s a reason even Learned Hand, Oliver Wendell Holmes, Louis Brandeis, and Harlan Stone thought segregation permissible under the Constitution. The reason ain’t that they were all racist.
January 11, 2010, 7:16 pmProMarriage says:
You need to learn to read. I didn’t say, nor imply, that people don’t date exclusively within the same race or have strong preferences for a certain skin color, or hair color, or body type, etc. I said those things are not critical to most people anything like the way gender is.
Another reading comprehension problem on your part. At issue is the bogus attempted analogy to Loving, since there’s no analogy between race and gender when it comes to intimate relationships.
January 11, 2010, 7:16 pmJon Rowe says:
That’s true but if you combine the prohibition on gender discrimination in EPC caselaw (intermediate scrutiny) with the fundamental right to marriage, arguably you get something of higher scrutiny that brings us into strict scrutiny akin to racial discriminatory government classifications.
January 11, 2010, 7:17 pmJon Rowe says:
A distinction without a difference. The fact that you may value the gender more than hair color of your mate has nothing to do with excluding gays from marriage.
January 11, 2010, 7:19 pmJon Rowe says:
Only in the world where you get to create the rules of law and logic, which you don’t.
January 11, 2010, 7:20 pmRandy says:
Promarriage: “Randy, you first, since you made the initial assertion about “gross immaturity”. I merely echoed what you said, with a slight modification.”
Nope you didn’t. I said that the love between siblings is a different love than that between two adults who want to commit to each other. You know the difference, and so do I, so please don’t attempt to be cute about it.
The love that two gay men, or two lesbians, have for each other is the same sort of love that can and does exist between two opposite sex straight people. Again, you know that that’s true, but you would prefer to play games and pretend that it isn’t. But if you truly believe that, then I am merely asking for an explanation of why you believe it and any evidence to support it. If you still refuse, then I can only surmise that you have no evidence and just wish to demean gay people’s ability to love.
January 11, 2010, 7:21 pmJon Rowe says:
Alan,
Fine. You remain unanswered. The Loving invocation that pro-SSM folks make is bogus if Loving were wrongly decided because that would be to compound an error.
January 11, 2010, 7:24 pmProMarriage says:
For you, gender may be a preference, like hair color. For the vast majority of normal humans, it is a critical difference.
I think you understand the difference perfectly well, you’re just refusing to be honest about it.
January 11, 2010, 7:28 pmAlan says:
Another impressively lazy nonresponse.
I find it fascinating that you seem to have no problem whatsoever expanding a line of cases that’s not even arguably grounded in constitutional text. What a shame that that leaves no grounds whatsoever for criticizing any decision that you dislike. You can’t honestly complain about judges twisting the Constitution, because you’ve conceded that power to them by supporting these decisions that reach pleasing results in the teeth of the constitutional language.
January 11, 2010, 7:28 pmJon Rowe says:
I understand I refuted you on logical grounds. You refuse to give up on your non-sequitur.
Therefore what? Therefore gays should be excluded from marriage? It does not follow.
January 11, 2010, 7:32 pmProMarriage says:
In other words, you refuse to back up your own assertion, while demanding a different standard of others.
January 11, 2010, 7:34 pmProMarriage says:
“I understand I refuted you on logical grounds.”
You refuted nothing. Just saying you did doesn’t make it so. But as I said, I think you understand the unique role that gender plays in intimate human relationships. You’re simply refusing to be honest about it.
“Therefore what?”
Therefore Loving has no bearing on the discussion of same-sex marriage. Please try to keep up.
January 11, 2010, 7:40 pmJon Rowe says:
Ha. I used that line against you first.
I understand that, premise granted, it does not follow that gays should be excluded from marrying the person they love.
You wish.
And we will continue to make the analogy because it is relevant.
January 11, 2010, 7:53 pmMichael Ejercito says:
How so?
Even if same-sex couples are entitled to equal legal benefits, states may very well still be free to classify same-sex unions under a name aside from marriage.
Differences between genders are fundamental.
A reasonable legal argument can be made that same-sex couples should be entitled to the same substantive benefits as married couples, and the state is free to classify same-sex union under a different name due to fundamental differences in gender.
January 11, 2010, 7:54 pmRandy says:
Promarriage: “n other words, you refuse to back up your own assertion, while demanding a different standard of others.”
seriously? You mean I need to back up my assertion that sibling love is different from romantic love? Okay —
Sibling love is that between brother and sister or between brothers or sisters. They grow up loving each other and wish the best for each other. They may or may not wish to remain very close to each other, in terms of living in the same house for the rest of their lives, but probably do not. They do not have an interest expressing their love sexually.
Romantic love is the love between two people who wish the best for each other. They generally wish to remain very close to each other, not only sharing a house but also a bed. They love each other in a way that to express that love sexually.
That’s my take on it. Perhaps you have a different take — if so, please enlighten me.
So now again: I’m asking one more time. Please explain how the gays are not able to love each other as straights do. You made the statement, and I’m asking for you to back it up. If you can’t, then just admit that you were wrong.
January 11, 2010, 7:58 pmMichael Ejercito says:
Randy, there are fundamental differences in gender.
January 11, 2010, 8:00 pmMichael Ejercito says:
States may want to nominally classify married couples and same-sex couples differently for the purpose of tracking internal demographics. That is a pretty rational basis if one ever existed for anything.
January 11, 2010, 8:02 pmProMarriage says:
“I understand I refuted you on logical grounds.”?
OR
“I understand that, premise granted…”?
“And we will continue to make the analogy because it is relevant.”
Even though you granted the premise that gender is unique, you will still argue that it is not unique. OK.
January 11, 2010, 8:06 pmJon Rowe says:
You might have a point if I personally touched the issue of whether gender is unique and waffled. I didn’t. You need to put words in my mouth to attack a strawman.
What I noted was, even conceding the premise that it gender is “unique,” it still doesn’t follow that we should exclude gays from marriage.
January 11, 2010, 8:09 pmbadlaw says:
Alan, you can’t see me, but I’m giving you a standing ovation for this post. Excellent. I thought I was the only one who noticed this.
January 11, 2010, 8:26 pmPromarriage says:
Citing a few rare exceptions hardly disproves the rule.
January 11, 2010, 8:40 pmProMarriage says:
But you did.
