A lot of the legal issues in Judge Walker’s opinion have been addressed elsewhere, but I wanted to focus on one narrow part of the opinion raising an issue of particular interest to me: Whether and when the pragmatic concerns abut rapidly changing social institutions provide a rational basis for rejecting such changes. In the Prop 8 case, the state’s argument that Prop 8 was rational because it is generally wise to implement social changes gradually — and that permitting same-sex marriage would be too sweeping a change. Judge Walker disagreed, finding such concerns irrational. He made two arguments, although they’re blended together a bit in the opinion. First, he argued with the premise by claiming that same-sex marriage is not a significant change in social policy:
Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. See FF 55.
FF55 refers to the following Finding of Fact:
55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
Next, Judge Walker used his finding of fact that same-sex marriage has no downside to argue that it is irrational to fear a downside from a quick change to same-sex marriage, even if it is a significant change:
[T]the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8.
. . .
Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.
Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.
Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty. Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct. Whether this is a valid constitutional argument or not, it seems odd to respond to it by making a factual finding about what the future will be like and then saying that the announced factual findings make the concern irrational. It misses the entire argument, which is about our knowledge-uncertainty, by trying to make it a matter of the judge’s power to find facts. (I’m also unsure about whether it makes sense to say that it’s not rational for voters to have had a concern in November 2008 because evidence at a long trial in 2010 persuades a judge in 2010 that the concern is not justified. Given that this evidence wasn’t presented to the voters, as far as I know, were the voters irrational for their failure to understand the situation as clearly as Judge Walker?)
Of course, there are problems with automatically deferring to concerns about rapid social change. If taken too far, it would always lock in the status quo as automatically rational. But whatever the best answer for when concerns about the pace of social change are rational for the purposes of the rational basis test, I don’t think Judge Walker’s opinion offered a persuasive response here. Oh, and to be clear, I favor same-sex marriage, so I’m not saying the argument is persuasive: The issue here is only whether it is irrational.
Benjamin Davis says:
The pace is likely to always be too fast for someone (the majority not seeing the oppression or considering the status quo just fine) and too slow for someone else (the minority alleging oppression). Ginning up fear is a cottage industry in this country and that is why finding it irrational was so powerful. Just boogie men/women in the minds.
August 4, 2010, 9:55 pmBest,
Ben
First Reactions on Perry | The League of Ordinary Gentlemen says:
[...] but… to Orin Kerr: If permitting same-sex marriage is in itself too rapid a social change, how does one ever achieve same-sex marriage, given that marriage-lite or civil unions are both either invidious distinctions — separate [...]
August 4, 2010, 9:58 pmMikeM says:
IANAL, but it seems to me that the social change engendered by Brown far surpasses any social change due to this ruling. After all, Massachusetts and other states seem to have adapted rather quietly to same-sex marriage.
August 4, 2010, 9:59 pmRonald C. Den Otter says:
“Of course, there are problems with automatically deferring to concerns about rapid social change. If taken too far, it would always lock in the status quo as automatically rational. But whatever the best answer for when concerns about the pace of social change are rational for the purposes of the rational basis test, I don’t think Judge Walker’s opinion offered a persuasive response here. Oh, and to be clear, I favor same-sex marriage, so I’m not saying the argument is persuasive: The issue here is only whether it is irrational.”
Orin, the problem, as I see it, in this context and others, is that it is far too easy for the state to argue that it has a legitimate interest in controlling the pace of social change. This argument could be deployed just about anytime the status quo is challenged and used as an excuse not to do what the Constitution arguably requires. Weren’t these kinds of arguments deployed in the context of racially desegrgating public schools?
Is it not legitimate or irrational? I suspect that it is, although I don’t have a crystal ball. Neither does Judge Walker and neither does the state. We have registered domestic partnerships here for same-sex couples in California and the sky hasn’t fallen (yet).
August 4, 2010, 10:02 pmwade says:
Since when has rapid social change become a point of law, and why
August 4, 2010, 10:02 pmDJ says:
“Given that this evidence wasn’t presented to the voters, as far as I know, were the voters irrational for their failure to understand the situation as clearly as Judge Walker?”
I think this question exposes the fundamental flaw in the judge’s opinion. The court appears to me to have turned rational basis analysis on its head: “We’ve held a substantial evidentiary hearing and, based on what I’ve heard, the lawmakers here clearly didn’t understand the facts. Therefore, irrational animus must have been the reason the law passed.” I can’t think of any other example of such burden-shifting in rational basis review in my review of the case law.
August 4, 2010, 10:02 pmbadlaw says:
The entire Decision is fraudulent.
August 4, 2010, 10:02 pmJason L. says:
First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.
It’s significant in a political sense. That is, the policy question of same-sex marriage bears strongly on electoral fortunes, political strategy, etc. The policy question of same-sex marriage, however, is not the same as same-sex marriage itself. Same-sex marriage itself, the judge found, does not significantly affect society.
August 4, 2010, 10:04 pmDave says:
I will disagree, here. For gay and lesbian couples, it is rather obviously a big deal. For the rest of us, there’s really no evidence that it will have any effect at all, beyond the necessity to buy a few more wedding presents (wedding present tip: Kyocera ceramic knives). Part of that is that proportion of the population involved is small (~3%), but much of it is due to the conservative nature of marriage itself. The choice of getting married or not is an extremely important life option, but once any given couple chooses it _they greatly limit their personal life options_. This is not a recipe for massive social change for any but those directly involved, and for those directly involved it will likely make their personal lives and political outlooks more conservative.
As for using the force of government to increase or decrease the pace of social change, that strikes me as exactly backward. Government, properly constituted, is the servant of society, not it’s master. Using government force to attempt to alter the evolution of society is a simple ill, whether it manifests as propaganda, indoctrination, or censorship. Up against the wall with the lot of them.
August 4, 2010, 10:06 pmRandy says:
“Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal. ”
I disagree. You are confusing an advance for civil rights with sweeping social change. They *might* be the same thing, or one *might* lead to they other, but they are not the same thing.
IF there is sweeping social change, it has already occured — gay people are choosing to couple up just as heterosexuals are. The question is merely whether these couplings will be legally recognized. But the fact that they exist already, and sometimes in substantial or very visible circumstances, in every area of the union is undisputed.
” For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct.”
Perhaps so. But didn’t giving women the right to vote occur in one brief moment, with the passage of a constitutional amendment? Surely that was a more sweeping social change that merely giving gays the right to marry, and affected far more people.
What about freeing the slaves? Sure, that was sweeping change, and took generations to fully digest it. So should we have moved cautiously — just dolling out small amounts of freedom to blacks to see how society would react?
What about lowering the voting age to 18? One could list item after item that arguably instituted ‘sweeping social change.’ Sometimes it did, sometimes it didn’t, but sometimes we did what we did because it was the right thing to do. That is changes things it a given.
The real change is that 20 years ago, SSM wasn’t even considered by most Americans. 10 years ago, one third of Americans approved of it. Today, it’s almost even. Ten years from now, a clear majority will approve of it. Society is moving faster than our laws or our judges or political leaders are willing to acknowledge.
But even that isn’t the real change. The real fundamental change is that gays are no longer despised as they were 20 or 30 years ago. We are seen now as normal human beings who deserve the same rights as everyone else. Some people find that threatening, others shrug their shoulders. But whatever the case, the fact is that sweeping social change is occuring, *regardless* of andy court decisions.
One last point: About 15 years ago, SCOTUS issued Dale v. BSA, and everyone saw it as a great defeat for gay rights, and those who oppose gays saw it as vindication and a halt to gay rights. Just the other day, the NY Times ran an article about the fact that membership in the BSA is down by about half, and they are struggling with because of their discriminatory policies that so many Americans find objectionable.
Sweeping social change has already occurred, and it simply can’t be stopped by any court decision. Even SCOTUS doesn’t have that power.
August 4, 2010, 10:06 pmjrose says:
This post put forth something I didn’t agree with (I thought accepting the findings of fact necessarily meant rejecting a rational basis), but I’m now persuaded otherwise. That makes Orin beyond brilliant. And if you can come up with a cogent standard for when to accept/reject avoiding rapid change as rational, then we will promote you to a deity.
August 4, 2010, 10:11 pmSueSimp says:
If Judge Walker is sticking solely to the evidence presented at trial, then he doesn’t have much choice but to reach this conclusion.
Yeah, in the real world, everyone knows there is a lot more going on. But the defense’s factual evidence was so absurdly weak, it left a hole wide open for Judge Walker to do exactly what he did: make a decision based only on the evidence offered at trial, which was very much skewed to show that the prohibition on same-sex marriage was arbitrary and irrational.
August 4, 2010, 10:14 pmRandy says:
Dave: ” For gay and lesbian couples, it is rather obviously a big deal. For the rest of us, there’s really no evidence that it will have any effect at all, beyond the necessity to buy a few more wedding presents.”
Agreed. But for some people, though, they believe it to be a big deal. When you grow up thinking that gays are disgusting, awful, child predators, immoral and all that, this is a big deal for them. It doesn’t affect their lives in any material way, but their fears are so huge that gays are going to turn everyone into raging sexually ambiguous animals that they are simply besides themselves.
I feel sorry for them. Their fears are all in their head and with out any basis in reality, but they nonetheless cling to their fears. Why I don’t know, and that’s why I feel sorry for them.
August 4, 2010, 10:15 pmptt says:
The first application for a marriage license by a same-sex couple was in Colorado in 1975. It was granted (at least temporarily). I was 16 at the time. I’m 52 now, partnered for 31 years. The change doesn’t strike me as particularly rapid.
How many generations must pass for the courts to accept change? On average, I mean.
August 4, 2010, 10:18 pmRonald C. Den Otter says:
Btw, how rapid is rapid social change when 48% of the voters voted against Prop. 8? (caveat: most of whom knew that they were voting in favor of ssm :)) and there is already a domestic partnership law in place that more or less gives same-sex couples the same marital rights and reponsibilities.
August 4, 2010, 10:19 pmJames Hanley says:
I respectfully disagree, as I think Orin conflates belief that this is a big social issue with “sweeping social change.” Whatever some people’s belief (and regardless of how many hold that belief, or we’re just back to majority rule over rights), the evidence shows that the change is not so great. The effects from Massachusetts to Iowa have been minimal. And several states without same-sex marriage have had half-way forms, that themselves have caused little social problem (in fact the only social problems they’ve caused have been in being inadequate).
As a Burkean, I do take seriously the second part of his argument, about dealing with the pace of change. But unless we can anticipate that society is so unprepared for the change that we’re likely to create a French Revolution-style terror and counter-reaction, then I have to say that while the pragmatic concern is not to be taken lightly, it must fall before the fundamental rights of individuals.
August 4, 2010, 10:20 pmJason L. says:
SueSimp: [I]n the real world, everyone knows there is a lot more going on. But the defense’s factual evidence was so absurdly weak, it left a hole wide open for Judge Walker to do exactly what he did: make a decision based only on the evidence before him, which left no conclusion available other than that the prohibition on same-sex marriage was arbitrary and irrational.
If this is correct, did Walker fall into a trap, even if it was laid unintentionally? The no-rational-basis decision may be irresistible given the defense’s weak evidence, and so Walker’s ruling may have been justified given the factual record, but what’s to say that the Supreme Court won’t allow itself to occupy the real world and bring in some of the “more [that's] going on”?
August 4, 2010, 10:25 pmJohn D says:
Ptt,
Correction, it was the Baker of the infamous Baker v. Nelson in 1971. Forty-one years ago, back when you were 11. There were a series of subsequent attempts, including California after they made their marriage laws gender neutral, then amending it to rule out same-sex marriage in 1972. Even slower change than you thought.
Oh, and even though I just citedBaker, I take some solace in that I think things will have one of two possible conclusions:
1. SCOTUS will state that there is no right for same-sex couples to marry, striking down Perry without making reference to Baker.
or
2. SCOTUS will uphold the Perry decision without making reference to Baker.
I actually think it unlikely Baker will get cited by SCOTUS, and after a brief interlude in which VC commentators will chastise SCOTUS for their failure to cite Baker, the case will fall back into obscurity, remembered only by historians.
Then we can get to the point where conservatives start pretending they were for same-sex marriage all along.
August 4, 2010, 10:26 pmHappyFederalist says:
Funny. All three of your examples were accomplished through constitutional amendments approved by super-majorities.
August 4, 2010, 10:27 pmRandy says:
“” For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct.”
Just to elaborate, what errors in granting the right to marry could possibly arise? We’ve had it in MA for almost ten years now. Surely, if there was an error, some evidence would have arisen by now? Many other countries also allow SSM – any errors there?
I’m not sure I even understand the concept of an ‘error’ in this discussion. Was there an ‘error’ in freeing the slaves? or giving women the right to vote?
I can understand that Prohibition was an error — it quickly gave rise to all sorts of illegal activity. But what sort of illegal activity will SSM give rise to that opposite sex marriage hasn’t already instituted? We already have procedures to deal with divorce (an ‘error’ I suppose that two people thought they spend their lives together only to find they can’t stand the sight each other), and also sham marriages for immigration processes. We have in fact a whole body of family law to deal with such errors. Surely, if any such errors arise with SSM, it can be handled as we already do.
August 4, 2010, 10:28 pmTGGP says:
What does irrationality have to do with constitutionality? Particularly since Proposition 8 itself amends the constitution?
August 4, 2010, 10:32 pmRandy says:
“Funny. All three of your examples were accomplished through constitutional amendments approved by super-majorities.”
You never heard of the Emancipation Proclamation?
Desegregation of schools was done in one court decision. Loving v. VA cut down interracial marriage bans in one fell swoop for many states, Griswald allowed contraception and opened a whole sexual revolution.
I could go on, but you get the point.
August 4, 2010, 10:33 pmJason L. says:
Orin:Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty.
JamesHanley: As a Burkean, I do take seriously the second part of his argument, about dealing with the pace of change. But [it's doubtful that] we can anticipate that society is so unprepared for the change that we’re likely to create a French Revolution-style terror and counter-reaction. . ..
In order for the ex ante argument about uncertainty not to prove too much, there has to be a reason for it to be applicable in this particular case. Otherwise, a generalized speed-of-social-change argument would be able to defeat any change in the law. The proponents, Walker found, put forth no evidence that this particular change should be subject to the speed-of-social-change concern. I agree he wasn’t very clear about this, or perhaps didn’t even think of it in Orin’s terms. But he did cite evidence that there was not only no especial reason to subject SSM to the speed-of-social-change argument, there was evidence that it has not and would not effect societal upheaval.
August 4, 2010, 10:41 pmbadlaw says:
Which point is that? How did Griswold open “a whole sexual revolution”? I thought Loving only made it legal for whites to marry people of other races, since as far as I know, most laws didn’t pertain to other races.
August 4, 2010, 10:41 pmirrational says:
I support ignoring rapid social change as irrational. Federal courts everywhere should embrace the recent public opinion rejection of gun control and strike down all kinds of gun control laws including the machine gun ban.
August 4, 2010, 10:43 pmChristian K says:
Domestic Partnership or “marriage lite” has been the law in California for over a decade. There have been 18000 Same Sex Marriage for two-ish years. I fail to see this as “rapid”. I would describe it more as “glacial”.
August 4, 2010, 10:45 pmjeffry house says:
“it seems pretty clear that it’s a big deal”
It would be hard to convince us here in Canada of that. We’ve had gay marriage for eight years now, and there is not the slightest peep of concern expressed anywhere.
Everything else continues just as before.
For gays, it can be important, but for everyone else it’s a big yawn.
August 4, 2010, 10:49 pmJason L. says:
TGGP: What does irrationality have to do with constitutionality? Particularly since Proposition 8 itself amends the constitution?
Prop. 8 amended the CA constitution. The SCOTUS ruled in United States v. Carolene Products Co., 1938, that the U.S. constitution requires that for the government to infringing on life, liberty, or property, or to treat different classes of persons unequally, it must have a rational basis for doing so. Read more at http://en.wikipedia.org/wiki/Rational_basis_review.
August 4, 2010, 10:51 pmAnderson says:
First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect.
I think MikeM and others are plainly correct on this.