January 11, 2010, 8:44 pmProMarriage says:
But that was not the point I was making. I said Loving isn’t relevant because race and gender aren’t analogous. It is possible to put up separate arguments in the same thread. I’m sorry this concept baffles you.
On a separate note, the issue is not whether to “exclude” gays from marriage, the issue is whether to redefine the institution of marriage.
January 11, 2010, 8:54 pmJon Rowe says:
No I didn’t.
January 11, 2010, 9:08 pmJon Rowe says:
Race and gender are analogous as they are both protected categories under the Equal Protection Clause. They are not duplicates.
What baffles you is the difference between a duplicate and an analogy. The entire legal system we have is based on reasoning by analogy, that is reasoning from A to B, i.e., from race to gender, both protected under the 14th Amendment.
If it were so “obvious” that you can’t make an analogy from race to gender (which you can because you don’t get make up the rules of law and logic) then Ted Olson, a more distinguished legal mind than you would never have written:
January 11, 2010, 9:18 pmRandy says:
Michael: “Randy, there are fundamental differences in gender”
Then what are they? What exactly are the fundamental differences that prevent me from loving my boyfriend as you love your girlfriend/wife?
I am assuming that Promarriage gave up and cannot articulate this. I’ll let you take a shot at then.
Please be specific — tell me why how I love less than you do.
January 11, 2010, 9:22 pmProMarriage says:
So by definition an assertion is logical if Ted Olson says it? That’s some argument! *LOL*
January 11, 2010, 9:48 pmbadlaw says:
Nobody mentioned love. They said there are fundamental differences in gender. For the purposes of this debate, the relevant difference is you and your boyfriend wont ever create a child within your relationship, thus the state doesn’t have much use for your relationship. If the definition of marriage overbroadly restricted your ability to be in a relationship with your boyfriend (by restricting cohabitation, processions, etc), you might have a legitimate grievance. But since you want to be considered the same as heterosexual couples where you’re obviously not with regards to a fairly core aspect of marriage (or rather, why the state has any interest in it), the fact that you love your boyfriend like a heterosexual person would love a spouse means nothing.
But who am I kidding? You’ll never accept that answer. You’re only asking because you know you’re just going to give some glib, dismissive remark (like you always do) and act as if your question hasn’t been answered. Or, you’ll just make some catty comment about people being homophobes but not wanting to admit it. There will perhaps be an exclamation point or two involved. You may even hit us with a smilie. Who knows. But it sure as hell wont be a cogent, or even interesting, remark.
January 11, 2010, 9:50 pmProMarriage says:
Who said the differences prevent anything? Why do you insist on making up things no one said?
You think men and women are identical aside from the obvious anatomical differences?
January 11, 2010, 9:53 pmRicardo says:
What would a non-fundamental difference in gender be?
More seriously, people have at various places and times said that fundamental differences in social status, ethnicity, race or tribe inhibit the ability to love or have a healthy marriage. Yet in all of these cases as well as in the case of homosexual relationships, we see there are indeed examples of people in healthy, long-term relationships who have been able to set aside these perceived obstacles.
January 11, 2010, 9:53 pmJon Rowe says:
Promarriage,
Why yes in law, arguments by authority are not fallacious and Ted Olson is about as authoritative a legal thinker as it gets.
January 11, 2010, 9:58 pmProMarriage says:
Thanks for the laughs, Jon.
January 11, 2010, 10:01 pmptt says:
You might want to review the thread before making such an assertion.
January 11, 2010, 10:02 pmProMarriage says:
ptt — Randy brought that up, not me. You might want to review the thread…
January 11, 2010, 10:06 pmRandy says:
Promarriage: “Who said the differences prevent anything? Why do you insist on making up things no one said? ”
Here is what you said: “Promarriage: “Randy — Anyone who sincerely confuses the love between a man and a woman, and the love between two men is grossly immature.”
Perhaps I misunderstood you. Please explain what you meant by it. I don’t believe this this is true, but you do. So I’m asking one more time: What evidence do you have to prove it true?
“You think men and women are identical aside from the obvious anatomical differences?”
Men and women are similar and they are different. For me, my attractions are only towards men, not women. Just as for you, you might be attracted only to blondes but not redheads, but Michael might be the reversed. Is there is gender difference between blonde women and redhead women? No, of course not. But it doesn’t matter — it’s not an issue.
I have fallen in love with only men, and the quality of that love is every bit as deep and qualitative as anything I’ve seen between straight people. If you think that I, as a gay man, isn’t even capable of loving to the same degree as you, then you need to explain why you think that.
January 11, 2010, 10:20 pmptt says:
I’m perfectly able to follow the thread and made no comment as to who brought up the topic.
Badlaw asserted that “nobody mentioned love”. You clearly did.
January 11, 2010, 10:20 pmptt says:
I think ProMarriage should interview some of those “outlier” bisexuals before opining on the quality of heterosexual vis-a-vis homosexual love.
January 11, 2010, 10:22 pmyankee says:
No. I personally think the extent to which the non-anatomical differences are biologically innate is usually exaggerated but significant, biologically innate, and non-anatomical/physical biological differences certainly exist, at least at the statistical level. I am highly dubious about the existence of “fundamental” (by which I mean both near-universal and important) innate non-physical differences, but concede their possibility.
But either way, what specific non-anatomical differences do you contend are “fundamental,” and in what way does the existence of those differences justify banning gays from marrying? The second part is the harder one, in my view.
January 11, 2010, 10:45 pmMichael Ejercito says:
Read dating web sites if you want to know the fundamental differences between men and women.
The justices of the Minnesota Supreme Court stated this:
January 11, 2010, 10:49 pmAlan says:
Thank you for your very kind words.
The brilliant Lydia McGrew is the only other person I’ve ever seen make anything similar to the point I made that “equal protection” does not mean “equal treatment”–although I must caution that I don’t mean to suggest that she endorses any of the other views I’ve expressed, here or elsewhere. http://www.whatswrongwiththeworld.net/2007/05/a_rad_idea_about_14th_amendmen.html
It frustrates me enormously that so little attention is paid to the actual text of the constitutional provision that the courts are supposed to be interpreting (as distinguished from rewriting). I don’t understand how people can have passionate opinions about what the Equal Protection Clause means when their opinions are so clearly divorced from the text of the Clause.
January 11, 2010, 10:50 pmyankee says:
And these differences, whatever they are, justify banning gays from marrying how?
January 11, 2010, 10:58 pmchiMaxx says:
Yes, in fact, it does, If there are exceptions, plural, across time and geography–from Hadrian to the Nuer to the Bugis of Indonesia to numerous Polynesian and Micronesian societies that separate biological sex from socially constructed gender (and thereby recognize same-sex but opposite-gender marriage as equal to opposite-sex/opposite-gender marriage) to modern-day Canada and Denmark, Iowa and Massachusetts–then your “rule” is not a rule but a typical pattern.
January 11, 2010, 10:59 pmRandy says:
badlaw: “For the purposes of this debate, the relevant difference is you and your boyfriend wont ever create a child within your relationship, thus the state doesn’t have much use for your relationship.”
So the state has no use for any relationship where children are not possible? That’s news to everyone in the world, isn’t it? The state recognizes relationships for many couples that cannot concieve or have no children, don’t they?
Furthermore, many gay couples DO have children. Sometimes it’s adoption. Sometimes is from a previous marriage. And sometimes, in a lesbian relationship, a women can have a natural birth child. Are you seriously saying that the state has NO interest in those relationships?
“But since you want to be considered the same as heterosexual couples where you’re obviously not with regards to a fairly core aspect of marriage (or rather, why the state has any interest in it), the fact that you love your boyfriend like a heterosexual person would love a spouse means nothing.”
Well, I guess it’s progress that you can admit that our love comparable to yours. Thank goodness for small favors! (Is that a glib comment — my apologies. But I can’t get other people to even get that far.)
“But who am I kidding? You’ll never accept that answer.”
you are right. And why should I accept it? You make an arbitrary reason for denying gay people marriage — not having natural children — and making that the dividing line. But you are unwilling to use that *same* dividing line to prevent straight people from the benefits of marriage. That’s rather hypocritical, don’t you think?
And strangely, states such as Mass, Vermont, Iowa, and countries such as CAnada, Sweden and Spain DO have a interest in my relationship. How do you square your statement with these facts? And is there any downside to a state having an interest in my relationship? Any at all?
“you’ll just make some catty comment about people being homophobes but not wanting to admit it.”
I see. So I call people homophobes, but I don’t admit that I do it? Perhaps your credibility would improve if you actually stuck with the facts, okay? I’m sorry if my questions make you uncomfortable, but if you are going to deny people rights, you really should have a coherent reason.
January 11, 2010, 11:09 pmMichael Ejercito says:
Under 14th Amendment case law, gender discrimination is not held to the same level of scrutiny as racial discrimination.
The Supreme Court refused to strike down a law allowing men but not women to vote in the case of Minor v. Happersett ; it took the Nineteenth Amendment for the U.S. Constitution to forbid such laws.
The very fact that opposite-sex couplings could result in pregnancy, while same-sex couplings can never do so, is enough difference to justify defining marriage as between one man and one woman.
Even if same-sex couples were entitled to tax, inheritance, power-of-attorney, and other legal benefits that married couples enjoy, states are almost certain to have the power to classify them differently from married couples.
January 11, 2010, 11:13 pmptt says:
This argument would be greatly bolstered if heterosexual society set up a tiered system of marriage with First-Class Marriage going to couples who produced a child within wedlock and stayed there. Second-Class could go to couples who adopted within wedlock. Third to couples who produced a child outside of wedlock and then got married. Fourth to couples who were married but had children produced outside of the current marriage. Fifth to couples who produced a child within wedlock and then got divorced. (feel free to rearrange as you wish)
The thing is, many of those distinctions are part of our “marriage tradition” though, to be honest, the stigma of some of the arrangement fell more on the children than on the married/divorced couple.
January 11, 2010, 11:39 pmbadlaw says:
Because that standard doesn’t go far enough, in your opinion, doesn’t mean it’s not a rational basis for limiting marriage in this way.
Children are a big part of the reason the state is even involved with marriage, and the fact that men and women tend to have children means the state has a compelling interest in incentivizing stable male/female relationships for the purpose of rearing those children. That doesn’t necessarily take away from same-sex couples who have and raise children, but the difference is, theirs is a rare and deliberate occurence, whereas biological relationships create a parental dynamic without a third-party most of the time. Also, it’s not objectively true that same-sex parents raise their kids just as well or better than their biological parents. Perhaps that point can be proven at some later date, but right now it’s speculation. If the legislature believed it to be true, they have the power to reflect that. But it’s not lacking rational basis for the legislature to conclude that they want to clearly give incentives to the biological relationships that produce children over same-sex relationships which may (but likely wont) obtain children in some way in the future.
This argument isn’t an arbitrary distinction between couples. I don’t know that we could point to any other fundamental aspect of a legalized marriage as being more important than the ability to have and raise children. Because any relationship could stand to benefit from legal marriage doesn’t entitle them to it, any more than I’m entitled to Social Security just because I could benefit from it.
I would say I’d be in favor federal legislation — something like the “Civil Unions Act” — that itemized and granted gay and lesbian relationships many of the substantive federal benefits, irrespective of their state’s willingness to recognize them. But I know better. Marriage benefits can and do vary from couple to couple, from state to state, from year to year. People act like legal marriage is all perks and no catch. Most of the actual benefits are circumstantial, affect relatively few straight couples, and those that would provide a financial incentive tend to come later in life anyway. You best stand a chance of seeing a net benefit if your spouse makes significantly more or significantly less than you, or if there are a few kids involved. The vast majority of couples tend to be penalized under different provisions in federal tax codes, to where any other minor benefit really doesn’t substantially alter their situation.
January 12, 2010, 12:45 ambadlaw says:
Not for those relationships, no. Because they manage to bring children into their relationship doesn’t alter the fact that the relationship itself doesn’t compel the state to recognize them as being the same as heterosexual marriages.
And do you honestly not see the difference between a straight couple that doesn’t have children, and the fact that no gay couple can or does within their relationship, or are you being purposely obtuse?
Whatever.
The fact that you consider procreation within marriage to be an arbitrary reason for why people view these two types of relationships as being fundamentally different lets me know just how ignorant you are of the purpose of marriage. You only see legal marriage as a gravy train you’re not allowed on, or an institution where the only purpose is self-actualization and to feel good for having the blessing of the state. Any defining characteristics must be arbitrary.