Gay couples can cohabit together, enter into (religious) marriages together, and in many states, can enter into civil unions that have most of the legal effects of marriage.
There is not much “social change” involved in adding the name and sanction of “marriage” to what’s already going on. Brown was potentially a much more sweeping change; I say “potentially” because in fact it took 20 years for separate and inequal schools to be abolished in practice (and not even then — think “academies” and “suburbs”).
The remarkable thing about gay marriage is how little disturbance it bids to cause. This country was literally *built* (parts of it) on racial prejudice. Anti-gay bias is nowhere near so fundamental a part of the fabric of society as racism was.
I think Prof. Kerr’s concern about “social change” is also undercut by the factual record in the case.
August 4, 2010, 10:55 pmdebauched_sloth says:
Rational basis review is the intellectual equivalent of arguing about whether the Hulk could beat Spiderman in a fight. In either case, claiming that one side did or did not have the better of the argument seems to reflect a certain misunderstanding about what is really going on.
August 4, 2010, 10:56 pmMax Power says:
Thank you! Whatever you think the correct legal answer is, I don’t understand those on this site who insist that Baker settled everything in a one-sentence unreasoned dismissal. I mean, hell, we went from a fully reasoned, undoubtedly precedential decision in Bowers to reversal in Lawrence in less time than has elapsed since the entirely obscure, unreasoned Baker. The clinging to that one sentence strikes me as fairly desperate.
August 4, 2010, 10:56 pmAnderson says:
Legal question: can the SCOTUS hold that, on the factual record, the holding was correct as regards California, without opining as to whether another state’s case vs. gay marriage might be factually persuasive enough to reach a different result?
August 4, 2010, 10:58 pmJohn Hamilton says:
We have in place a terrific system for testing new social experiments: the fifty individual states. It seems to me more in keeping with wise social policy and in no way contradictory to the Constitution to allow new social experiments to be tried in one or more of these fifty laboratories than to be thrust upon the whole country recklessly and at once.
August 4, 2010, 11:00 pm.
On a separate note, there is no conclusive evidence that homosexuality is an immutable trait as opposed to a choice, or if you prefer a temptation. Although not raised at trial, despite the long-asserted hope/claim by some there has as yet been no identification of any “homosexual gene” or group of “homosexual genes”. I’m guessing that there has been an intensive search for said gene, and yet nothing. Meanwhile many more obscure genetic markers have been identified. This is, of course, not dispositive. But lack of evidence where one would expect evidence is evidence.
.
In the face of this lack of genetic evidence, there have been forwarded alternative theories to support the claim that homosexuality is an “immutable trait”. Even this court does not make that claim (or I didn’t yet find it), and consequently makes no ruling that strict scrutiny applies.
.
In the absence of homosexuality as an “immutable trait”, comparison of sexual orientation to race are unwarranted, off-point and misleading.
.
In Finding of Fact 45 the court concluded that proponents of Prop 8 (I might be slightly misquoting) “understood the existence of homosexuals as individuals distinct from heterosexuals”. The court uses as evidence for this alleged fact the use of the term “gays” and similar statements in advertisements promoting Prop 8. I think this is at once a leap in logic and an abuse of the civility of Prop 8 proponents (albeit a strategically wise civility).
.
In terms of logic: the use of the word “gay” could easily be viewed (and no doubt was viewed by many “Yes” voters as a shorthand for “people who engage in homosexual behavior” (activity) as opposed to “people who are homosexual” (a trait).
.
In terms of civility, I suppose that proponents of Prop 8 could have used more offensive terminology and/or verbs rather than nouns rather than the noun “gay”. Such seems unnecessarily rude, as well as wordy. Does this civility give the judge license to conclude that proponents would agree with his FF 45? I don’t think so.
.
In short, FF 45 is ill-founded.
Perseus says:
That argument cuts both ways. If affecting one’s life in a “material way” is the standard (which begs the question of what constitutes “material”), then why did so many of the opponents of Prop. 8 fly into a hysterical tizzy when there is so little difference between the material benefits of civil unions and marriage in the state of California?
August 4, 2010, 11:07 pmAllan Leedy says:
Not so fast.
August 4, 2010, 11:08 pmRonald C. Den Otter says:
How about the racial desegregation of public schools and public places more generally?
August 4, 2010, 11:09 pmRandy says:
“How did Griswold open “a whole sexual revolution”? I thought Loving only made it legal for whites to marry people of other races, since as far as I know, most laws didn’t pertain to other races.”
Many people claim that by allowing contraceptives to be freely available, it opened up a sexual revolution. In Virginia, the Loving couple faced jail time for their illegal yet interracial marriage.
John: “On a separate note, there is no conclusive evidence that homosexuality is an immutable trait.”
Actually, there is plenty of evidence, it’s just that the anti-gay people ignore it. Even Exodus, the organization that claims to change you from gay to straight, admits that only a small percentage of people will stop being gay, and that any hope for changing from gay to straight is, at best, a lifelong “challenge.”
Homosexuality is immutable in the same way that heterosexuality is immutable. I’ve never met a gay person who says that being gay is a choice, and I’ve never met a straight person who says that being straight is a choice either. The fact that virtually 100% of the population agrees that one’s attractions are pretty much fixed is rather solid.
But that argument is so 1990s. The new generation, the one that is in their 20s and younger, don’t even care whether sexuality is immutable or not. For them, they really don’t care what floats your boat, and if two gays want to marry, regardless of whether they could marry someone of the opposite sex, is really immaterial.
As it should be. It’s no one’s business should I fall in love with another person.
August 4, 2010, 11:13 pmLarryWB says:
It strikes me that all the lawyers here are, rather amazingly, missing the crucial point – which is not social change or who favors gay marriage or does not favor it. The point is, the voters of California have spoken. Who is Judge Walker to overturn their decision on the grounds that he personally thinks it is irrational?
August 4, 2010, 11:15 pmThis seems to be a characteristic of judges out there, and it’s spreading. Shouldn’t questions like this (and abortion) be decided by the political process in the states, or by the people? There is rather obviously nothing in the Constitution of the U.S. about it; let the people decide.
I’m always surprised when I see lawyers failing to even consider this point. Are we that far beyond a federal system??
Orin Kerr says:
Dave writes:
Imagine that in 20 years, there are some social science studies suggesting that some people -some particular group — shouldn’t get married. A state legislature proposes a new law forbidding the recognition of marriage among this group of the population (amounting to about 3% of the public). In opposition to the new law, a Burkean conservative makes the argument that the legislature is moving too far, too fast: It should wait for more certainty about the issue before actually refusing to recognize the marriages of millions of people. I’m curious, would you argue that this argument against the new law was not only unpersuasive but actually irrational, on the ground that there’s really no evidence the new law would have an affect on the 97% of the population that is permitted to marry?
August 4, 2010, 11:18 pmRonald C. Den Otter says:
“In the face of this lack of genetic evidence, there have been forwarded alternative theories to support the claim that homosexuality is an “immutable trait”. Even this court does not make that claim (or I didn’t yet find it), and consequently makes no ruling that strict scrutiny applies.
In the absence of homosexuality as an “immutable trait”, comparison of sexual orientation to race are unwarranted, off-point and misleading.”
How about history of discrimination and political powerlessness? Those are the other two criteria traditionally used to determine whether a group of persons qualifies as a suspect or quasi-suspect class and is therefore entitled to a heightened standard of review. In the closing arguments, both sides spent a lot of time of these questions.
August 4, 2010, 11:20 pmSoup says:
Firstly, Prop 8 Amended the California state constitution, not the federal constitution, and this case was decided on federal constitutional grounds. The “Supremacy Clause” (Article 6, Clause 2) of the federal Constitution says that the federal Constitution binds state governments, presumably including state constitutions.
Secondly, here’s what “irrationality” has to do with Equal Protection. The Equal Protection clause of the 14th Amendment says that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” Generally, this means that states have to treat people the same.
But, of course, we know that states can treat people differently all the time, often for very good reasons. (States imprison convicted felons, but not those exonerated. States tax income at higher rates on rich people than on poor people. States give subsidies to corn farmers but not wheat farmers, etc.)
Even though it might be bad policy, we don’t usually think it unconstitutional for a state to subsidize corn farmers and not subsidize wheat farmers. But what if a state thinks that Methodist farmers should be subsidized, but Baptist farmers should not? We’d rightly be more skeptical of the state government’s motives.
Courts have come to the conclusion that, when it comes to Equal Protection cases, certain kinds of classifications are more likely to be violations of the principle that the government has to treat people equally. When government treats people differently based on the crop they grow (or income, or prior convictions, or whatever), historically, it’s usually for some good reason. But when government treats people differently based on religion (or race, or gender, or other such things), history tells us that it was often for a bad reason.
Thus, courts scrutinize laws differently based on what sorts of classifications they draw. If a law treats people differently based on race or religion, courts apply “strict scrutiny”, asking whether the law meets a “compelling government interest” by the “least restrictive means.” (Meaning that the government has to have an EXCEEDINGLY good reason for passing the law, and that there’s no less burdensome classification that can meet those goals.)
If, however, a law treats people differently based on annual income or prior conviction record, courts apply “rational basis” scrutiny, asking whether the law is “rationally related” to a “legitimate government interest.”
(Incidentally, classifications according to gender occupy a middle ground – so called “intermediate scrutiny.”)
So the first question to ask in this sort of Equal Protection case, is “What kind of classification is classification by sexual orientation?” Is sexual orientation more like race and religion, which would make the law presumptively invalid unless the government has a REALLY important purpose behind the law and has narrowly tailored the law to meet that purpose? Or is sexual orientation more like income or prior conviction status, which would make the law perfectly fine unless it’s not “rationally related to a legitimate government interest”?
The irrationality analysis comes in when the proponents of Prop 8 were advancing reasons why the voters approved Prop 8. If the connection between the purported reasons for the law and the actual functioning of the law is irrational, the law fails Equal Protection analysis, regardless of whether sexual orientation is more like race or more like income.
This is why the factual record becomes important. For example, the court looked at the evidence from the recent history of marriage rates in Massachusetts, and found that allowing same sex marriage would not affect the marriage rates of straight couples. If this statement is true, it becomes irrational for a state to deny marriage to gay men and lesbians on the grounds that the state has an interest in channeling straight couples into marriage.
August 4, 2010, 11:23 pmRonald C. Den Otter says:
Larry, the voters of California cannot (a) take away a fundamental constitutional right (b) enact laws that violate the equal protection clause. If the denial of marriage to same-sex couples qualifies as (a) or (b), then Prop. 8 violates the U.S. Constitution. Judge Walker may be right or he may be wrong, legally speaking, but surely, to reduce his decision to a personal viewpoint is unfair.
August 4, 2010, 11:26 pmAnderson says:
Who is Judge Walker to overturn their decision on the grounds that he personally thinks it is irrational?
He’s a judge, and the finder of fact in a bench trial. I am sorry to tell you this, but major decisions are reached every day by judges and by juries who “personally” think this or that, on the basis of the evidence presented.
On a separate note, there is no conclusive evidence that homosexuality is an immutable trait
According to Charles Murray, there is no conclusive evidence that black people aren’t inherently stupider than white people. I don’t know what you consider “conclusive evidence,” but it’s evidently a much higher bar than most people apply.
August 4, 2010, 11:28 pmBrianTH says:
It would be one thing if the finding was, “This will significantly change an important social institution, but I predict that change is unlikely to do any harm to society.” But the actual finding was more like, “There is no evidence this will significantly change an important social institution.”
In other words, before you can cite fear of the unforeseen consequences of a substantial change to an important social institution as a rational basis, don’t you at least have to provide evidence that what you are talking about would in fact be a substantial change to an important social institution?
August 4, 2010, 11:28 pmbadlaw says:
Because it is the only binding precedence on the subject at the SCOTUS level. It’s much more relevant than Romer or Lawrence, neither of which even claims to address the issue, and the latter of which expressly states it doesn’t speak to the issue.
Baker was a 14th Amendment case brought to the Supreme Court in which the Plaintiffs had no marriage right to go back to, no comprehensive CU/DP scheme to return to, no strong anti-gay discrimination statutes, no sympathetic (almost to the point of corrupt) legislature, or state Supreme Court to return to. And that case, much more dire than this one, was rejected.
I guess if we continue to ignore it, it will go away.
Like I said, this was a fraudulent decision.
August 4, 2010, 11:29 pmtscr7174@usyd.edu.au says:
Simply put I do not accept the rational basis test as good precedent. Certainly it’s enshrined in precedent, but it’s rather arbitary, baseless precedent.
Nothing in the equal protection clause itself, nor any general principles of law that I’m aware of provide any basis for applying a stricter test to race than sexuality, period. In my view Loving V. Virginia should be binding precedent with regards to same sex marriage. An ideal court would apply it so.
August 4, 2010, 11:30 pmOrenWithAnE says:
Orin, I think you have buried the crux of the argument in the last paragraph here.
The animating view of social liberals is that our society is the product of centuries of irrational unreason, mixed in with a few lucid moments. The history of humanity is not a pretty one — it is a long chain of horrific abuses going back to the beginning of time and slowing in pace only in the last half century. The idea that such a culture deserves deference as rational is, in light of this view, laughable.
The question, then, of whether it is rational for voters to “proceed with caution in social change” reduces to whether it is rational with voters to preserve irrational social structures.
August 4, 2010, 11:31 pmMark Field says:
That may depend on how one interprets the scope of the 9th C opinion (assuming it tracks Judge Walker’s). If it’s treated as deciding the issue for ALL laws everywhere, then presumably not. But if this case is unique to CA, then I’m not even sure there’d be a conflict in the Circuits.
As for Prof. Kerr’s argument, I’m not sure it does any actual work; isn’t it just a restatement of the fact that the ban was passed by majority vote? IOW, in what cases would his argument apply which do not apply to the “majority should rule” argument?
August 4, 2010, 11:31 pm1040 says:
i dont recall the constitution saying that rights are subject to majority vote.
August 4, 2010, 11:31 pmAnderson says:
Ted Olson’s comment is worth relaying:
Everyone oughta read this opinion. It’s long but clear and sets the facts forth that everyone in this country might think about. I’d challenge anyone putting out those kinds of press releases (speaking to NOM) to read this opinion and tell me what they disagree with and what they have left to say.
Incidentally, I had no idea that all those lolcats were actually expressing reactionary views. They seemed so cute!
August 4, 2010, 11:32 pmJohn Hamilton says:
In repsonse to several posters who find the pace of change in this area too slow or even “glacial”.
August 4, 2010, 11:32 pm.
The negative results that many believe will come from the adoption of gender-neutral marriage are not the sort of results that will manifest themselves for 10 to 20 years or more. This is unfortunate if it turns out that the concerns of those in favor of gender-based marriage are mistaken. But the damage to society is potentially great. If I am mistaken about this, please identify among the 200+ current nations that nation which has long prospered where gender-neutral marriage has been legalized.
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For example: Are children better off (we’re talking about ideally here) raised in a home led by one man and one woman than in other types of homes, and specifically in homes that lack either a mother or a father? Some would claim that this question has already been answered. I would say that the pool of children raised under such circumstances is far too small and the period of time to track the results far too short to reach any solid conclusions yet.
bee says:
OK writes: “Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.”
This strikes me as wildly exaggerated. Legalized same-sex marriage has not brought significant change to the places where it’s been enacted, except of course for the couples involved. Past civil rights decisions, particularly ones involving African-Americans – but even ones involving school sports – were much more widely-ramified.
August 4, 2010, 11:34 pmRonald C. Den Otter says:
That case was decided 40 years ago and wasn’t (really) decided on the merits. Do you really think that that decision settles the matter? Romer v. Evans and Lawrence v. Texas were decided in 1996 and 2003, respectively. Even the state didn’t rely upon Baker because their lawyers knew that it wouldn’t be treated as a precedent by anyone.
August 4, 2010, 11:35 pmBrianTH says:
I’m confused–when and why did this Burkean argue that the reason we should wait for more certainty is because this change might adversely affect the other 97% of the population?
The more straightforward (and defensible) Burkean argument is that the potential harm to this 3% is large, and social science isn’t particularly reliable, so we should wait for more confirmation of the claimed benefit before acting. There is no need for your Burkean to argue more than that.