And states and countries that have legalized gay marriage don’t care about any of the overriding principles of marriage. They see it as just a luxury item of romantically-inclined couples.
LOL, never fails.
The only way you know how to communicate is by being obnoxious. Now you see why I tend to ignore people like you, zuch, Dilan Esper, and several others who tend to show up in these kinds of threads. You’re like self-righteous middle-schoolers or something. You diminish any sort of enlightened discussion that might go on here. I don’t care that you believe gay marriage should be legal. Plenty of people do. But all you ever seem to do is make snide remarks that don’t add anything of interest or importance to the discussion. Of course, I don’t expect you to be anything but impressed with yourself over that, but I just thought I’d let you know.
January 12, 2010, 1:08 amDave says:
1, Love is neither a necessary nor sufficient condition for marriage. Randy’s love for anyone is legally irrelevant. However, assuming for the sake of argument that it is necessary, difficulties arise thereby by excluding arranged marriages from the set of all marriages. If we say that love is merely sufficient for marriage, it is hard to see why consensual polygamous relations should be excluded from that set. (We can also see that it’s not sufficient because minors cannot marry, nor may an adult over a certain age marry a minor). In fact, Randy’s suggested constitutional ban of polygamous relations would be just as arbitrary as one for gay marriage, since it is the tyranny of the majority imposing its will on the individual rights of consenting adults/ the parties involved. He also makes a fallacious argument from judicial activism to subsequent popular acceptance (it is, at best, appeal to probability). That is a sufficient, but not necessary outcome. He also offers a fallacious argument moving from a poster’s suggested proposition that children are better off with one man and one woman by removing children for situations where that kind of relationship doesn’t obtain. The fallacy is in moving from the poster’s claim of it being a superior or optimal situation to one where the law must always try to bring it about. One can obviously maintain the former without the latter being mandated.
2, Quite a few posters have listed examples in history and geography of non-heterosexual, non-monogamous marriages. Are we supposed to infer from this that these aren’t merely exceptions to the rule and possibly good/bad things to do? On what basis? A Roman leader had a three day marriage to a man. Did he also butcher human beings to celebrate by boiling them in a metal calf? Why does one example give validity to one practice but not the other? To paraphrase the American debate between Scalia and Breyer, the Canadian government recognized gay marriage. Iran didn’t. To give preference to the Canucki viewpoint, one must appeal to some other ulterior discriminating norm/principle. What is that principle exactly? It’d be hard to ID it as unqualified Equality if we include the Roman example anyway… Even if the mere number of examples evidences anything, it is a greater tendency to polygamy, and thus we should sooner legalize that kind of relation than gay marriage.
3, John Bingham is spinning in his grave by the rape of his Amendment. Damn Yankee.
January 12, 2010, 1:23 amRandy says:
BAdlaw: “Because they manage to bring children into their relationship doesn’t alter the fact that the relationship itself doesn’t compel the state to recognize them as being the same as heterosexual marriages.”
But you specifically said that the state *doesn’t* have an interest in my relationship precisely because I don’t have children. But if I DO have children, it STILL has no interest in my relationship? And the state has an interest in heterosexual relationships *regardless* of whether they have children. And you claim that I”m being obtuse!
“And do you honestly not see the difference between a straight couple that doesn’t have children, and the fact that no gay couple can or does within their relationship?”
I see no difference between a straight couple that doesn’t have children and gay couple that doesn’t have children. I see no difference between a straight couple that has children, and a gay couple that has children. If you see a difference, please explain.
“The fact that you consider procreation within marriage to be an arbitrary reason for why people view these two types of relationships as being fundamentally different lets me know just how ignorant you are of the purpose of marriage”
I don’t consider procreation within (or even outside) marriage to have anything to do with marriage. Currently, in most states, all you need to get legally married is to have two opposite sex people of a certain age who agree to get married. They don’t have to be capable of bearing children, they don’t even have to be in love. That’s the legal standard — I didn’t make it up, and I hope that you understand that the sole extent of the state’s inquiry. If the state had any interest in procreation, would there be a question on the marriage license about this? IF they state had any interest in procreation, wouldn’t it do something about marriages that fail to produce children? But they do not. Any striaght couple can remain childless for the entire length of the marriage, and the state recognizes it as legal every moment.
“You only see legal marriage as a gravy train you’re not allowed on, or an institution where the only purpose is self-actualization and to feel good for having the blessing of the state”
Perhaps. I don’t know — I’m not married. So please tell me, what do straight people see legal marriage as? They don’t see it as a blessing from the state? Then why do straight people bother getting married at all if this isn’t important to them?
The fact of the matter is that people get married for all sorts of reasons. Some people marry for money, others for love, others to relieve loneliness, others because they have romantic notions — and the state doesn’t question why anyone would want to marry so long as you meet the basic qualifications. So should you. Unless you really think that the government should make inquiries as to why any couple really wants to marry (a very unlibertarian position, I would add), it’s best to let people make these decisions themselves. It’s called freedom and liberty.
“But all you ever seem to do is make snide remarks that don’t add anything of interest or importance to the discussion.”
Really? I’ve continually asked questions and pointed out flaws in your arguments, and that means they are snide comments? If you don’t like to have your assumptions questions, you should blog on other sites — there are plenty were people will agree with you and not debate you at all.
January 12, 2010, 2:19 amRandy says:
Dave: “He also offers a fallacious argument moving from a poster’s suggested proposition that children are better off with one man and one woman by removing children for situations where that kind of relationship doesn’t obtain. The fallacy is in moving from the poster’s claim of it being a superior or optimal situation to one where the law must always try to bring it about. One can obviously maintain the former without the latter being mandated.”
Dave, thanks for your comments. I only offered the solution of a constitution amendment banning polygamy to those people who would favor SSM *but for* their fear it would lead to polygamy. I do agree it’s arbitrary, though.
I also agree with your above statement. But that isn’t the issue — the issue is that for people who oppose SSM, they argue that children are best with a man and woman as father, and therefore, we must oppose SSM. That’s the real fallacy — that by banning SSM, it will somehow prevent gays from having children. It doesn’t, of course. So what’s best for the children of gay parents? These people never have an answer (and neither does Badlaw, for that matter). They claim that marriage is ‘about children’, but when gays have children, they no longer care ‘about the children.’ It’s their fault for choosing gay parents!
“Are we supposed to infer from this that these aren’t merely exceptions to the rule and possibly good/bad things to do? ”
It’s not entirely arbitrary. Our notions of freedom and liberty change over time. Those words don’t exist in the Bible, at least not our concept of them. They are modern notions, new since the renaissance at least, and the concepts are continually evolving. 50 years ago, interracial marriage was banned everywhere, and no one really cared whether some people were inconvenienced. Today, it is allowed throughout the whole US. So why was it okay in one time period, but not okay in another? Because we keep expanding the notion of rights and liberty. If anyone can cite any reasons why this change was bad, it would be interesting to see.
January 12, 2010, 2:33 amchiMaxx says:
Dave says:
But the fact is that marriage as currently constituted in the United States is itself an anomoly in numerous ways. Much of it begins with the fact that over the past century and a half we have flattened gender performance difference (encompassing everything from what kind of work was expected of and available to those identified as men versus those identified as women to what areas and kinds of social access people are permitted by their performed gender) and so have moved the perceived core difference in marriage from performed gender role to biological sex.
In our culture, the differences between men and women as those gender roles are socially performed are now superficial. Our ancestors would have found this perverse: Separating labor by sex was to them essential. And where the social roles of men and women were widely divergent, it was as common as not for accommodation to be made for individuals to perform the opposite gender from their biological sex–biological males living within the society as women, biological females living within the society as men. Even where there were not formal structures for female men and male women to marry as men and women (as there are, for instance, among the Bugis of Indonesia) there were often informal supports for household building as the performed gender rather than the biological sex. It was about building a coherent family with the distinct and complementary social roles of man and woman combining forces.
In short, we have become less like bees (where males and females pursue entirely different livelihoods and provide entirely separate contributions to the social unit) and more like penguins (where, outside of the actual period of the incubation of offspring, males and females pursue their livelihood in the same ways and provide essentially the same contributions to the social unit).
Having erased the fundamental social differences between men and women, and thus having for the first time in recorded human history established same-gender marriage, there is no longer a strong social reason for prohibiting same-sex marriage. Since there are no fundamental social differences between men and women, there are no fundamental obstacles to same-sex marriage. That is why the intense focus of opposition against same-sex marriage comes largely from those groups who are uncomfortable with or ambivalent about the (very recent) flattening of gender roles but who cannot attack that change directly because it has been so pervasive.
At heart, the issue is not that same-sex marriage will change marriage, but that the erasure of fundamental gender difference has so changed marriage that same-sex marriage is inevitable.
January 12, 2010, 6:51 amDave says:
Randy,
Thanks for your response. We can respect the rights of a parent qua parent without accepting the optimality of the living arrangements. In other words, the answer is that there MAY be nothing that can or ought to be done vis-a-vis the children of a gay parent, even though the situation is not optimal. Just as we can say the rate of single teenage mothers is alarming and a bad social phenomenon, but still think it best that the child remain with the mother. However, if regulation can curtail such behavior, e.g., by cutting welfare, or the hierarchy inherent in adoption rules concerning desirable kinds of adopting parents, it could provide some alleviation or promote those optimal outcomes.
As to your point about liberty and freedom, it obviously does not follow that unqualified increases in each lead to improved results or won’t create harm. For example, the obvious social harm of single teenage mothers (statistical significance of children raised by single mothers being more likely to engaged in antisocial or criminal behavior) is the direct product of increased liberty. If we keep increasing liberty such that minors are now considered best able to decide matters of their education, diets, etc., would we say that increase in liberty and freedom was good? In the least, then, your purported metric of progress, the principle of increased liberty and freedom, must be heavily qualified by some other norm. I deny that a bald appeal to for any given circumstance cannot alone prove the goodness of the outcome. (I furthermore doubt that liberty is predicated upon government bestowal of benefits like labels).
Chimaxx,
January 12, 2010, 9:49 amAnomalous relative to who? The rest of the world? Surely not. The West? Even then that’s not clear cut. Again, why should the fact of cultural difference from other nations have normative significance? You too presume the GOODNESS of the outcome without establishing why it is so.
chiMaxx says:
Yes, Dave, the extent to which gender roles have been flattened is indeed anomolous with regard to the rest of the world and to human cultures across time.
January 12, 2010, 11:47 amTotally distracte4d, for now says:
Olson is either a visitor from Bizarro world or an idiot by espousing conservatives should celebrate gay marriage.
You are an idiot also if you think the current reading of the constitutional equal protection is enough to prevent it’s replacement with a modified version specifically for the gay case.
January 12, 2010, 12:42 pmChris Travers says:
Ok, so suppose the Supreme Court doesn’t revisit Baker but various state legislatures legalize gay marriage, and some other state supreme courts treat their equal protection clauses with more bite than the Federal EPC.
That just means eventually there will be enough support for a Constitutional Amendment providing equality in marriage laws to same-sex couples.
To quote a great TV show, “the avalanche has begun and it is too late for the pebbles to vote.” Well in this case, it is not too late to vote, but it is probably too late to stop the tide.
January 12, 2010, 1:46 pmChris Travers says:
Couldn’t resist being a language geek and I know it is bad form to pick on missing apostrophes, but….
I suppose a mens restroom is where to to wash up your mind and perhaps get rid of a bit of mental waste?
January 12, 2010, 1:50 pmDave says:
Chimaxx,
How is a Western European country with flattened gender roles but no gay marriage different from America in this regard? Your claim that “marriage as currently constituted in the United States is itself an anomoly” is therefore unsound. You also haven’t addressed the goodness issue.
January 12, 2010, 1:51 pmChris Travers says:
Actually I agree with you. For most people, gender is a more critical category than race.
But doesn’t that strengthen rather than erode the idea that same-sex couples are more fundamentally denied equal protection? I mean, if, as you say, gender is more critical than race to the vast majority of people (gay or straight), then what legitimate purpose can this distinction in legal institutions serve?
It certainly would NOT encourage gays to marry members of the opposite sex very well, and even if it did, the result would seem to my mind to be encouraging adultery on both sides.
Wouldn’t providing incentives to committed, legal and monogamous relationships for gays be a good thing if, as you say, the vast majority of people (gay or straight) are far more concerned about the gender of their mates than the race?