August 4, 2010, 11:36 pmOrenWithAnE says:
I should add that I’m not saying that my above argument is at all dispositive for the purposes of interpreting the Constitution. Sometimes it is backwards looking (Glucksberg) other times it is forward looking (Loving). It is certainly not.
My point was only that social liberals are disinclined to think that it is at all rational to proceed with caution when changing cultural institutions descended from a largely irrational (and abusively so) past. It is injury enough, the logic goes, that gays were abused by society for centuries without adding the insult of claiming that a modern person would be rational to want to preserve that legacy.
August 4, 2010, 11:38 pmThrobert McGee says:
A point that the defenders of “traditional marriage” seemed oddly reluctant to emphasize — even though the availability of California’s “everything but the M-word” domestic partnership laws severely undermines the claim of the gay plaintiffs that they suffer some sort of hardship in the absence of same-sex marriage.
August 4, 2010, 11:40 pmCatoRenasci says:
The Emancipation Proclamation only dealt with areas in rebellion; Lincoln was well aware he did not have the authority to abolish slavery within the Union. Slavery was not abolished in states that did not secede until the adoption of the 13th Amendment.
August 4, 2010, 11:40 pmCornellian says:
On a separate note, there is no conclusive evidence that homosexuality is an immutable trait as opposed to a choice, or if you prefer a temptation.
The fact that the anti-SSM forces didn’t try to dispute the point speaks for itself. Would you acknowledge sexual orientation is at least as immutable as religion? as citizenship?
August 4, 2010, 11:43 pmOrenWithAnE says:
I would also like to know this and I agree that the data are not yet available. I disagree, however, that this is an argument against gay marriage because I generally believe that the burden of proof always favors expanding, not contracting rights.
August 4, 2010, 11:44 pmBrianTH says:
What evidence is there that gay marriages will significantly reduce the number of children who are being raised by straight couples?
The more obvious question is whether children who are already being raised by gay couples would be better off if those gay couples were married. If you want to allege a harm to some other children from gay couples getting married, you are going to have to provide decent evidence to support your causal theory.
August 4, 2010, 11:46 pmyankee says:
I think this is a great example of how when somebody says something is “clear,” that means it’s not clear. Significant to whom, and compared to what? The matter at issue in Perry is 100% symbolism. Domestic partnerships convey all the rights that it’s within the State of California’s power to grant, and under Strauss v. Horton gays and lesbians are constitutionally entitled to those rights. The only question is whether gays and lesbians are entitled to the label ‘marriage,’ or whether we should get a second-class label.
Granted, this is a bit of symbolism that many people, including me, feel extremely strongly about, but it’s still symbolism. I find it hard to label a dispute that affects nobody’s substantive rights as “one of the more significant questions of social policy of our time,” especially when it affects only a very small minority of the population. How can that possibly rank up with health insurance reform, a social policy issue that affects everyone and means the difference between life and death for some people and financial stability vs. bankruptcy for others?
The significance of the issue increases if you characterize it as “legal recognition of same-sex relationships” rather than “same-sex marriage,” but I don’t think the former framing is properly applied in this case. In view of Strauss v. Horton, legal recognition of same-sex relationships is no longer in dispute in California. Strauss could theoretically be overturned by an initiative constitutional amendment that banned domestic partnerships, but nobody is making an effort to put such an initiative on the ballot and it would surely lose if it made it on. Nobody is pushing replace the current California Supreme Court with justices who would overturn Strauss either (unlike e.g. abortion, where liberals would oppose virtually any nominee they thought would vote to overturn Roe and conservatives would oppose virtually any nominee they thought would vote to uphold it).
August 4, 2010, 11:47 pmJohn Hamilton says:
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August 4, 2010, 11:49 pmIf homosexuality is a choice rather than a trait, then any discrimination is against the behavior, not a group of persons.
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I am trying to select examples that are neither ridiculous nor offensive. I’ll err on the side of ridiculousness. A group of people who like to eat fatty foods are not a group are not a suspect or quasi-suspect class. They are just people who like fatty foods. Same thing, if it turns out that homosexual behavior is a choice. And as much as I know it pains some people, the jury is out on that question.
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Although I will concede that as far as the evidence presented at this trial, the judge was more than reasonable in finding otherwise.
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Nevertheless, I think it would be the height of foolishness to make fundamental changes in the nature of society based on a single instance of poor lawyering.
ORID says:
As a California voter, this result is like a punch in the gut and makes real all the activism complaints. I firmly believe that “society” didn’t simply conjure “marriage” out of thin air (I know for some or many this is radical thought). I would rather see government sanctioned marriage struck down completly. At the very least I thinkvI could accept the results of a majority of voters a lot better than a judge invalidating the democratic process. I know my reaction may seem cruel and bitter, but I am offended by the though of marriage being anything less than man and woman.
Logically, of course this result under the Constitution is the one that carries… the reversal of DOMA felt less personal than knowing a judge can strike the will of the people. I am quite interested in reading where this judge says marriage came from.
Venting this comment made me feel better. Of course SSM proponents are fighting for all the rights and priveledges that come from being legally recognized couples. Calling it marriage simply feels wrong and I thought the “civil unions” was a good way of allowing samesex couples the same rights and privledges without offending my sensibilities. Let’s just get to calling them all “civil unions” and allow folks like me to keep “marriage” distinct.
I will have to read the opinion and see why that is unconstitutional. Irrational as it might be the term “marriage” seems worth salvaging and even fighting for. I don’t want to forinvade peoples rights, but the state inherently can’t redefine a “sacred” term (except they can.)
August 4, 2010, 11:53 pminahandbasket says:
Surely you jest… The right of privacy and association, the right of married people to determine/control if and when they have children. Griswold lead directly to Eisenstadt v. Baird. You don’t know your basic constitutional law very well…
August 4, 2010, 11:57 pmbadlaw says:
What? This is absolutely ridiculous.
It’s still binding precedent since they haven’t overturned it. Neither Romer nor Lawrence overturned Baker.
August 4, 2010, 11:58 pmbadlaw says:
No, I’m not jesting. Where did Griswold cause a “sexual revolution”? What proof of that does Randy, or since you’ve decided to weigh in, you, have?
August 5, 2010, 12:00 amJohn Hamilton says:
Randy: I said there is no “conclusive” evidence that homosexuality is an immutable trait. Your argument against that proposition doesn’t even deny it. You simply show some evidence that is far from conclusive.
August 5, 2010, 12:01 am.
Whether my statement is “so 1990s” is a totally specious argument.
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Also, whether the younger generation doesn’t care whether sexuality is immutable or not is also completely irrelevant to the court case, although not to the eventual legalization by voters of gender-neutral marriage.
Randy says:
“The Emancipation Proclamation only dealt with areas in rebellion.”
And those areas had the vast majority of human beings who were in bondage.
John: “The negative results that many believe will come from the adoption of gender-neutral marriage are not the sort of results that will manifest themselves for 10 to 20 years or more.”
SSM have been legal for 10 years in some places. Surely, some sort of evidence would begin to emerge as a result. If there was, no doubt NOM would have presented it, but they did not.
So how long do we have to wait? 30 years? 50 years? And how would we know over such a long period of time that any evidence is a direct result of SSM?
Back in the 60s, many predicted that allowing condoms for sale freely would result in all sorts of horrible things, and they decried the decision in Griswald. Now, today, I grant there are lots of terrible things in society, but who today argues that any of them are directly and solely the result of condoms being freely sold in stores?
Furthermore, your assumption is that only bad things will occur from SSM, and you ignore all the good things. Surely, if children of straight parents benefit from having married parents, the same is true of children of gay parents. To deny these children the benefits of having married parents is a harm that can be quantified today, not 30 years from now.
Basically, your argument boils down to this: We have no idea what the results of SSM will be 50 years from now, but we are absolutely sure the results will all be bad. That, of course, makes no sense at all, and is no basis to deny a basic right to an entire group of people.
August 5, 2010, 12:02 amyankee says:
QFT. Even marriage itself was an unjust and oppressive institution for most of its history. People were forced into marriages with people chosen by their parents, sometimes at very young ages; a man could rape his wife (or, more commonly, wives); a woman’s property was controlled by her husband; women were effectively forced (by coercion or social pressure) to convert to their husband’s religion; a man could divorce his wife with barely any effort, but not vice versa; cheating on your husband got you ostracized, but cheating on your wife made you the subject of at most mild opprobrium; a man could beat his wife, and any laws against it were mostly unenforced; and so forth and so on.
Not all of those things have been true in all cultures at all points in time, and I doubt all of them were ever true at once anywhere. But marriage in virtually every culture, virtually everywhere, involved at least some of those evils, or similarly bad ones.
Fortunately, opposite-sex marriage in our culture today has been reformed so that such injustices are no longer present. I’m sure people can identify flaws in the current system, but they don’t rise to the same level.
August 5, 2010, 12:05 amBrianTH says:
Adherence to a religion is also a behavior. And yet discrimination based on religion is subject to strict scrutiny.
August 5, 2010, 12:05 amMark Field says:
I understood Randy to refer to this because of the suddenness of the change, not because it’s otherwise comparable.
Not quite. The VA statute imposed criminal penalties on (a) whites who married “colored persons”; and (b) “colored persons” who married whites. Statutes in other states were phrased differently; for example, LA barred Negroes from marrying Indians, and OK barred them from marrying anyone other than another Negro.
August 5, 2010, 12:07 amJohn Hamilton says:
But there is conclusive evidence that black people (without getting into the details of each and every individual) have physical attributes over which they have no control (Michael Jackson being the exception).
August 5, 2010, 12:09 amwallace says:
Homosexuals are one of the most powerful political groups in modern society. Indeed, they wield extraordinary power far in excess of their numbers. Less than 3% of the population is homosexual, yet they can command entire legislators.
Homosexuals as a group have organized lobbies, they serve in legislative capacities at the highest levels in the land, they sit on the Federal Courts. They infest the media and academia. They have the among the highest disposable income of any group of Americans. They have the highest per capita purchasing power. They are 4 times more likely to make in excess of $100,000 when compared to the average American.
Claims of political powerlessness are simply laughable. Absolutely absurd and a factual error. Indeed, the term CLEARLY erroneous comes to mind.
August 5, 2010, 12:09 amOrin Kerr says:
Yankee writes:
It has a daily impact on the lives of millions of people in the state of California. I think that makes it significant enough to raise the Burkean objection. (Perhaps I am irrational to think so, though.)
August 5, 2010, 12:09 amRandy says:
John: “Also, whether the younger generation doesn’t care whether sexuality is immutable or not is also completely irrelevant to the court case, although not to the eventual legalization by voters of gender-neutral marriage.”
Agreed. And since this thread is about the pace of social change, it is relevant. But feel free to disagree.
Badlaw: “Where did Griswold cause a “sexual revolution”? What proof of that does Randy, or since you’ve decided to weigh in, you, have?”
The Catholic Church wanted to limit access to condoms because if you had them, then you could have as much sex as you wanted and not worry about pregnancy. Previously, throughout all of human history, you had to be careful about how much sex you had, how you had it, and when, and all those considerations meant that you just didn’t have as much sex as you might like. Cheap, reliable and easily obtained contraceptives (including The Pill), changed all that. Now people could have sex primarily for pleasure instead of primarily for procreation. That was a sea change.
August 5, 2010, 12:10 amOrin Kerr says:
I have just deleted some comments on both sides that were extremely uncivil: If those commenters continue to be uncivil, I will ban them from commenting.
August 5, 2010, 12:11 amMark Field says:
Every single law the courts have ever struck down was passed by majority vote. There is no other way. If you think the courts never should enforce the Constitution, you can make that argument, but the system has worked this way for over 200 years.
August 5, 2010, 12:12 amJohn D says:
Your example fails. Studies have shown that children thrive in a loving environment created by a committed couple. Evidence supports that same-sex couples do at least as well at raising children as opposite-sex couples. Single parents do seem to have a tougher time of things. Do you propose seizing their children or forcing them to marry?
Do you have any more of these nebulous “what if” scenarios that allow you to ignore the real harms done to gay people by the unavailability of marriage? We deal with real harms on my side of the argument, not vaguely stated fears.
Bluntly speaking, privileging your vague fears over real harms is immoral.
August 5, 2010, 12:13 amAnderson says:
It has a daily impact on the lives of millions of people in the state of California.
How so? I mean, really: how so?
I’m reminded of my wife’s uncle in Sacramento, who complained a while back that he was going to move to the South because having gay neighbors down the street was bad enough, but now they could get married, and that was the last straw.
Unfortunately, the interest of family amity prevented me from asking just how having gay cohabiting neighbors with a legal domestic partnership was materially worsened by their being gay cohabiting neighbors who were legally married.
August 5, 2010, 12:15 amRandy says:
ORID: “As a California voter, this result is like a punch in the gut and makes real all the activism complaints. I firmly believe that “society” didn’t simply conjure “marriage” out of thin air (I know for some or many this is radical thought). I would rather see government sanctioned marriage struck down completly.
Thanks for your comments, ORID. When you say you felt like this was a punch in the gut, I am reminded of when I and my friends found out that SSM was repealed by voters — it felt like a punch in the gut. It was like saying that people still view gays as inferior, or that our relationships are as good or as loving as yours.
“At the very least I think I could accept the results of a majority of voters a lot better than a judge invalidating the democratic process. I know my reaction may seem cruel and bitter, but I am offended by the though of marriage being anything less than man and woman.”
If the majority of voters used the democratic process to ban interracial marriage, that should be respected by judges?
No one is forcing you to marry a person of the same sex. If you have children, you can even say to them that they must marry a person of the opposite sex or you will disown them. That remains your right. But you should know this: In the states and countries that now allow SSM, those who oppose it are still able to live their lives just as they have in the past. For them, nothing has changed.
“Venting this comment made me feel better. Of course SSM proponents are fighting for all the rights and priveledges that come from being legally recognized couples. Calling it marriage simply feels wrong and I thought the “civil unions” was a good way of allowing samesex couples the same rights and privledges without offending my sensibilities.”
It sounds like you are trying very hard to be fair to both sides, and I appreciate that. Thanks!
August 5, 2010, 12:17 amJames says:
Randy:
I want to respond to your examples of sweeping change occurring at once. I think you are misstating history.
1. By the time a woman’s right to vote was enshrined with the 19th Amendment 15 states had already extended voting rights to women. It was not all at once.
2. Brown and segregation. Only 17 states required racial segregation of schools. That was not a social change that happened all at once.
3. When the Civil War happened, there were 15 states that had slavery. 19 didn’t. Slavery did not end all at once.
4. The Loving decisions overturned Anti-miscegenation laws in 16 States, every other state had already done so.
There have been 31 votes over the last couple of years and in every vote the definition of marriage has been that it is between a man and a woman. I only want to make sure that the historical record is accurate. Personally, I don’t think that fundamental rights should be limited because changing them quickly would be disruptive to society. If same-sex marriage is a Constitutional right then it should be recognized and I don’t think the speed of the social change should be a consideration.
August 5, 2010, 12:17 aminahandbasket says:
The hardship that all same sex couple in the US suffer is the fact that the federal government, thanks to DOMA, refuses to recognize the same sex marriages and domestic partnerships that are available in a few states and DC. So, for example, when a same sex married couple in MA files their state income taxes in MA, they file together as married because they ARE married under MA’s state laws. However, when the same married couple files their federal income taxes, they must file separately as single individuals because the federal government doesn’t recognize their marriage.
If one of the spouses in a same sex couple is foreign born, the US citizen half of that couple cannot sponsor his/her spouse to become an American citizen. Of ten they must move to another country in order to stay together. Well known blogger Glenn Greenwald lives w/ his spouse in South America because of US anti-gay immigration policies.
Social Security benefits are not given to surviving same sex spouses of deceased partners.
Same sex marriage in the US is only a second class status.
August 5, 2010, 12:19 amChristian K says:
I wasn’t aware that divorce was such a new invention or single parents for that matter. My grandmother was raised by a single mom in the 20′s. That was 80 years and 3 generations ago. Also in life we are RARELY dealing with “ideal” situations, shouldn’t we also help out those in what may be a potentially less than idea situation?