January 12, 2010, 1:56 pmChris Travers says:
I am not opposed to recognizing consensual polygamous marriages, but these pose structural problems that a legislature would probably need to spend some serious time tackling. In essence our marriage package of “benefits and responsibilities” assumes two and only two parties. Things would get legally messy by trying to just include polygamous relationships in the same framework in a way that they don’t by extending it to same-sex couples.
In short, there is no way a court would tackle the PRACTICAL issues involved in recognizing polygamy. They MIGHT be willing to strike down criminal bans on polygamy where no legal recognition is sought, however.
January 12, 2010, 2:07 pmChris Travers says:
Out of curiosity, do you think then that Brown v. Board was wrong in overturning the Plessy standard?
For that matter do you think that Plessy v. Fergusson went too far in insisting that black folks were entitled to equal accommodations on the train under the equal protection clause?
January 12, 2010, 2:26 pmbadlaw says:
Yeah, you are being obtuse. The state doesn’t over-specify the issue the way you feel they should to justify their purposes for limiting marriage. Heterosexual unions create children; homosexual ones don’t. The fact that they recognize childless heterosexual relationships — and the fact that “childless” is a state of being in a relationship which could by design create one, whereas “childless” is inherent to homosexual relationships — isn’t to say that they’re more important than homosexual ones with children. It’s that they’re not frequent enough to warrant a restriction on that basis (not to mention the above point) and homosexual relationships with children aren’t frequent enough, nor are they by design biological relationships, to warrant ignoring the rule and calling them the same thing. The fact that there isn’t strict uniformity doesn’t justify ignoring fundamental differences, and I think you know that but disregard that point since in this case you come out on the losing end of it.
…and that would be massively (yet unsurprisingly) ignorant on your part. It’s interesting that it takes a man and a woman to create a child, but any old body can raise it, according to you, but whatever.
You don’t see any overly strict standards because there’s a cultural and institutional understanding that people tend to have children, those children need their mothers and fathers (as most of the social science over the past 40 years will tell you), and the point is to incentivize those relationships. Why mandate that someone give you proof of all these things if there’s an understanding that it’s more than likely probable, and history has proven time and time again that it will occur? It’s overmuch. The reason marriage isn’t overly intrusive is because it’s been almost uniformly acknowledged that marriage has a distinct purpose for all of this country’s history, and only recently has there been some “confusion” over it.
Any reasonable person could infer that there are at least some overriding principles with regards to legally recognizing marriage because marriage has never been defined under the law as any abstract pairing that applies for a marriage license. The fact that there are even certain restrictions on heterosexual unions could say they were going for…something. Again: maybe I’m giving you too much credit, but I think you know that.
January 12, 2010, 3:41 pmJohn D says:
So you’re taking a category (opposite-sex couples with children) and then carving out an exception for opposite-sex couples without children, but you feel there is no reason for carving out a similar exception for same-sex couples (with or without).
Your argument is that there are too few opposite-sex couples without children to refuse to carve out the exception, and too few same-sex couples with children to agree to carve out an exception.
Do you really have a reason for preferring opposite-sex couples over same-sex ones? But it’s not really setting a rule and carving out a set of exceptions, but actual couples. Now we have to wonder how various couples fall into your schema.
So if Harry and Sally can’t have children of their own but adopt a child, do they count as a couple with children?
If Gertrude and Alice go to a sperm bank and Alice carries a child to term, do they count as a couple with children?
The child Alice bore has an actual genetic relationship to one member of the couple, while the adopted child does not. So in your schema, should we see adoption by an opposite-sex couple as being more like procreation than actual procreation in a same-sex couple?
Further, if neither Bill and Ted nor Bob and Carol have children your view sees them as distinct, because one is opposite-sex. But I think you’re dropping into a tautology here. It’s not an argument. It remains “marriage is for procreation, unless you don’t want to.”
January 13, 2010, 1:31 amFitz says:
Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children. Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.
Only the sexual relationships of men and women together produce children. Therefore, only the sexual relationships of men and women together require governmental regulation because of (1) THEIR CAPACITY TOGETHER TO CREATE SOCIAL DISORDER, and (2) that reproduction is a fact and does have important and inevitable consequences on society both good and bad if it is not regulated. Thus, it inevitably must implicate the political and public aspect insofar as the production of future citizens is not only vital to the survival of a nation, but that the REGULATION OF THIS PRODUCTION OF FUTURE CITIZENS IS JUST AS VITAL.
January 13, 2010, 3:14 amJohn D says:
Fitz, the production of future citizens is quite unregulated. I’m sure that many future citizens are produced under situations that would be looked upon with disfavor by OSHA, the Department of Labor, and many other government agencies.
Further, as has been pointed out many times, avoidance of marriage has no contraceptive effect whatsoever. Moreover, children born of unwed mothers are still considered citizens (if they are the child of a citizen or born within U.S. territory). Citizens can be produced outside of marriage.
You still don’t have a reason for excluding same-sex couples.
Now if we had “provisional marriages” which expired after five years unless the couple had a child which was their mutual issue, then you might have a case.
January 13, 2010, 4:37 amGeoff says:
Supporters of this, a question:
How do you avoid the reductio ad absurdum?
Why can’t I, using your logic, marry my mother? Or fill in the blank with anything else you can think of?
January 13, 2010, 9:07 amchiMaxx says:
Geoff says:
By noting that it is a reductio ad absurdam.
Point out that making that argument is like arguing against the observation that lowering tax rates can sometimes raise revenues by saying “Then setting a negative tax rate should raise even MORE revenue, right?”
And it is. And both arguments are just stupid. And absurd.
January 13, 2010, 11:02 amchiMaxx says:
Dave says:
You are correct in that the flattening of gender roles is found across North America and in much of Western Europe, as well. I focus on US culture because the case is currently being argued in California. I never said it was unique to America, though I see how one could infer that from what I wrote.
I think my argument is orthogonal to the goodness issue, as you raised it. I think it’s generally a good thing that gender roles are less limiting than they once were, because I live in this culture, and I think a case could be made that the more limited roles were more likely to waste talent by limiting what people could achieve by the arbitrary category of gender. But whether I person. And because they have happened, because there are no longer fundamental differences in gender roles and marriage is thus essentially same-gender, then there is no longer a compelling reason to withhold marriage from same-gender couples who are also of the same sex.
January 13, 2010, 11:17 amChris Travers says:
But the government, according to the Supreme Court already cannot regulate the production of future citizens. Laws banning the dispensation of birth control to married/unmarried/teenage persons are already seen as Unconstitutional, for example.
Your argument suggests that Griswold v. Connecticut inexorably leads (eventually) to recognition of same-sex marriage. Do you disagree?
January 13, 2010, 12:02 pmChris Travers says:
If it is truly absurd the matter must stand on its own.
First of all, inbred communities show problems at a higher statistical rate, over many generations than heavily exogamous communities. The issue isn’t really birth defects or mutations but rather that the gene pool is small so problems that do exist become more widespread. Even if no immediate defects are shown, you can end up with cheetah-type problems where the group immune reaction is identical, so communicable illness either hits such a population much more or much less severely than would be otherwise expected.
So for epidemiological reasons, I expect such a ban to be defensible even though marrying close relatives is unlikely, as a rare occasion, to cause any significant problems.
Similarly close relatives are much more likely to pose issues where one individual exercises undue influence over the other, but this is not seen as a problem elsewhere so we can assume that argument is weak and would probably not stand up by itself (we don’t ban marriage between 20-year-olds and 40-year-olds for example).
Can you marry your dog under this sort of logic?
Well let’s see…. If you are in a hospital unconscious and someone has to make medical decisions on your behalf, can the dog do that? If not, then man/dog marriages would not be similarly situated to the benefits compared to gay vs straight marriage. No equal protection claim.
The absurdities don’t generally hold up to close scrutiny.
January 13, 2010, 12:11 pmMichael Ejercito says:
But I thought marriage had nothing to do with reproduction or pregnancy, to hear marriage redefinition proponents say it.
January 13, 2010, 1:15 pmMichael Ejercito says:
I have no objection to the state recognizing and protecting equal rights for same-sex couples in a separate institution, even if the institution was SINO (separate-in-name-only)
January 13, 2010, 1:16 pmProMarriage says:
But this is untrue; you were given a reason. This thread contains many reasons. That you might not consider them good enough reasons does not mean they don’t exist.
And isn’t it a fascinating window into the “thinking” of the “progressive” mind, that the biological reality of male-female differences is just some arbitrary triviality, but “five years” or “two people” are objective criteria somehow.
January 13, 2010, 2:18 pmchiMaxx says:
Fitz writes:
How could same-sex marriage separate marriage from procreation any more than the handful of states that allow first cousins to marry only if they are infertile or past child-bearing age? (see Arizona, Illinois, Wisconsin, Indiana and Utah)
If we are able to carve out an exception that permits marriage for certain couples specifically because they are incapable of procreating, why is allowing same-sex couples to marry more of a violation of our core understanding of why people marry and what marriage is for? Why would we allow these first cousins to marry at all? What is the purpose of permitting them to marry?
Why, it must be that we recognize that marriage has more than one purpose, and the proper care and raising of children is only one of them, and may not be the preeminent one in any particular marriage.
January 13, 2010, 5:13 pmMichael Ejercito says:
What could be wrong with laws referring to same-sex unions and marriages with different names? Does the usage of different names prevent states from deciding what legal benefits attach to the unions?
January 13, 2010, 5:20 pmchiMaxx says:
I don’t know. What could be wrong with laws referring to the unions of post-menopausal or infertile first cousins by a different name from that used for unions of those without such issues of consanguinity? Or perhaps laws referring to the unions of mixed-faith partners by a different name from those who form a union with someone of the same faith? Would the usage of different names prevent states from deciding what legal benefits attach to the unions?
More simply, let me reverse your question and let you answer it:
What could be wrong with laws referring to same-sex marriages and mixed-sex unions with different names?
January 13, 2010, 6:19 pmIrishguy says:
Ahhhh! I just read every comment up to 5.32 this afternoon. Some good stuff. But I felt compelled to comment because Randy, and a few others, have driven me to actually argue against my beliefs.
First, I believe in SSM, and I agree with SS Couples having the same tax, benefit and recognition rights as a striaght couple. I believe it because I think it is fair, it is just, it is right. It does not matter, but I am a happily married hetrosexual male. I’m white also, so I’ve just been blessed from day. And I’m Irish!! Happy days.
But I digress.
So I agree with the sentiment, but I feel some, esp. Randy, miss the reason a State (in the national sense of the term, not the US sense) recognized marriage in the first place. Why does the State care if I marry? Marriage was not created to avoid paying the IRS some money, and it was around long before there were benefits or privacy reasons to want its protection.
As mentioned above, the State has a selfish reason in promoting and rewarding marriage – future tax payers. Simply put, marriage feeds the machine. State support reaches that goal, and the other goal, it creates children in a stable environment.
None of this is to say a SSM cannot raise children successfully through adoption, surogacy or other method. Not does it put down hetro marriages that cannot produce, or single parent families.
I just feel that to discount the role child bearing has in marriage is incredibly stupid. I doubt anyone thought that rewarding marriage with tax breaks was to screw over gay people. It flows from the reason home ownership is rewarded, or any other tax break. (And I know I am only focusing on one benefit).
Pointing out the exceptions is not the best way to make a case. If the State truly believe everyone should go to college it would give a tax break, or make it free. (My country did that). The fact that everyone decided not to go to college does not take from the fact that more would go, and the country would benefit from it. Thus the State decided to reward marriage to get more stable homes to create and raise children. There were other was, and not every rewarded union delivers its side of the bargain, but more do than do not.
Again, I am in favor of SSM. I see no difference in the love between two people of the same sex. I did not choose to be straight. But I do see why hetro marriage is rewarded, I don’t have a problem with that.
I also somewhat have a problem with the race angle some are playing here. I favor SSM on fairness grounds. Not sure of the legal grounds. I feel people make the analogy based on fact that you can’t choose your sexual preference any more than your race. This is true.
But, you can choose to be rewarded by the state or not. Correct? The State is not checking to see if the marriage is truly “GAY” OR “STRAIGHT”. This is not the middle ages where the bed sheets are checked for blood. A couple could meet and decide to marry without having any sexual desire toward each other. Do it for money, for a green card, for the security. A gay person can marry a member of the other sex and get the state benefits. Single people can choose to marry. Why do people not protest that non married people do not get teh same benefits? Why do people believe LOVE has anything to do with LAW? Maybe you love someone that is already married. Maybe they love you, but just not enough to get a divorce. You can’t marry them. There is no discrimination, you just did not meet the requirements.