I think one of the things that make SSM so divisive, other that general squeamishness about gays, is it really is an argument about family and what it means, which is vastly different for many people. We end up talking past each other, in this case not because implementing SSM would be particularly earth shattering, it just feels that way due to our different frames of reference. In California implementing SSM would actually be a very minor change, a change that most people would not notice and a change I might say has already occurred, there are 18000 of them in the state right now. We are really arguing about the roll of family, what it means to be a parent, the roll of women and men in our society and how that has changed in recent generations.
I don’t think it’s that SSM is happening “too fast” it’s that those other past changes happened too fast. We haven’t caught up to them yet. Single parents, divorce, adoption, these are things that aren’t settled. They haven’t entered the stage where they are tradition yet for most families.
August 5, 2010, 12:20 amAnderson says:
Homosexuals as a group have organized lobbies, they serve in legislative capacities at the highest levels in the land, they sit on the Federal Courts. They infest the media and academia. They have the among the highest disposable income of any group of Americans. They have the highest per capita purchasing power. They are 4 times more likely to make in excess of $100,000 when compared to the average American.
Not to mention their conspiracy to destroy Western culture, as demonstrated in the absolutely authentic book, Protocols of the Elders of Pottery Barn.
… I mean, really, if your spiel vs. gays sounds like you did a find-and-replace for “Jews” off a Stormfront.org post, that should tell you something.
August 5, 2010, 12:21 amRandy says:
Wallace: “They infest the media and academia.”
anyone who claims that a group “infests” something is making a comparison to vermin or pests. Clearly, you are deranged in your homophobia and your comments are cannot be taken seriously and are not worth reading, much less responding to.
August 5, 2010, 12:22 aminahandbasket says:
Makes ya wanna be one of us, right> ;)
August 5, 2010, 12:22 amOrin Kerr says:
Anderson,
There are 37 million people in California. Let’s say 5% are gay; that’s about 2 million people.
August 5, 2010, 12:22 amwallace says:
There is no such thing as “homophobia”. It’s a made up word designed to silence people that disagree with the homosexual agenda. It’s straight out of the Kirk & Madsen playbook.
August 5, 2010, 12:25 amJohn Hamilton says:
Religion was specifically singled out in the Constitution for protection. If you disagree with that, I recommend that you start a movement to repeal that portion of the First Amendment.
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The Supreme Court, or any other court that I am aware of, has not identified any other behavior for strict scrutiny protection
August 5, 2010, 12:30 amwallace says:
Again, straight out of the Kirk & Madsen playbook. Why are you being anti-Semitic? That’s what you are doing to even bring up Jews. It’s disgusting. Absolutely sickening.
Everything that I said is absolutely true. Homosexuals have enormous political power and wealth. There are homosexuals in city councils, State legislatures, in the U.S. House and Senate, on the Federal Courts, and in every other facet of government. Homosexuals were able to legislatively enact same-sex ‘marriage’ in several States. They have been able to pass numerous “hate crimes” bills and special protections for homosexuals. They are able to take a wedding Photographer to Court and have her fined 6,000.00 for refusing to photograph their “commitment ceremonies.”
Homosexuals have those who hold views different from theirs thrown out of college campuses and expelled from counseling programs.
This has nothing to do with Jews or your anti-Semitic ramblings. This has to do with whether or not Walker’s propaganda posing as “fact” passes the smell test. It clearly does not.
August 5, 2010, 12:30 aminahandbasket says:
Sorry, but my and your civil rights should never be subject to a popularity contest. There is religious marriage and there is civil marriage. Same sex marriage is a reality in ten countries, five US states and DC. This simply does not affect your life. The lack of marriage equality directly impacts my life.
August 5, 2010, 12:31 amRonald C. Den Otter says:
If it’s so ridiculous, then why didn’t the state just refer to Baker and rest its case? Why was so much time on both sides wasted when a single case decided forty years ago not really on the merits controls? You seem to be the only person here who thinks that Baker settles anything. Does that tell you something?
August 5, 2010, 12:32 amMark Field says:
Who are Kirk & Madsen?
August 5, 2010, 12:32 amJohn Hamilton says:
I disagree, there is such a thing as homophobia. However, it is a lot less prevalent than homosexuals would have us believe. It is even less prevalent in how homosexuals are actually treated or the voting choices people make.
August 5, 2010, 12:33 amAnderson says:
Okay, it has an impact on some % of 2 million gay Californians. Not an impact they’re likely to complain about.
But I fail to see the impact on the other 35 million, and if we’re talking sweeping social change, then 2 million really isn’t all that sweeping. It’s more like, um, 5% of the population.
It’s just really, really difficult to come up with a rational basis vs. gay marriage, when gays are already legally protected, allowed to cohabit, and can enter domestic partnerships. At that point, it’s like saying they can have ice cream sundaes like the straight folks, but NOT with a cherry on top, by god, because SOME things are SACRED.
August 5, 2010, 12:34 amEMB says:
Overall, the gay rights movement is surely the most significant social change of our generation. The change in the acceptance of gays and lesbians in our society is immense and ongoing, and will continue regardless of what the courts decide in this case.
Gay marriage is a “big deal” to many, yes, but mainly symbolically. The California legislature has already been fixing most of the specific inequalities that led to the original court decision, so as a practical, day-to-day matter there really will be very few differences if gay marriage is allowed again.
August 5, 2010, 12:36 amMark Field says:
Never mind — Googled ‘em.
August 5, 2010, 12:36 amAnderson says:
Okay, WordPress is failing my own personal rational basis test, because my comment won’t appear, but the program says it’s a duplicate comment. And god forbid that anyone here be deprived of any of my shared wisdom.
August 5, 2010, 12:37 amyankee says:
I think significance has to go beyond the sheer number of people affected. The magnitude of the impact has to be accounted for. If we restored the Bellamy salute as the customary gesture of respect for the U.S. flag, that would have a daily effect on the lives of millions of Californian children, but I don’t think it would constitute a significant change in social policy.
August 5, 2010, 12:40 amjsl says:
Religion is also a choice. And yet we wouldn’t dream of allowing a discrimination on the basis of religion, right?
Let’s put the tired choice/trait discussion to bed because in the end, it’s irrelevant. If it’s a choice, it’s one that looks deeply like religion – something incredibly important to the individual holding the belief and a choice that (even more so than religion) is unlikely to be made lightly or changed easily. And if it’s a trait then it looks deeply like gender or race – something that is immutable and central to someone’s identity.
August 5, 2010, 12:40 amRonald C. Den Otter says:
John Hamilton, I’m curious to know, because you think that the jury is still out on whether being gay or lesbian is a choice, what you think about this. Does everyone make a choice w/ respect to their sexual orientation? Or only some people? And are those “some people” only gays and lesbians? It strikes me as odd when people claim that being gay or lesbian is a choice –or at least it might be– because that implies that all persons make such a choice, which is clearly false. That means that only some do, right? And of “the some,” some choose to be straight and others don’t. Is that your view? If so, then there should be a lot of straight people out there who chose to be straight, right?
August 5, 2010, 12:41 amyankee says:
I cannot agree! For example, the impact of the gay rights movement pales in comparison to the effect of the Internet and mobile devices on the way people develop and maintain social relationships.
August 5, 2010, 12:46 amORID says:
Randy,
I was conflicted during the election. This thread is bringing all those out and amplifying them because the legal issues are more precise.
I really do feel strongly about the term, but also strongly that gays should get the same rights and priveledges. I simply can’t stand the state defining a term that traces back to the Bible. I have friends who feel a lot strongly anti homosexual.
August 5, 2010, 12:46 amOrin Kerr says:
Yankee,
I’m curious: Do you care about gay marriage? If so, why? (An if not, why are you commenting here?)
August 5, 2010, 12:51 amstrech says:
How is the precautionary principle handled? It strikes me as the same kind of idea – we can’t know fully what the consequences are, so we’ll play on the safe side.
While I think you’re right that a factual finding of no evidence of harm isn’t really a strong argument against saying a major social change could have unknown harms, to avoid being too vague it needs some anchor in a defined – if not necessarily specific, or yet proven – area. So the broader sweeps of the anti-gay marriage argument would apply (effect on straight marriage and marriage rates, the raising of kids, etc) but a more general idea (society would generally be negatively effected) would be too vague.
I’d go with a defined area because that way you can attempt to quantify the possible negative effects, or to challenge the assertion as unlikely. Both of which seem necessary to have a functional argument. The Prop 8 proponents argument presented here strikes me as unquantifiable – there’s no scope to know what the magnitude of the negative effects could be, so no way to weigh it against the intended positive effects – and impossible to challenge – a simple assertion of “there will be a negative effect” can never be disproved. “Marriage would be negatively affected” has at least a specific scope that can be used to both to weigh the possible effects (marriage has a certain level of importance in society) and the likelyhood of those effects.
August 5, 2010, 12:53 amBrianTH says:
If the proposed Burkean argument is that a change in the law that merely allows gay couples the option to get married may cause unforeseen harm specifically to gay couples (or is it all gay people?), then I think that needs to be fleshed out a bit more before it can be credited as a rational concern. Is the argument that maybe being gay is bad for people, and maybe giving this option to gay people will turn more people gay? That is probably what some people think, but are we really suggesting our Burkean has to consider those particular issues to be unsettled at this point?
On religious discrimination: I’m not opposed to constitutional prohibitions on religious discrimination. My point is simply that there is no generic rule that discrimination based on behavior can’t be subject to heightened or strict scrutiny. You would still have to make the argument in favor of doing so for the relevant class.
August 5, 2010, 1:00 amAguirre says:
Same sex marriage is not a big social change, except for the couples themselves and their families. How often do you hear news about the turmoil caused by same sex marriage in the states that have adopted it? You don’t, because it isn’t a big deal for the average joe. Once adopted, politicians suddenly find that campaigning against all the supposed harm it will cause is no longer a winning strategy.
August 5, 2010, 1:00 amBrianTH says:
By the way, I care about gay marriage because I sympathize with gay people who would like the option to get married, and I can see how that could benefit them. I could not honestly say that I would personally benefit, but I don’t see that as a reason not to care about others.
August 5, 2010, 1:06 amRandy says:
Wallace: “There is no such thing as “homophobia”.
There is no need to compare us with vermin. Please apologize.
ORID: “I simply can’t stand the state defining a term that traces back to the Bible.”
There are a lot of questionable sexual activities in the Bible — Lot having sex with his daughters, lots of rules regarding sex between men and women, and plenty of polygamy as well. If one regards the Bible as an instruction manual on how to regulate a society, we would have a very different society from what we have now, or you have to be very selective in how you read it.
“I have friends who feel a lot strongly anti homosexual.”
Too bad for them. I’m not gay just so I can irritate people like Wallace or your friends — I’m gay because I am. Just as Ted Haggard found out that being strongly anti-gay doesn’t make you straight, so too for those who hate gays.
Wallace: ” There are homosexuals in city councils, State legislatures, in the U.S. House and Senate, on the Federal Courts, and in every other facet of government.”
Very true. We are also your children, your cousins, your next door neighbor, and your office co-worker. Since we are everywhere, there is no need to discriminate against us, is there? So surely you agree that gays should be granted the same rights as everyone else — the right to have a job and not be fired for being gay, or to rent an apartment, serve in the military, get married, and basically do all the same stuff you do.
And since you aren’t homophobic, you would of course want us the full rights to participate in society as you do.
August 5, 2010, 1:07 amwallace says:
We have discrimination on the basis of religion, each and every day in this Country. In fact, that discrimination is now institutionalized in academia. Just ask Julea Ward, Jennifer Keeton, Elaine Huguenin, Christine Brody or Douglas Fenton how their religious beliefs are treated by homosexuals.
August 5, 2010, 1:08 amThrobert McGee says:
While the lack of federal recognition may indeed be a hardship for same-sex couples, that doesn’t seem to have much bearing on Perry v. Schwarzenegger, since California’s same-sex “domestic partnerships” and California’s same-sex “marriages” were both equally unrecognized at the federal level.
Perhaps, but even if the civilly-unioned “couplehood” of Adam and Steve has a second-class legal status relative to the married “couplehood” of Tarzan and Jane, it doesn’t follow that either Adam or Steve, as individuals, are second-class citizens relative to Tarzan or Jane.
August 5, 2010, 1:10 amyankee says:
I care a great deal, because of the substantive rights that gays and lesbians are denied in jurisdictions without marriage or civil unions (and in all jurisdictions with respect to federal law). I also think symbolism is important, and the symbolic denigration of gays and lesbians is repugnant. I’m also gay, so the issue affects me directly (or at least it will if I end up in a position to marry, as I hope to). But in the space of all issues of social policy I can’t justify the purely symbolic injustice of Prop 8 being of remotely the same order as, say, health care reform.
People sometimes care a lot about things that are objectively pretty insignificant, like sports teams. I’d put my interest in Prop 8 in a similar category: the emotional resonance the issue has for me far exceeds what I believe is the issue’s actual significance.
August 5, 2010, 1:13 ambadlaw says:
Aguirre, which institution(s) do you think would tackle that type of issue in the first place? Who’s going to rigorously look at marriage and divorce rates in MA and conduct interviews and review public school curricula and research cases for any pending litigation on SSM and churches to determine the actual effects of gay marriage?
And then, who’s going to report on the findings in a non-biased, non-partisan way?
People who are like, “well, the sky hasn’t fallen in such-and-such place and they legalized gay marriage” confuse me. Who the hell would tell you if it did? And would you believe them? The way our society and media and culture work, the only way to hear the “other” side of typically liberal conceits is from a far-right source.
If DADT affected union cohesion, if abortion was found to be harmful to women’s bodies in the long run, if gay parentage studies had massive flaws where there were obvious flaws in their parenting skills when compared with monogamous heterosexual two-parent households, or the negative effects of using marijuana…you might would hear about it from Limbaugh, or FOX News, or CNS News, or NewsBusters. But I doubt you’re going to see some expose on Dateline or 20/20 portraying the LGBT community in a mostly-negative, unflattering light.
People say all the Prop 8 campaign did was smear and lie about the effects of legal gay marriage. But, for the sake of argument, say their “smears” turn out to be true in 5 or 10 years. Do you expect the SF Chronicle to run a story like, “Whoo, boy were we wrong!” Are Chris Tingly-leg, Ed Schultz, Ms. Olberman and Mr. Maddow going to devote one iota of their show to cover a case in which a gay couple sues a church because it wont recognize their marriage, or a gay group goes after a church’s tax exempt status because of “hate speech”? No. Liberal bias is one thing. Liberal denial is something else.
August 5, 2010, 1:14 amChris Travers says:
First of all, I share your concerns about the specific opinion here. However, the judge was left with a very difficult task and one which he must have performed with admirable diligence and effort if only evidenced by the lack of [laughter] tags in the closing arguments when Mr Cooper said unintentionally humorous things.
Having reviewed the findings of fact, the evidence submitted, and the closing arguments, I am hard pressed to say that the state met it’s burden. However the state’s position in closing arguments was that this burden was so low that it was automatically met— no evidence even required, while the plaintiffs were asking for strict scrutiny. I have never seen a case where the state argued that it didn’t even have to submit evidence, or make arguments that nobody on either side of the issue could actually believe (procreation among same-sex couples, unlike opposite sex couples, being inherently responsible and thus outside the state’s interest in marriage).
So the judge was tasked with the impossible and naturally he failed. I think the judgement was right, but I think the conclusions of law were too broad.
I think a better basis would have simply been to ask the question: Has the state met its burden? If not, then this law should be struck down. That wouldn’t prevent a different version of the law from being enacted another time and possibly defended in court another time, but this time, the state has clearly lost.
This would preserve the deference to elected branches and electoral processes but still at least preserve some semblance of due process review. For the court to uphold this despite the record would IMO undermine this substantive due process guarantee.
August 5, 2010, 1:14 amwallace says:
I will not change the way that I speak on your account. You will not dictate to me the words that I use. If you choose to be offended by the words that I use, that is your problem, not mine. I think the fact that you are looking to be offended speaks volumes about your agenda.
Sorry Randy, you don’t get to define terms or set labels. You don’t get to tell me what constitutes “homophobia”, a word that was made up to silence people who disagree with your agenda.