I guess I disagree that men and women are the exact same, and – for want of a better phrase – serve the same purpose in the same why that a white male, a black male and a yellow male are.
As I said, I find the legal arguments to be unpersuasive. I am in favor of SSM because to me it feels right, the correct thing to do. But is that enough of a legal argument?
January 13, 2010, 8:12 pmMichael Ejercito says:
As far as U.S. Constitutional case law is concerned, nothing.
January 14, 2010, 12:10 amAlan says:
What I’ve said up to this point answers your questions fully. My argument speaks for itself and I’m not parsing it.
More importantly, it’s a red herring for you to cast this as a matter of what I personally think. The issue is whether anyone is willing to take an honest look at what the Constitution says, what it plainly doesn’t say, and what are the implications of that. Apparently very few people are willing to do this. From one of many people seriously deficient in intellectual honesty, I heard, “Fine. You remain unanswered.” Even that person, intellectually dishonest as he is, is semi-honest in that he’s the only one who’s willing to admit that he’s leaving the point unaddressed. No one has an answer to it, but everyone wants to hide from it and insist to himself or herself that it must be wrong, because otherwise certain decisions would be wrong–and no matter what the Constitution actually SAYS, it simply must be interpreted to mean that Brown and Loving were right. The plain text of the Constitution is hiding in plain sight, and nearly everyone wants to keep it hidden.
Even if you ignore original intent and original understanding; even if you ignore the entire history leading to the drafting and ratification of the Civil War Amendments; even if all you have is a copy of the Constitution and a twentieth- or twenty-first-century understanding of the English language, you plainly can’t read the Fourteenth Amendment as requiring equal treatment, and plainly can’t read that amendment as even providing that blacks had the right to vote. This isn’t just my personal opinion; it’s plain from any honest reading of the Amendment. Too bad almost no one is interested in an honest reading.
January 14, 2010, 12:50 amchiMaxx says:
Alan:
I’m not sure about that. You ask earlier what the 14th Amendment offers protection from. I would say it offers protection from unequal treatment under the law–in which case the difference between “equal protection” and “equal treatment” is a distinction without a difference. It may change the way a few cases at the edges would be decided, but not the ones that have been mentioned earlier in this thread. That it took a couple of more amendments to say “We really really mean it” doesn’t change that that is indeed the central message.
January 18, 2010, 12:31 pmAlan says:
First of all, why would anyone choose such a weird, roundabout, unclear way of saying “equal treatment” if the language really guarantees equal treatment? If “equal protection” is shorthand for “equal protection from unequal treatment,” then why doesn’t the Fourteenth Amendment just say “equal treatment?” That would make a lot more sense.
Second, “protection” does not mean anything anywhere near as broad as “treatment.” Protection entails the existence of an affirmative harm and the assumption of a responsibility to prevent that harm to someone. Treatment covers all interaction whatsoever. Since “protection” and “treatment” are not coextensive, there’s no way that “equal protection” could be coextensive with “equal treatment.”
Third, you leave completely unanswered my argument that the plain text of Section 2 of the Fourteenth Amendment (with its repeated reference to suffrage for MALES) clearly indicates that women did not get the right to vote, which means that “equal protection” versus “equal treatment” obviously makes a lot more than the marginal difference you suggest.
Fourth, how could “equal treatment” possibly be what was meant, when the Fourteenth Amendment didn’t give blacks the right to vote? You imply that the Fourteenth Amendment did give blacks the right to vote, but that it took the Fifteenth Amendment to say “we really mean it.” Set aside that your argument is simply wrong as a historical matter (there’s no evidence that the Fourteenth Amendment was intended to give blacks the right to vote, and some supporters of the Fourteenth Amendment were then adamantly opposed to black suffrage). There’s also the problem of Section 2 of the Fourteenth Amendment, which provides that if a state denies any male citizens the right to vote, for any reason other than such male citizens’ having committed treason, rebellion, or other crime, then those male citizens are essentially erased from the state’s population for purposes of determining how many Congressmen (and electoral votes) the state will get. Did this give blacks the right to vote, and then specify a punishment for failure to recognize that right? Not a chance. This is just an incentive clause–if states wanted to give blacks the right to vote, that was their choice, but if they chose not to, then they’d lose some of their voice in the House of Representatives and the Electoral College. Nowhere else does the Constitution contain a punishment clause. Why should this be the only one? It can’t be because of the unique importance of the right to vote. Other rights that were clearly more important than suffrage–like the right not to be enslaved, or the right to equal PROTECTION of the criminal law and tort law–were undeniably left without the aid of any punishment clause. (The Thirteenth Amendment doesn’t say, “… and if a state allows slavery, then the state will be punished in x way.” The Fourteenth Amendment doesn’t say, “… and if a state deliberately looks the other way when blacks are being murdered, thereby committing the worst possible and most obvious denial of equal protection, then the state will be punished in x way.”)
Fifth, if we ignore all history and just look at the text of the Fourteenth Amendment, and we notice from Section 2 that women don’t have the right to vote, and we notice that Section 1 doesn’t say anything about how it’s giving special protection against *racial* classifications, then you can’t assume that “equal protection” gave blacks the right to vote. Since Section 2 makes clear that denying women the vote is permissible, and since nothing in the text of the Amendment makes racial classifications any more suspect than gender classifications, you can’t possibly claim that the equal-protection guarantee gave blacks–or anyone else–the right to vote.
The Fourteenth Amendment clearly does not create a right to equal treatment FOR ANYBODY. All you’ve offered to contest what I’ve said is a totally unsupported, textually insupportable, historically indefensible argument that “equal protection” really meant “equal treatment, or at least something very very close to it”–and with no analysis AT ALL to support it–only bare assertion.
January 28, 2010, 6:38 amMichael Ejercito says:
I should also add two more relevant precedents.
In Rostker v. Goldberg , the Supreme Court upheld a law requiring men, but not women, to register for a possible draft.
In Michael M. v. Superior Court , the Supreme Court upheld a law exempting underage girls, but not underage boys, from prosecution for statutory rape.
January 28, 2010, 10:35 am