You are following the Kirk & Madsen script to a T. It’s amazing how well you people do that. I have to give you that much. You never deviate from your talking points, and you follow the blue-print to the letter. Too bad that speaking to one of you is the same as speaking to all of you, since none of you ever say anything original.
I think that it’s time that we start using your own labels against you, for what you purport to apply to others, is merely a manifestation of your own inner feelings toward anyone who refuses to go along with your agenda. I’m not going to allow you to play your Kirk & Madsen game with me. You don’t have the right to set the terms of the debate.
August 5, 2010, 1:16 amtomemos says:
Badlaw, at this point I don’t even understand what you would like to see happen. You seem to honestly maintaining not only that a) the mainstream media (which is to say everything except the far-right media) is utterly unreliable, but also b) that even peer-reviewed university studies and highly-regarded experts in social science fields—which are what the plaintiffs used as evidence in evidence in Perry, not the San Francisco Chronicle, by the way (whereas the defendants used, as evidence, jack)—are completely unreliable. And if that is what you believe, what follows from that? What should courts rely on for evidence? Should judges just say, “No amount of evidence can convince me that gay marriage isn’t harmful, because you wouldn’t tell me if it was”?
It seems like you won’t be happy until we have a judiciary that bases its opinions solely on the pronouncements of party-run media. Instead of waiting for that to happen, I recommend you defect to Cuba, or East Germany circa 1976, if that’s the case.
August 5, 2010, 1:42 amOrin Kerr says:
Yankee:
You seem to be saying it’s incredibly important but that there are other issues you can think of that are more important (like health care). But I don’t think Burkean skepticism is only rational when the issue is reworking a large chunk of the economy.
August 5, 2010, 1:45 amOrin Kerr says:
Wallace, if you do not immediately change your tone and start being respectful to the other commenters here and the participants in SSM debate, I will ban you and delete every comment you have made here.
And Randy, tone it down, too.
August 5, 2010, 1:51 amHistory Punk says:
Yeah, this isn’t going to worsen Wallace’s insanity all. I am sure he’s mature and balanced enough not to launch his own lavender scare at the realization that there are gays in his family.
August 5, 2010, 1:57 amThrobert McGee says:
Speaking as a man who prefers corndogs to tacos, John, I would second your statement — but with the small edit indicated above. It’s a wee bit irksome when people treat “homosexuals” generally as interchangeable with “gay political activists.”
I insist on the freedom of individuals to be openly and happily and unapologetically homosexual without the assumption that they must therefore subscribe to the faddish political notions of the Rainbow Club™.
In practical terms, I maintain that I have an inalienable right to cohabitate sexually with another dude and to tell everyone in earshot that “God approves of our relationship and He considers us married” — but I don’t claim an inalienable right to get a same-sex marriage license from the state of Virginia, or a right to the approval of other people.
August 5, 2010, 2:07 amJohn Hamilton says:
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August 5, 2010, 2:10 amThis was a great question which caused me to write a considerable bit. And having done so, I’m going to leave it. But here is the basic answer to your question. In my opinion, there is no such thing as a person who is born homosexual. Everybody (and let’s not get into the idea of hermaphrodites, who are A) extreme outliers and B) in any case genetically either male or female)is born heterosexual, although some may have an underlying propensity to homosexuality just as we all have propensities for things that are not good for us. EVERYBODY IS HETEROSEXUAL WITHOUT MAKING ANY CHOICE. A series of poor choices can perhaps make someone homosexual just as a series of poor choices in other areas can create other out-of-control compulsions.
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Now onto my longer post, which you need not read in order to get the answer to your question. Already answered.
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Where to start? BTW, you asked. First, any non-coerced sexual activity is, of course, voluntary, aka a choice. Some of it is normal and healthy. Some isn’t.
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We all have desires to do many things. We all have desires to do some things that are not in the best interest of ourselves, others, or society in general. When we succumb to these desires, such is a poor choice that leads, in various degrees, to harm or at least a lessening of good.
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So I guess that I would say that when one chooses to use heterosexual desires in a positive way, that is a choice. A good choice. When one chooses to use sexuality in negative ways, which includes all homosexual activity, that is a choice. A poor choice.
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Because even heterosexual human sexuality is quite complex, it is difficult to discern exactly what activity is healthy and what isn’t. By health, I mean physical, spiritual, psychological, and social health (probably left out some aspects).
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In my opinion, it’s pretty safe to say generally that any sexual activity outside of marriage between a man and a woman is harmful to both (or all) parties.
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When someone engages in behavior that is unhealthy, that is a poor choice.
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Choosing to engage in homosexual activity is particularly harmful for a number of reasons.
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1) If engaged in exclusively, homosexual behavior precludes procreation. Given today’s reproductive technology, it is possible to conceive without engaging in heterosexual activity. At best, this purposefully creates a child who will not be raised by a mother and a father who love each other in the way that makes these people want to marry each other. A purposeful (and selfish) denial of the right to a loving biological mother and father who love each other.
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2) Choosing to engage in homosexual activity makes the creation of a heterosexual bonding less likely. This is even more true where one comes to believe that a homosexual bonding is just as fulfilling as a heterosexual one. Heterosexual bondings (assuming they are reasonably healthy ones) are simply far superior to homosexual ones. Sorry, folks. Men and women were created and/or evolved to compliment one another. Try as you might, you can’t change that.
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3) The obvious physical health issues that accompany homosexuality, particularly in males. I’m assuming it is unnecessary to explain these.
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4)Etc..
yankee says:
I think to some extent we’re talking past each other; I’m responding to your contention in the OP that SSM is “one of the more significant questions of social policy of our time,” which I think is quite false. It’s particularly false as applied to the purely symbolic question at issue in Perry. I also think your treatment of an “important” social change (your term) and a “sweeping” social change (Walker’s term) as the same thing is mistaken. Sometimes small changes are important.
Even same-sex marriage recognition in jurisdictions with no same-sex relationship recognition seems like a smallish (though important) change to me. The change on the government’s end is minor (rewriting some forms), the number of people directly affected is small (2% of the population) and the impact on society at large (as opposed to the now-married couples and their family) isn’t particularly large. It’s hard for me to see that as a “sweeping” change.
August 5, 2010, 2:16 amyankee says:
Evidence?
August 5, 2010, 2:23 amJohn Hamilton says:
I want to add to my last post that I am sympathetic to those who are tempted by or even succumb to homosexual desires/temptations. I don’t know what causes such impulses. Although I have OPINED VERY STRONGLY that noone is born homosexual, I don’t KNOW whether the cause of homosexual desire is a result of nature, nurture, or some combination of those.
August 5, 2010, 2:34 am.
We all have our temptations. And God knows I have my temptations and have not fared all that well with them. I seek not to judge anybody here.
Chris Travers says:
Count me in the category that says that Burkean scepticism is rational in general. Indeed our entire focus on precedence in law reflects this scepticism.
The problem is I don’t think it’s enough by itself to justify a statute. Certainly it’s important, and I’d argue that it’s one factor that should be weighed when determining whether the state has met it’s burden. If it was enough, then no statute could ever fail rational basis review if it remained unchallenged for a period of time.
August 5, 2010, 2:41 amJohn Hamilton says:
It seems to me that given the innate desire within every species to reproduce its own, and that the sex organs exist from an evolutionary and biological viewpoint primarily for that purpose, the default position must be universal heterosexuality.
August 5, 2010, 2:46 am.
The burden is on those who argue otherwise. I don’t think they’ve met their burden.
Throbert McGee says:
I’ll bet you can even empathize!
August 5, 2010, 2:48 amOrin Kerr says:
John Hamilton,
Please keep your comments relevant to the post. Your personal views of homosexuality are not relevant to the post.
August 5, 2010, 3:27 amPerseus says:
But the majority of California voters didn’t actually punch you–or any of the opponents of Prop. 8–in the gut or eliminate DP, so what’s the material harm (or were you likewise being a drama queen)?
Some of us do. After all, if Prop. 8 were about real animus, it would have eliminated DP and made it a felony for same-sex couples to cohabitate.
It’s not clear to me that the history shows us that good reasons are all that much more prevalent in the former than in the latter types of cases. It just appears that judges have simply decided that some policies are more worthy of their
August 5, 2010, 3:29 amsecond-guessingscrutiny than others.badlaw says:
First of all, I didn’t agree with the use of “experts” in this trial because, as someone stated, the fact that we’re deferring to “experts” in the first place means there is some debate surrounding the issue.
“Experts” can’t vouch for the rationale of seven million people, and the purpose of the courts isn’t to make sure the legislative process does the right thing. What is right? What’s wrong? Who knows? That’s why we’re able to have deliberative debate and not just a mere declaration of law by an executive, or in this case, a Judge.
My point is, supporters of gay marriage talk about the as-yet-unseen negative effects of gay marriage, no doubt trying to be cute, but they never stop to wonder exactly where that information is going to come from? MSNBC? New York Times? LA Times? CBS? Where? If you ask that question to a stranger on a law blog comment section, how is he supposed to answer it with stone cold facts? And you might say, “well, they shouldn’t allude to negative results if they can’t corroborate them”. I would say, arguing their beliefs and making people principally against them believe it isn’t the same thing. Social conservatives argued that no-fault divorce laws would ruin the institution of marriage. “What does one person’s divorce have to do with your marriage?”, as the argument went. Well, forty years later, we have a culture that’s quick to divorce and going on two generations of children growing up in fatherless homes, which of course leads to other social pathologies. Besides right-wing social-conservative Family-Research-Council James-Dobson types, who do you see link the former with the implementation of no-fault divorce? How many times do you see discussions about the effects of no-fault divorce played out in TV debates, long op-eds in national newspapers, or even academic debates? You don’t.
It’s too easy to be unprincipled in this debate, and I try not to be, but it’s obvious how this works. Perhaps FOX News would wade into this issue, but then it’s too easy for pro-SSM people to dismiss them as biased. Social science academics, who are largely liberal, wouldn’t wade into it for fear of backlash, since being an academic is about as political as being a politician these days. We’ve created a society where legitimate dissent with left-wing ideals is stigmatized from the get-go.
Social conservatives are the main ones who even engage these questions of the role and function of marriage in our society. They’re the ones who get upset about reports of 50% divorce rates and these newfangled innovations on marriage, like swinging couples and open marriages. They’re the ones who opposed no-fault divorce, and they’re the ones who hate how anti-father family courts have become.
It’s the social progressives who think marriage is an outmoded, patriarchal social construct meant to oppress women, and think these notions of traditional family are antiquated. They’re the ones who think these non-traditional couples are fine, and promote them, and promote cohabitation. The only time the Left makes any kind of stink about marriage is when it comes to gay marriage…as if “straight marriage” is AOK. I’ve often thought the Left really doesn’t care about marriage; they only care insofar as it gives them a chance to point out a sin of the Right…in this case their “homophobia”.
When you don’t care about something, you don’t care what happens to it. So, I think it’s disingenuous for people who are obviously in the tank for gay marriage to act as if they actually give a crap about proven societal detriments due to gay marriage. Because, really, they never cared in the first place. They didn’t grow up in a society where marriage was sacred…that’s why it’s so easy for people to toss off the procreation aspect of marriage so cavalierly. Because, it’s like, whatever. ANY argument that claims marriage has some social purpose beyond hedonistic satisfaction of the participants is dismissed by the Left.
That’s why there’s much more discussion about how people feel as a result of it being legal (or not-recognized), while the fallacious 1,138 legal rights bit gets thrown in for good measure.
August 5, 2010, 3:38 amBallchinian says:
You know, this is a day on which I really want to be happy for the folks who will now be allowed to wed here in California. Instead I find myself choking on the toxic levels of sanctimony contained in all these transparently phony paeans to libertarian anti-majoritarianism. Honestly: the same people who are, today, warbling about how civil rights shouldn’t be subject to popularity contests will go to the polls in November and vote enthusiastically for representatives who’ll do everything in their power to fold, spindle, and mutilate my right to own a gun.
I opposed Proposition 8, and I’m glad that GLBT people will finally have full and equal legal recognition of their marriages. I’ll be even more glad when SSM supporters embrace libertarian anti-majoritarianism in fact, rather than merely rhetorically.
August 5, 2010, 3:48 amtomemos says:
“Social conservatives are the main ones who even engage these questions of the role and function of marriage in our society. They’re the ones who get upset about reports of 50% divorce rates and these newfangled innovations on marriage, like swinging couples and open marriages. They’re the ones who opposed no-fault divorce, and they’re the ones who hate how anti-father family courts have become.”
They’re also the ones who opposed and often still oppose equal rights for racial minorities, religious minorities, and women. I see that being at least as pertinent here.
As for your claim that social conservatives are the only ones who are willing to “engage questions” about the effects of gay marriage: how is it, then, that they were not able to come up with the tiniest scrap of evidence that there **are** negative effects, at a time when some evidence to that effect would have been really useful to them? Something from some conservative or religious college or think tank–anything? Or to put it more succinctly, maybe I’ve got my biases and you’ve got yours, but why are my biases the ones that produce any data? You sound a lot like the Six Day Creationists who simply hold that the fossil records are completely unreliable.
As the rest of your post is invective and straw men, aimed at your own (frankly) paranoid vision of a Liberal Establishment that has a malicious agenda aimed at destroying our way of life, and has such control of the media and public discourse that it has basically made empiricism and good-faith debate impossible (talk about projection!), I have no response to make to it.
August 5, 2010, 4:02 amStephen Lathrop says:
The problems come when they command just parts of a legislator.
August 5, 2010, 4:36 amMissoulaMark says:
The amendments granting women & 18 year-olds the vote, & freeing the slaves were enacted by elected officials in Congress & state legislatures who were accountable to the people. If SSM supporters are so confident the future is on their side, why the rush to have it enacted by unelected federal judges? I can abide SSM rights created by elected officials, but I won’t abide being dictated to by a bunch of jackass lawyers.
August 5, 2010, 7:37 amAnderson says:
I am trying to think how to address Prof. Kerr’s question about how and why gay marriage “matters.”
To trot out the standard analogy, suppose that Virginia had reformed its laws and allowed interracial couples to enter into domestic partnerships, with 99% of the legal accidents of marriage, but still lacking the metaphysical and legal substance thereof.
That would properly have been struck down, not because it imposed any significant practical hardship, but because it would have been a deliberate insult to mixed couples. Deliberate, and gratuitous, given that the couples were effectively “married” in all but name.
Leaving aside the different legal basis re: gays, the issue seems to be the same in California. Having 99% accepted gays into society, California voted to deny them pretty much only ONE thing: getting “married” instead of “domestically partnered.” And as I’ve tried to suggest already, denying gays the cherry on top seems arbitrary and petty, and has no rational basis other than the mere desire itself to discriminate against gays. It’s discrimination for its own sake.
The impoverished arguments about “natural law,” tradition, etc. just go to show that, when a state has come as far as California, there is no rational basis for failing to take that final step.
That too is why, rightly or wrongly, I think the SCOTUS could affirm this ruling without finding a general right to gay marriage. A state like Mississippi that has no domestic partnerships for gays has taken far fewer steps towards their assimilation, and might be able to persuade a court it has a rational basis. (Wouldn’t persuade me but might persuade a court.) At least, a compromise ruling could so hold.
August 5, 2010, 8:08 amBrianTH says:
I’m still really unclear on the nature of our Burkean conservative’s argument.
Suppose a court was about to award a large monetary judgment to a plaintiff. Would our Burkean conservative say: Stop! Don’t do it! That money may ruin that plantiff’s life! Because if the only thing that is bothering our Burkean conservative is that having the option to get married may be bad for gay people, that seems pretty equivalent to me.
And if our Burkean conservative is worried about something else–well, again, I think our Burkean conservative at least need to explain why that something else is actually in play, even if with unknown consequences. Suppose our Burkean conservative argued: gay marriages may cause the sun to stop shining! We just don’t know! I don’t think we would credit that argument, and I think the basic point of the trial and findings in this case is that ultimately the proponents of Prop 8 weren’t doing substantially better than that.
August 5, 2010, 8:26 amCatoRenasci says:
One of the most interesting aspects of this entire discussion is the absolutely unquestioned assumption that we are progressing inexorably in the direction of greater and greater liberty (especially for homosexuals) and that things cannot and will not change. For a group of mostly libertarians (??) and post-modernist liberals, most commentators here sure seem to be naively addicted to something close to a “Whig” theory of history.
If you look at the larger world, and even at the United States, there are examples of sustained resistance to “progress” in this and other matters. The growth and spread of radical – one might almost say fundamentalist – interpretations of Islam, which punishes homosexuality as it does apostasy, with death, is only the most obvious. Just because young people currently favor homosexual rights, doesn’t necessarily translate into adult voting majorities – over time people change their minds on things like taxes and government. If everyone who was liberal in their youth in the ’60s and ’70s were still liberal, you would have only a tiny minority of conservatives today. Yet, this is manifestly not the case.
Historically, there have been numerous periods where matters of morals and ‘rights’ were more or less strictly construed and where periods of open morality (at least by contemporary standards) were followed by periods of much more strict interpretations.
While I personally think homosexual marriage is a bad idea, I would not be uncomfortable with having it made legal by the political and legislative process – much in the way slavery was abolished, first in individual states, and ultimately with the amendment of the federal constitution. Likewise, women’s sufferage was gradually accepted in more and more states, and ultimately, through the states adopting a constitutional amendment. Even segregation was not something that a majority of the American people as a whole supported, only to have it snuffed out overnight by judicial fiat: there was controversy over its adoption in response to Reconstruction, and it would never have become as widespread as it did become had it not been sanctioned by the US Supreme Court in Plessey, which is the reason decisions like Brown and Loving were necessary – it was correcting a judicial sanction that had short-circuited the political process. Even then, de jure segregation was not widespread outside the South.
My suspicion is that nothing good will come out of this ruling in the long run. This will divide the country even more than has Roe, but with far more states willing to see the federal constitution amended to permit them to define marriage as they please than there will be states opposed to such an amendment.
August 5, 2010, 8:46 amMark Buehner says:
mmmm…. you’re gonna get some arguments there. Segregation in the north took a different face- mainly because blacks and whites hadn’t been living in such close proximity to begin with. Look at cities like Chicago or Boston and the ‘black neighborhoods’ and ‘white neighborhoods’ still exist and have always existed. There may have been no laws to keep blacks out of white restaurants and schools, but they weren’t needed (a baseball bat being a more immediate remedy). Hence the later remedies such as the school busing movement, for instance.
The argument that racial integration was in fact quite popular in the north at the time is not nearly so cut and dried… and, particularly given the insight that many of the actions were aimed at the specific institutional racism of the South and did little to affect the rest of the country and their methods of segregation.
August 5, 2010, 9:28 amMark Buehner says:
Let’s assume I don’t (which is ridiculous, I happen to be conservative with a heavily libertarian bent). Does that remove the requirement for you and your fellows to demonstrate any shred of evidence that there will be societal detriment, particularly to heterosexual marriage?
I’ll play ball with you for a minute and pretend everyone supporting gay marriage (or to mind mind- getting government out of the business of sanctifying marriage at all and instead simply implementing a contract open to any two adults of sound mind on who gets to pull the plug and inherit their partners crap) care nothing for the health of society as a whole. Even were that the case, you would still be required to demonstrate some evidence that gay marriage will cause damage. I’m less interested in motives than in principle. Can you show any evidence of why we should err on the side that is discriminatory?
August 5, 2010, 9:37 amORID says:
Randy,
Sorry I couldn’t continue discussion last night. Let’s focus on the whole “state defining religious terms” aspect.
As a hypothetically, let’s say Prop 8 was a ballot initiative on the term “Jesus”. Let’s say that “Yes on 8″ position was that “The state of California shall define ‘Jesus’ as a a historical figure who lived between 5 and 30 BC, and claimed to be the Messiah, etc”. Now let’s say that the “No on 8″ position was that “The state of California shall define ‘Jesus’ as a historical figure who founded the Islam religion, California shall not recognize ‘Jesus’ as the central figure in Christianity.”
Would that be constitutional?
August 5, 2010, 9:51 amCatoRenasci says:
The argument was not that racial integration was popular in the North, but that de jure segregation was not the rule in the North, and that much of the civil rights movement was based on enforcing old legislation and on enacting new legislation, on convincing a majority of Congress (ultimately responsive to a majority of the voters) to pursue greater racial equality as a national policy. Remember that Brown addressed de jure segregation, not de facto segregation. The long-term fight against segregation was a complex process involving both judicial and political elements. Absent the legislative enactments in the various civil rights bills, I doubt that the courts would have gone much beyond outlawing de jure segregation. Indeed, attempts to extend Brown to cover all defacto segregation (such as crossing district lines) have foundered in the absence of de jure segregation.
August 5, 2010, 10:02 amMartinned says:
It might be if Jesus was a legally relevant term used in statutes.
I’m intrigued though as to how this came up, since marriage is so obviously not a religious term. Unlike your Jesus example, this casehas no establishment clause aspect whatsoever.
August 5, 2010, 10:09 aminahandbasket says:
August 5, 2010, 10:18 amAnderson says:
That too is why, rightly or wrongly, I think the SCOTUS could affirm this ruling without finding a general right to gay marriage.
… Wrongly, as Patty pointed out to me on the “facts don’t matter much” thread.
August 5, 2010, 10:20 amMarcus says:
“First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.”
For me, the one question that should resolve the entire “significant social change” argument is: Is the social impact of allowing same-sex marriage greater than, equal to, or less than the social impact of the past 40 years of high flying, rampant divorce rates?
August 5, 2010, 10:23 amMark Field says:
I disagree on your factual point here — in my experience, liberal youth may have been more prominent in the ’60s and ’70s, but conservatives were much more numerous.
That said, I agree with your general point that social changes are impossible to predict and the tide can reverse far more easily than most people think.
August 5, 2010, 10:27 aminahandbasket says:
Wow. No one chooses to be attracted to another person. Your attractions CHOOSE you. Ask any junior high school boy who gets a spontaneous erection when a pretty girl walks by in the hall. Were you able to control that biological reaction? Did you choose to have an erection? It happens to the gay junior high school boys, too, when they see a boy to whom they’re attracted.
You cannot choose your attractions. Yes, you can choose whether or not to act on those attractions. But if you have to quash a natural attraction to a same sex peer, well, then, you need more help/support than you’re going to find here.
August 5, 2010, 10:31 amOrenWithAnE says:
Then why did you vote (presumably) to further enmesh the government in it?
Just as a series of poor choices can make someone a Methodist. That does not at all bear on whether we ought to treat them any worse for it.
August 5, 2010, 11:15 amnoseeum says:
“First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect.”
I think you’re wrong about this. Sure, it is sweeping to the gay people who are allowed to get married, but to the rest of us it changes nothing. Has Massachusetts changed at all since gay marriage was legalized?
And that’s the judge’s point. Gay people live together. Gay people have kids. From an outsider’s perspective, very little will change if gay people are allowed to marry.
The defense tried to argue that all of these terrible things could possibly happen, and that’s always been the argument, but that argument holds no water. It works on commercials or in speeches in front of people who agree with you, or on news shows that are forced to turn any debate into “one side vs. the other side, who’s right? YOU DECIDE!” let you spout your viewpoints without any pushback, but it doesn’t work in court.
Nothing really strange happens when gay people marry. And any court that looks rationally at its effects has to conclude that same thing.
August 5, 2010, 11:39 amB-Rob says:
That is the judge’s point: when you strip away discriminatory animus as the basis for the statute, there is nothing left to support it. Ergo, since animus against a discrete and insular minority is, as a matter of law, insufficient basis for a punitive statute like this, then SSM opponants lose.
August 5, 2010, 11:43 amB-Rob says:
This is the problem: we now have gay marriage in a few states. If the anti-SSM folks could trot out a parade of horribles from those states, they would. In this case, when it was time to “put up or shut up” on evidence that SSM really was a dramatic sea change for straight marriage such that it should be barred, they provided no evidence to support the point. What else was the judge supposed to do? They could not even pass the rational basis test when, in fact, he could have required them to meet a strict scrutiny standard.
August 5, 2010, 11:56 amRandy says:
John : “I seek not to judge anybody here.”
And yet you do. You state very clearly that homosexuality is the result of “poor choices.”
Homosexuality isn’t a result of actions, rather, it’s the other way around. We are attracted to people of the same sex (not that we find every man attractive, far from it. Just like you, we have our types). Then, having found a person attractive, we can act on it or not. If we never act on it, we are still gay. We can in fact marry women, have sex with women, but if our attractions run towards men, we are still gay. We can make all the “right choices” in life and still be gay.
If it were a matter of choices, then why is there such a failure rate of the so-called ex-gays?
Orin: My apologies. When I get called names, I tend to lose it, but I shouldn’t take the bait. I won’t respond to Wallace any longer.
August 5, 2010, 12:34 pmFederalist Paupers » Blog Archive » Fact: Same-Sex Marriage Is Awesome says:
[...] Same-Sex Marriage Is Awesome Orin Kerr points out a particularly weak portion of the Prop. 8 ruling. The judge made the following finding of fact: [...]
August 5, 2010, 12:46 pmRandy says:
Badlaw: “Social conservatives argued that no-fault divorce laws would ruin the institution of marriage. “What does one person’s divorce have to do with your marriage?”, as the argument went. Well, forty years later, we have a culture that’s quick to divorce and going on two generations of children growing up in fatherless homes, which of course leads to other social pathologies.”
You are correct, Badlaw. But what was the alternative? Why did so many people press for looser divorce laws in the first place?
You are assuming that everyone was happily married and that most marriages were perfectly fine and everything in marriage was terrific, and then divorce laws came along and ruined everything. Not so. Many people were trapped in bad marriages, and that ruined lives. And it wasn’t good for the children either. No one said that looser divorce laws wouldn’t change the institution — of course it would. It would obviously result in more divorces! But that isn’t necessarily a bad thing — if you are in a bad marriage, it’s much better to get out of it than stay in. Don’t agree? Just ask Newt or Rush, or Larry David, who are all divorced many times.
So what’s the alternative? Tighten up divorce laws? I don’t see any popular support for that. In fact, Ireland prohibited divorce until fairly recently. Surely they looked at the US and other countries and saw the problems that you see as well. Guess what? They still voted to allow divorce, and yes, people are getting divorced now in Ireland as a result. Good or bad? I don’t know, but the people want it.
It’s the same thing with SSM, but not really. Divorce shot up as soon as the laws were implemented. We’ve had SSM now for almost ten years in many places, and so far no changes at all. So IF there is a detriment to marriage, it is at best rather minor. And yet the benefits are quite clear to those who want to get married.
August 5, 2010, 12:48 pmRandy says:
Badlaw: “Are Chris Tingly-leg, Ed Schultz, Ms. Olberman and Mr. Maddow going to devote one iota of their show to cover a case in which a gay couple sues a church because it wont recognize their marriage, or a gay group goes after a church’s tax exempt status because of “hate speech”? No. Liberal bias is one thing. Liberal denial is something else.”
We don’t live in a perfect world. So what we try to do is do the best for the greatest good, generally speaking. Perhaps you are correct — but then you don’t hear about the man who killed his girlfriend’s 18 month old son because he wasn’t acting “manly” enough. (True story, just came out). Fox News won’t report on how the effects of homophobia ruin people lives, and not just gays. Rush and Sean won’t report about the incidents where gay couple who lived as married couples for life were denied hospital visiting rights because they didn’t have the right paperwork with them, or the surviving spouse lost everything when the other died. (Yes, even when they have a will, they can be contested by the decedent’s family and you end up losing everything to legal bills).
I could go on and on, but you get the picture. Fox News and the conservatives outlets are just as biased against gays as the liberal media is for them. (And I disagree they are in our pocket, or always have been. whatever).
I share your concern about marriage, and I think most people do. Gay people are asking for marriage just to ruin it, despite the propaganda. We want it precisely *because* it is so successful, and we want to make it work for us as well.
Marriage itself isn’t perfect, and it has changed over time. Not too long ago, marriage for love really wasn’t the reason to get married — economic reasons prevailed. The higher up you went the social scale, the more your marriage was arranged by your parents. (With the aristocracy, this was almost always the case). Life expectancy was shorter, so if you were in a bad marriage, you just had to wait — one of you would likely die soon. Then you quickly married again, anyone, because you needed the economic support. Often times, you had a spouse for economic support, and a mistress for your dalliances.
This is the truth about marriage throughout history. If you start with the assumption that marriage is a lifelong commitment that begins in your teens or early 20s, lasts until death in your 70s or 80s, involves no adultery whatsosever, and is based entirely upon love and not economic issues, where the husband rules the roost and the wife is obedient, and divorce isn’t an option, you are describing a fairy tale. It’s a fantasy that has no basis in reality, even if there are some people who actually achieve that. (You raise the issue of patriarchy in marriage. I know plenty of couples who have happy successful marriages in which each person is treated equally. Does that mean they are destroying the institution of marriage?)
But to require that would exclude most of the population, because the vast majority of couples cannot meet such a high standard. So we are left with two options: Either limit marriage only to those who can meet this standard, or change your idea of what marriage is.
If you truly want to strengthen marriage, then don’t hold it to a standard it can’t possibly meet, and never did. If you really think that by force of law, religion and custom, you can keep your fantasy alive, just look to places like Ireland and Chile and other places that really tried to keep it going, but ultimately failed. They all opted for divorce; they opted for the reality of today’s life.
But if you really want to uphold those impossible standards, then do so — don’t have sham marriages. Divorce should be outlawed. Insist that the Ted Haggards and Larry Criags get divorced — all gay man or woman should be prevented from marrying anyone. Evidence of any adultery should result in automatic jail. Put into law that when the husband makes a decision, the wife must obey or else she goes to jail. Prove that you intend to have children and fertile enough to do so, and if you don’t have children, put them in jail for failure to procreate.
Of course, this is ridiculous. My point is that you can’t force people to respect something that is impossible to attain.
August 5, 2010, 1:10 pmValentino Rossi says:
Call me confused, but how can the impact of P v. S even begin to compare to that of Roe v. Wade?
August 5, 2010, 1:14 pmMichael Ejercito says:
It would be a complete dereliction of duty for the Court not to mention Baker.
There is one factor to consider. This case, if it reaches the Supreme Court, will almost certainly be decided alongside similar cases, including cases where same-sex couples do not have the privilege to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” .
There is a possibility of a decision where the Supreme Court or a Circuit Court rules that Baker permits states to deny marriage licenses to same-sex couples, but has no issue on whether or not same-sex couples are entitled to the privilege to choose one’s life partner and enter into a committed and officially recognized relationship with the same benefits, qualification, and duties as marriages, and thus rule that same-sex couples have that right.
August 5, 2010, 1:29 pmChris Travers says:
If the recent federal cases regarding federal benefits and state-recognized SSM (on the basis of states rights) are affirmed, the harm would be the denial of federal benefits regarding marriage.
I think there is a question of harm. However, I also think that the state very badly mismanaged this case leading the judge down the road he went down. The larger question IMO is what the appellate court should do with the case. One option is to make broad Constitutional pronouncements about exactly how the rational means test works, and then note that the state didn’t meet its minimal burden here and so the initiative is thrown out. Another option would be to make broad Constitutional pronouncements about the right to marriage and affirm on that grounds. However, IMO, the fact that California argued the case badly shouldn’t be a reason to deny other states a right to argue it better.
August 5, 2010, 1:33 pmChris Travers says:
This is wandering off topic, but I favor tighening divorce laws by adding additional procedural requirements. For example, I think the following framework is close to ideal:
1) Assume a 50/50 split of property and debts in the marriage.
2) Provide clear defaults on child support and joint custody absent clear arguments or agreements to the contrary.
3) Extent waiting periods for divorce for a full year unless the a full agreement is reached on exactly how to resolve everything, in which case, the waiting period is only four months.
4) In a contested no-fault divorce, remove the doctrine that says that contesting a no-fault divorce is by itself an irreconcilable difference. Allow such a breakdown to be contested.
the goal of this really should be to provide legal hurdles to divorce such that reconciliation becomes possible rather than to simply trap people.
But the evolution of no-fault divorce actually is fairly close to the question at hand which is the pace of social change and the rational basis test. I would argue that society is still grappling with these issues and will do so for a long time. The standards will evolve. The point though is that the legislature, rather than the courts, get the main right to control the issue. Certainly if a state wanted to end no-fault divorce, the legislature could do so and I don’t think the court should just say “no rational basis.”
But what does this have to do with rational basis? I think that the pace of social change is relevant but only indirectly. Social change means the legislatures will pass new laws and some of these will eventually leave old laws dangling where their original rational basis has been abandoned by the state as a goal, much less a legitimate one. I think it’s the responsibility of the courts to help trim these laws and prevent their enforcement, but again, it’s not just because society has changed, it’s because society has changed and this has been manifested in new laws passed.
August 5, 2010, 1:47 pmptt says:
Thanks for the correction. I was aware of BvN but was focusing on the first time a gay couple GOT a marriage license (later revoked).
There’s something very different about this parallel. SSM is the culmination of a change in society that began over 140 years ago, i.e. the acceptance of gay people as not diseased, not mentally ill, not in service of the devil. The “social science studies” for that began in 1860, so your example would at least have to involve a period of 100+ years to be similar.
Societies conjured marriage out of human experience, long before any human mind even considered the possibility of religion.
August 5, 2010, 1:58 pmMichael Ejercito says:
This is true.
On appeal, other states should be able to file amicus curiae briefs.
Of course, in the meantime, other people might file similar challenges in other states.
That case has yet to be adjudicated.
And it may very well be adjudicated to require federal benefits to be available to same-sex couples in some form of officially registered family relationships. (Although the courts would have to figure out how the reasoning behind the anti-bigamy cases do not control.)
There is one question.
Almost all of the arguments in favor of SSM focuses on tangible benefits like inheritance and hospital visitation. And yet, these benefits could be provided under a different name.
So the core of the argument is the name used. And marriage does have historical and traditional roots. One of the motivations for SSM (as opposed to SSC or SSF) is the public acceptance of homosexual relations.
August 5, 2010, 3:29 pmBoonton says:
But why is it “a significant social change”? Because Fox News has a lot of hysterical people yelling about it? I’m not really comfortable with courts accepting claims of ‘radical change’ that depends entirely on people’s emotions. If a policy change has no impact on existing marriages and a ‘finding of fact’ says it will cause no change on existing marriages it doesn’t seem like a radical change to me from an objective point of view.
Now consider a proposal to establish polygamy. Existing marriages would be radically changed in that they were entered into with the understanding that one’s spouse couldn’t legally add a third person to the mix. Even marriages where neither side opts to add a 3rd partner could be said to be impacted since the threat of adding someone is now an option (“better start pulling your weight around here or I’ll add a 3rd one who will!”) I would say objectively this is a radical change even if it happened to pass with ho hum press coverage.
August 5, 2010, 3:37 pmptt says:
Sounds suspiciously like a “special right”. Thought you folks opposed that sort of thing.
August 5, 2010, 4:03 pmRonald C. Den Otter says:
I disagree w/ everything that you said above but I appreciate the clear answer. Do you give any weight to how the vast majority of gays and lesbians claim that they were born that way? I’ve never met a gay or lesbian person who thought that he or she had chosen his/her sexual orientation. I also think, based on what you said above, that we have different definitions of what it means to be gay or lesbian. If you’re a man, and you have sexual desire for other men, then I would say that you’re gay or bisexual, even if you don’t act on those desires.
August 5, 2010, 4:06 pmRonald C. Den Otter says:
Btw, even if California did a poor job of defending Prop. 8, I still think that interests that a state normally advances in defending its bans on ssm are very weak. So weak that they may not even survive rational basis.
August 5, 2010, 4:08 pmJohn D says:
Of course you feel that way. I am merely predicting that you will hold that same view when SCOTUS fails to mention Baker in their decision. I think it will be viewed as not germane.
Hey, an “officially recognized relationship with the same benefits, qualifications, and duties as marriage”? Sounds good to me. You do know that the governor of Hawaii just vetoed a civil unions bill because it was too close to marriage. You do know that organizations like NOM have recommended nothing more than “reciprocal beneficiaries,” which could be taken up by any two unrelated persons, and give none of the benefits of marriage. You do know that the supporters of Prop 22 opposed domestic partnerships in California as being too close to marriage.
Since opponents to same-sex marriage have consistently opposed a separate-but-equal status, I really can’t be diverted from the fight for marriage equality. If I’m going to be opposed, then I might as well fight for what I really like.
You, however, since you don’t think gay people should have access to marriage, are free to start fighting for this. Get all the other opponents of same-sex marriage to go along with you, and wrap up this package of “benefits, qualifications, and duties” with a nice bright bow.
If you could deliver this, you’d take all the urgency out of the campaign for same-sex marriage. We’d have the rights and there’d be nothing to fight for anymore. Just one problem:
You can’t deliver this.
August 5, 2010, 4:31 pmMichael Ejercito says:
Not all of us folks opposed that.
Why is this a significant change?
In fact, there is no evidence that the practice of polygamy in Utah changed existing marriages in New York or Massachusetts back in the 19th century. The Supreme Court cited that polygamy “tended to destroy the purity of the marriage relation” (Davis v. Beason) but no proof had been submitted that it actually did.
And similarly, marriage is impacted because there is the threat of husbands or wives leaving the marriage to “marry” someone of the same sex.
If you think that is impossible, you have never heard of bisexuals.
I give no weight to their claims.
It is possible that there is a genetic component, and it is possible that environmental factors and life experiences shaped their sexuality. But there is no proof it is fixed from birth.
August 5, 2010, 4:35 pmJohn Hamilton says:
@Ronald C. Den Otter.
August 5, 2010, 4:39 pm.
I’m not going to block quote everything to reply to you. Too flippin’ long.
.
I’m also going to be quite brief out of respect for Orin’s request earlier on this thread that I stick closer to the thread topic rather than my personal views regarding homosexuality.
.
So, to briefly answer your question, I agree that it is reasonable — and a lot less cumbersome language — to refer to a man who is attracted to other men even if he doesn’t act on those attractions as gay.
.
This concludes my discussion of my personal views on sexual orientation on this thread or any other Volokh thread where I can address the topic at hand without getting into those views.
helene edwards says:
Though I’d like the fruits to lose, looking at the overall arc of gay rights it’s hard to say MSM is a dramatic change, since it’s actually incremental if we’re honest about the relaxations that preceded it. E.g., in 1969, what was the problem? supposedly cops harassing gays just wanting a peaceful cocktail (Stonewall). So OK, the cops knocked it off. Next, prohibitions on public sex. So Nixonian. So by 1980 at latest they were mostly gone (as Walker Percy once noted, just visit SF’s Buena Vista Park, behind the tennis courts). Then AIDS strikes, and the Reagan administration spends billions, culminating in drugs that now render AIDS “chronic.” But that wasn’t enough, we had to sacrifice truth too, so we all agreed to pretend that “everyone is at risk,” though we all knew we really weren’t. Anyone who didn’t agree had to lose their job. In view of all this, MSM would have to be considered a cosmic entitlement.
August 5, 2010, 4:42 pmJohn Hamilton says:
Oh, heck. One more thing. Yes, Ronald, I do give weight to the statements of gays and lesbians that they were born that way.
August 5, 2010, 4:46 pm.
To quote Kramer upon his renewed vow of silence. “Now!”
yankee says:
Such people do exist, though there are very few of them; see, e.g., queerbychoice.com. I don’t know how gays and lesbians would know they were born that way either; nobody remembers what they were like at birth and babies don’t experience sexual attraction anyway. Half the time, a gay identical twin’s identical twin is not gay, so the “fixed at birth” theory is hard to sustain, at least in the general case.
Of course, “fixed at birth” and “choice” are not exactly the only alternatives; for example, it could be fixed by environmental factors early in life. A first language is completely environmental, but after eight years old or so it’s fixed and immutable.
August 5, 2010, 5:06 pmMichael Ejercito says:
I have stated on this blog and other blogs and Usenet that I have no problem with same-sex couples having equal rights under a different name.
Rush Limbaugh had publicly supported civil unions.
And it would be a complete derelection of duty for the Supreme Court to omit Baker v. Nelson when Baker was a decision where the Supreme Court dismissed, for want of a substantial federal question, an appeal claiming that denial of marriage licenses to same-sex couples violate the 14th Amendment’s equal protection and due process clauses. Dismissals for want of a substantial federal question constitute a decision on the merits. (Hicks v. Miranda)
So?
If you want to know why she vetoed the bill, ask her.
If you want to know why Nebraska banned civil unions? Ask the people who drafted the amendment.
It is dishonest for you to lump me in with them, to claim that because I agree with them on one issue, I agree with them on all issues.
All opponents?
Actually, I have a neutral position.
And Rush Limbaugh has a favorable position.
August 5, 2010, 5:13 pmbadlaw says:
What are you talking about? Show me ANY proof that social conservatives oppose “equal rights” for racial minorities, religious minorities, and women.
For a couple of reasons: 1) that’s a subjective standard. “Negative effects” to social conservatives might not even bump the liberals incubating this issue. Like I said, we don’t have a general concept of “negative effects” that we’d hold ourselves to; 2) it hasn’t been long enough for any meaningful social science data to come out of areas where it has been legal, and I’m skeptical any non-biased data would come out it even after 10-15 years; 3) socons understand that the state of marriage in this country isn’t “good”, and they can look to changes in marriage policy, as well as cultural and media narratives, that they believe contribute to the erosion of marriage. Any and all “evidence” is arguable, so it’s very easy (and convenient) for you to not get any of it if you really don’t want to. There’s no objective source that will tell you “gay marriage DEFINITELY has damaged the state of marriage”.
And you sound like an idiot. Most of this doesn’t even make any sense. How seriously would you (or anyone else) take social science data from, say, Pat Robertson’s college?
Then what was this you just typed? Don’t try to dismiss my point because all you can do to counter is act like a defense attorney. Argue that the “liberal establishment” actually cares about the concept and prosperity of marriage in our society. I don’t want to hear about some overly specific example, make a broad argument.
The N/8 campaign wonders why the “smears” worked in Prop 8…it’s because many voters don’t trust the gay marriage movement. They don’t see other liberals questioning them, they don’t see any of their motives questioned, they don’t see any of their arguments challenged. And when someone from the other side points out gaping logical holes, it’s dismissed as paranoia, irrationality, or hatred. But like I said, most of you don’t care about the “tiniest shred of evidence” that suggests gay marriage is bad for society. Why would you?
August 5, 2010, 5:13 pmMichael Ejercito says:
There could be environmental and genetic factors.
But homosexuality can not be explained by “fixed at birth (or earlier)” any more than it could be explained by “a single choice”.
August 5, 2010, 5:16 pmyankee says:
Very true. We don’t know the mechanisms of sexual orientation formation in either direction; we don’t know why sex hormones usually produce sexual attraction to members of the opposite sex, for example.
August 5, 2010, 5:22 pmPlugInMonster says:
Rush Limbaugh was RAGING today, so was Medved and Hannity. Their true hateful bigotry came out in all it’s glory today! Somehow I think a majority of Americans are for universal civil rights and will punish the GOP for their naked bigotry!
August 5, 2010, 5:26 pmbadlaw says:
In a way, yes. Why ask a question for which there is no answer you will accept, because you manifestly reject the premise itself? Why should people burden themselves trying to answer it for you? And then, who’s to say you would care if there were negative effects in the first place? It’s not like you guys aren’t above ranking the issue. If you think two men and two women marrying is good, you could think the positives outweigh the negatives.
…which is patently false reasoning, because there is no requirement for couples to even get a marriage license if they don’t want one, and civil documents (i.e. living wills) aren’t exclusive to marriage. This isn’t some libertarian-get-the-government-out-of-my-life initiative. This is a group of people pulling out all the stops for the government’s blessing of their union.
This proves my point. Traditional marriage isn’t discriminatory just because it doesn’t accommodate one type of couple. Traditional marriage is no more discriminatory to gay couples than gay marriage is to polygamous couples. Traditional marriage isn’t affirmatively “gays can’t marry” (unless, of course, you’re only concerned about marriage as it pertains to whether gay people can marry, and not the broader understanding of marriage itself, which is what I said in this post); traditional marriage is “between a husband and a wife”.
August 5, 2010, 5:28 pmbadlaw says:
Hmm. I don’t think you have room to get uppity about evidentiary debate when the Plaintiffs argued that Prop 8 is unconstitutional because of how it makes them feel. That’s every bit as innocuous as anything Prop 8 defenders argued.
August 5, 2010, 5:33 pmbadlaw says:
Because over half the states have voted against it.
August 5, 2010, 5:38 pmOrenWithAnE says:
There are a large number of benefits that accrue to the married that cannot be created by contract or living will. Survivor benefits, adoption preference, hospital visitation rights, testimonial privilege, issues regarding taxation, tenancy by the entirety just to name a few.
Pulling out all the stop for the government to bless their union equally with other unions.
August 5, 2010, 5:38 pmbadlaw says:
So what? Subsidy doesn’t create a mandate. It just makes them covetously opportunistic, if I’m being harsh about. Not to mention “hospital visitation rights” don’t exist, just like “walking-on-the-sidewalk rights” don’t exist.
But they’re still begging for the state’s blessing, not for the government to leave them alone. Thank you for agreeing with me.
August 5, 2010, 5:47 pmPlugInMonster says:
I don’t consider the government a blessing about anything.
August 5, 2010, 5:47 pmPerseus says:
Since that is a big “if”, the material harm is only potential. Of course, my point was that people like Randy can’t be taken seriously when they snidely dismiss the supporters of Prop. 8 because SSM supposedly doesn’t affect others in any “material” way while they themselves flew into hysterics after its passage even though there’s virtually no material difference between DP and marriage in the state of California (i.e. they crave the immaterial good of public recognition).
August 5, 2010, 5:52 pmOrenWithAnE says:
Fair enough, although “opportunistic” hardly seems appropriate when one asks for a benefit already granted to others.
I would, of course, be perfectly fine with the government revoking all the above (and those I neglect to list) from married couples.
The phrase is colloquial. The reality is that hospital promulgate rules regarding visitors — rules that distinguish between spouses, relatives and strangers.
Alternatively, they could revoke those blessings from others. Either arrangement is acceptable.
August 5, 2010, 6:21 pmLex Luthor says:
It’s absolutely certain that absolutes should be avoided. So, pragmatism and individual rights must be balanced.
To that end, assume that the homosexual population is a mere 3% in California, and assume further that only 50% of that 3% will look to marry soon. Perhaps such occurrence will not rise to the concern that would trigger a rational basis “implementation worry.” BUT.
Does this opinion allow ANY man to marry ANY man? Any woman to marry any woman (if otherwise qualified)? In other words, what is to stop two heterosexual men from deciding that there are numerous short term advantages to their marrying and thus heading off to the courthouse? Surely the number of heterosexuals exceed 3% of the total population. And the number of those heterosexuals who might have the lightbulb flash today or tomorrow, or next month, will increase.
Is it irrational to worry about this and to worry about how to deal with this potential problem?
I tend to agree that the “take it slow” argument deserves weight and can be rational. But, there would seem to be a problem of circuity that one would have be mindful of.
August 5, 2010, 11:26 pmt de gowin says:
Regarding Walkers decision, the one IMPORTANT point that remains suspiciously absent is this: that 7,000,000 million California voters decided TWICE in LEGAL elections that marriage is defined as a union between a man and a woman. The Supreme Court of CA upheld it 6:1. Even since that time the gays have been conducting a mass temper tantrum because they did not get their way. So what do they do? Go find an old, ugly extremely radical gay judge who in essence has told 7,000,000 that they can go to hell.
The point is, not whether one is normal or gay. The issue is that the votes of millions and millions of voters have been thrown away because one person doesn’t like the rules. That is not democracy, that is dictatorship. No matter whoch side of the fence one is, since when does the majority in a democracy not matter. When does the votes of 7,000,000 hard working decent law-abiding Americans become garbage? Is it because one gay judge is smarter than 7 million people? Is it because one ugly gay judge is better than 7 million people?
The question really becomes: Do you want to live in a dictatorship or a democracy? Do you want your vote to matter or have we decended into the slimy slope of extremist mob rule? Who wants to live in a country where a dictator tell you that you don’t matter. In addition, the gay movement has may be dancing now, but the backlash from millions of normal Americans who have been bitch slapped by this gay judge will not tolerate this. The hatred with absolutely grow between the two side with violence being the only possible answer like with any war between good and evil. This is our country, and it has finally been torn to shreds, leaving all of us more vunerable than ever to attack and destruction since we are not certainly united. This bias and unbalanced judge has brought the wrath of millions of angry, frustrated and digusted americans by throwing aside their votes and telling all of us that we don’t matter and that our rights don’t matter. that a small extremist group of homosexuals can DICTATE to the majority.
August 6, 2010, 12:16 amBoonton says:
Michael Ejercito
1. Polygamy was not available in NY or Mass, it was only available in Utah which was on the frontier edges of the country, not an easy trip back then. Even there it wasn’t available unless you had achieved position in the Mormon Church to be allowed to have multiple wives. In short, while polygamy briefly existed in the US it had high barriers to entry.
2. The measure is not impact but structure. Seemingly small things like a gradual extension of lifespans and women entering the workforce can have radical impacts on things like divorce rates. Likewise there’s no real way to know what will or will not drive dramatic sociological changes. In terms of structure polygamy would be a radical change. You just have to think of how such a policy would be implemented. For example, consider a marriage of 3 people where 1 person leaves. Is the marriage automatically dissolved (like a business partnership) or does it automatically continue with the 2 remaining people? Can a person married to 5 other people divorce 1 but not the other 4? Etc. To date no one has demonstrated how SSM causes any of the legal functioning of marriage would change either for existing or new marriages.
2.1 Radical changes can be made but no impact is seen. Its possible to imagine, for example, that polygamy would be enacted but only a tiny handful of people engage in it leaving most marriages looking exactly like they did before.
Also keep in mind my statement was a question. What makes a proposal a ‘radical change’? Simply because it is controversial? Because people get upset about it? People got hysterical over a proposed Mosque that was near the WTC site but in terms of law its nothing radical, very old school application of property rights & freedom of religion and lots of Fox News hours devoted to screaming protestors doesn’t alter that. If ‘radical change’ is an important factor in legal cases its good that a somewhat objective definition be supplied.
This is not a change to the marriage itself. In order for a husband or wife to marry someone else of the same sex they must first divorce their current spouse thus ending the marriage in question.
yankee:
Since the general incidence is something like 1-5% a 50% rate of being gay if your identical twin is also gay is actually pretty good evidence that something ‘fixed at birth’ is going on.
Badlaw
I wasn’t aware that states issued blessings, unless maybe you’re talking about Vatican City. I’d say states should limit themselves to simply issuing marriage licenses which is a recognition of a contract between the couple, not a ‘blessing’. To say the state has ‘blessed’ your marriage simply because you were issued a license is as silly as saying the state has endorsed your get rich quick plan because they let you charter a corporation.
August 6, 2010, 9:15 amOrenWithAnE says:
Again, there is a long list of State-granted bonuses that come with that contract.
August 6, 2010, 9:47 amBoonton says:
maybe but so what, that’s not a ‘blessing’. Incorporation has ‘bonuses’ too.
August 6, 2010, 10:13 amHugo Mendez says:
A parody of Justice (Walker), (not to be taken seriously).
U.S. District Court for the Northern District of CA, San Francisco, Olsen (Ted) v. Brown (Jerry) (2015)
…Moral disapproval alone is an improper basis on which to deny rights to poly partners (Polyamory, from Greek πολύ [poly, meaning many or several] and Latin amor [love]) is the practice, desire, or acceptance of having more than one intimate relationship at a time with the knowledge and consent of everyone involved, Wikipedia) and polyandrists (Polyandry (Greek: poly- many, andros- man) refers to a form of marriage in which a woman has two or more husbands at the same time (See Wikipedia). The evidence shows conclusively that Proposition 88 enacts, without reason, a private moral view that poly marriages are inferior to opposite-sex and same sex marriages
Finding of fact 55. Permitting poly individuals to legally marry (enter into consensual, ethical, or responsible non-monogamy, Wikipedia) will not affect the number of opposite-sex and same-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages and same-sex marriages.
…the evidence from ancient Greek history shows beyond debate that recognizing the right of poly persons to marry has at least a neutral, if not a positive, effect on the institution of marriage and that poly marriages would benefit the state. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples and polygamists will remain unaffected if the state ceases to enforce Proposition 88.
August 6, 2010, 10:57 am. . .
California has no interest in waiting and no practical need to wait to grant marriage licenses to poly marriages. Proposition 88 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.
yankee says:
It shows that sexual orientation has a large genetic/prenatal component, not that it’s fixed at birth. They’re not the same thing!
I don’t think anything hinges on “fixed at birth” vs. “determined by a combination of genetic/prenatal and postnatal environmental factors.” What’s much more important is that it’s unchosen and (almost always) immutable.
August 6, 2010, 11:52 amOrenWithAnE says:
And the State must justify any discrimination in the issuance of those licenses.
August 6, 2010, 12:24 pmBoonton says:
Hugo
The problem with the poly analogy is that marriage simply is not structured as an institution to accomodate more than two people today. It’s not just that the state ‘denies recognition’ to polymarriages, its that the state simply has no provisions to accomodate polymarriages.
For example (and I’ve pointed this out before), in a three person marriage if one person divorces do the other two remain married or is the entire marriage ended requiring the remaining two to form a new two-person marriage? Does adding spouses to a poly marriage require all partners already in the marriage to consent? A majority? Are members of a poly marriage considered married to each other? (i.e. in Mormon polygamy the man was married to multiple women but the women were not considered married to each other). We have various examples of polygamy both in history, in sci-fi and as speculative hypotheticals but no obvious ‘version’ of polygamy with which current marriage structure can seemlessly be integrated into it on the grounds of addressing ‘discrimination’ against poly-marriagers.
In contrast SSM offers no such integration issues. How does divorce work under SSM? Just as it does today. How does inheritance work? Lawsuits, testimony in criminal trials, ownership of property, wills and estates, and so on? Just as it does today. Marriage as it exists in the law today has no structural barriers to SSM but it has major ones to polygamy. Like it or not this sinks the “if SSM then polygamy” argument entirely.
August 6, 2010, 12:46 pmJoe Blow says:
“the evidence from ancient Greek history shows beyond debate that recognizing the right of poly persons to marry has at least a neutral, if not a positive, effect on the institution of marriage and that poly marriages would benefit the state.”
You forgot to mention evidence from Muslims, fundamentalist Mormons, and men with multiple “wives.”
The tendency to “sow wild oats,” cheat, commit adultery, and have multiple sex partners is a genetic, evolutionary, trait at par with homosexuality. Opposite sex marriage is designed to control that genetic tendency to sow wild oats. Though it is couched in the language of “rights,” same-sex marriage is essentially designed to domesticate homosexuality and curb its excesses. Same-sex marriage is thus a conservative development.
August 6, 2010, 1:01 pmBoonton says:
What’s unrecognized is that marriage has changed dramatically in law and custom over the ages. Poly marriages might have been part of marriages institutional legal structure in past ages when there were well defined male and female roles in marriage. Mormon polygamy, for example, worked off an older system where marriage was a set of male and female roles. How did property work? The man owned the property. How did divorce work? The law defined male and female rules regarding divorce. Polygamy was simply taking the female role and sharing it among multiple women rather than just one. Under that system SSM would be problematic as the system would lack a way to assign roles. For example, if the man was assigned the role of owning and managing property, how would a marriage of two women handle property in front of the law? In fact the old system could only handle polygamy because women were assigned next to no legal roles in marriages. A poly-marriage of two men and three women would have broke the system as how could a court decide who owned property if the two men disagreed????
What the poly-analogists don’t get is that SSM works because marriage law has no gender roles. But a two person relationship has different dynamics than a three or more person relationship. Old law got around that by basically treating women in a marriage as zeros. Add as many wives as you want and you don’t get any of the legal headaches that adding a single man would cause. This allowed, for a brief time in a limited geographical area, for a certain type of polygamy to exist partially in the US legal system.
August 6, 2010, 1:13 pmHugo Mendez says:
Boonton,
I fear your argument is, pardon me, parochial and insular. So in your book a lack of “state provisions” trumps equal protection for poly marriages. A few years ago, the state had no provisions to accommodate gay marriages and civil unions. When the law was changed in Massachusetts, bingo, the state made accommodations.
Look around man! How does South Africa, with its “model, liberal constitution” accommodate poly marriages? (The president of South Africa, Jacob Zuma, has multiple wives). How does Sharia (Muslim law accommodate) poly marriage in the so-called Muslim world? The state can always make provisions to accommodate marriage as the need arises.
August 6, 2010, 1:15 pmHugo Mendez says:
Boonton,
“Old law got around that by basically treating women in a marriage as zeros. Add as many wives as you want and you don’t get any of the legal headaches that adding a single man would cause.”
Times have changed! Your argument falls flat on its face if a woman of means like Carly Fiorina or Meg Whitman or Hillary Clinton marries two or more husbands and prior to doing so, signs solid pre-nuptial agreements with them individually and severally! Thousands of lawyers would gladly take on that job–for a fee that would be calculated based on the number of partners entering into the polymarriage!
August 6, 2010, 1:28 pmBoonton says:
Hugo
I fear your argument is, pardon me, parochial and insular. So in your book a lack of “state provisions” trumps equal protection for poly marriages. A few years ago, the state had no provisions to accommodate gay marriages and civil unions. When the law was changed in Massachusetts, bingo, the state made accommodations.
I think we are mixing up the difference between the terms ‘access’ and ‘accomodate’. No provisions were needed for SSM as SSM works exactly as marriage works in the legal system. The question was only wehther or not the state could/should exclude SSM from accessing marriage. Marriages aren’t given equal protection, persons are.
In terms of poly marriages, your problem is that legally a poly marriage would have to be a different institution than today’s legal marriages are as the law would have to figure out how to handle poly marriages. Unlike advocates of SSM, you’re not really making a case for access for poliers to poly marriage you’re making an argument that there’s a right to demand the state invent non-existant social institutions on the fly. Compare corporations to communist communes. Some people would like to form communes but there are few legal structures available but there’s a huge body of law and expertise about forming corporations. Commune wannabes have to either try to jerry rig non-commune institutions like non-profit corps and contracts into a structure that works or advocate forming a structure in law to accomodate their needs. But it doesn’t quite work to say they are being denied access to corporate law or partnership law or contract law. This is why the poly argument against SSM never moves beyond the half joke phase.
August 6, 2010, 1:34 pmL says:
Heh, you said it, not me.
I guess in reading the opinion you missed the part where the judge explains that gender has become unimportant in the laws of marriage. There was a time when different legal meanings – different rights and responsibilities – attached to the term “husband” and “wife.” It is no longer so. There was a time when a marriage did not fit within the legal framework of family law unless it had exactly one man and exactly one woman. That is no longer so. The requirement of opposite gender is nothing but a vestige of those times, and its maintenance is motivated by nothing more than animosity and fear.
In contrast, today‘s marriage laws require no more or fewer than two persons. A plural marriage today does not fit within the legal framework of family law. Yes, marriage laws could be changed to accomodate plural marriage, but marriage laws (other than the threshold opposite-sex requirement) already accomodate same-sex marriage, even though same-sex marriage is still not allowed in most states.
Does this make bans on plural marriage constitutional? I don’t think so. I don’t really have an opinion on whether this type of discrimination is constitutional or not (lean yes), but if it is, I don’t think it is for this reason alone. The point is – Judge Walker’s reasoning cannot be applied to plural marriage in the way you’re trying to do.
The other problem with this argument is revealed when you examine its bare form:
1. If bans on gay marriage are unconstitutional, then bans on plural marriage must be unconstitutional.
2. Bans on plural marriage are obviously constitutional.
3. Therefore, bans on gay marriage are constitutional.
A valid argument, sure, but not sound. Premise 1 is wrong, as has been explained. But if premise 2 is correct, you actually need to explain why without just letting it go unstated.
August 6, 2010, 2:14 pmBoonton says:
I’d say the issue is that there’s no ‘ban’ on plural marriage that needs defending. Rather there’s a huge number of possible types of plural marriage that could be law, but aren’t. For example we could have a New Agy type plural marriage as envisions by free love hippies from the 70′s, but we don’t. We could have old school one man multiple wives plural marriage from Muslim or fundamentalist Mormon cultures, but we don’t. We could have one woman multiple husbands as in the sci-fi novel from Heinlen (Moon is a Harsh Mistress I think), but we don’t.
The equation of SSM to plural marriage mistates reality. SSM is the current marriage we have. ‘Plural marriage’ is a catch all term for a near infinite number of possible marriages we might have but don’t, many of which are not consistent with each other. Those who argue for SSM are arguing for access to something that currently exists. Those who say SSM implies plural marriage are arguing for something that currently doesn’t exist. As a legal case they have the added burden of telling us which, out of the thousands of possible types of plural marriage styles, is mandated by their reasoning and why?
August 6, 2010, 2:48 pmJohn Hamilton says:
Judge Walker says that there is no longer any difference between the rights and responsibilities of partners in marriage based on gender. As far as the law can control, yes. Nature has her own opinion. So far I haven’t seen any men take on the rights and responsibilities of carrying a child in his womb and giving birth.
August 6, 2010, 3:25 pmMichael Ejercito says:
So true.
The 14th Amendment does not protect people’s feelings.
Some people will fully accept same-sex couples even if they do not have the privilege of entering into a committed family relationship.
Some people will have contempt for same-sex couples whether or not they are recognized as “married”.
Society’s opinion of same-sex couples is wholly irrelevant to the legal issue.
Even if same-sex couples should have those benefits and privileges, why would it matter what they are called?
No reason that I have heard as to why society should expand the definition of marriage to include same-sex couples explains why a particular name must be used for same-sex couples.
That is one of the reasons Perry should be overturned.
Why would this burden be so substantial as an argument against it? States allow recognized business groups with three or more partners.
And why would the threat of adding a third spouse be substantialer?
And Reynolds v. United States and Davis v. Beason do not appear in the decision.
If it was a conservative that convinced Richard John Baker to file that suit in Hennepin County district court, then I can understand the reason for using a “rights” angle.
Promoting same-sex “marriage” to domesticate homosexuals would have been rejected by almost all homosexuals.
That is not germane to the legal issue.
If gender is no longer important, it once was.
And if the historical and traditional definition of marriage is unconstitutional because gender is no longer important, what happens if gender becomes important again? Does the historical and traditional definition of marriage become constitutional? Adopting this legal reasoning would not settle the issue, as people would file suits arguing about the importance of gender to uphold or strike down the historical and traditional definition of marriage.
Rather, what is germane is the original public understanding and relevant case law.
And that is irrelevant to the applicability of the 14th Amendment, for the reasons I describe above.
B. Daniel Blatt makes an excellent analysis of this case . And he pointed out something interesting.
August 6, 2010, 4:21 pmL says:
That’s a pretty good point. The ban on plural marriage is basically the requirement that two people getting married have to be unmarried beforehand. If a court were to strike that down, it would allow a form of plural marriage that almost no one would find palatable: A married person could marry another person without the consent or even knowledge of his/her first spouse. And the potential of harm to first spouses from this is great enough to meet rational basis review, I think.
If (big if) a court ever decides that the constitution requires some form of plural marriage, it will have to kick it to the state legislatures to enact (with all deliberate speed) statutes that reform family law to conform with the decision.
August 6, 2010, 4:42 pmLarryWB says:
Yes, I understand that. The problem is, there’s nothing whatever in the Constitution to make path A a valid argument. Therefore, as was done in Roe v. Wade, the judge has to construct a new “right” out of a long chain of reasoning to justify the use of the 14th Amendment (path B).
August 6, 2010, 4:47 pmYou may notice that many of the comments, who here seem almost unanimously in favor of Judge Walker’s ruling and are suspect for confirmation bias, rave about Judge Walker’s sweeping agreement with arguments that were preponderantly supplied by pro-gay-marriage advocates. That is what I meant when referring to his personal opinion. He found the limited body of “facts” compelling, just as a previous judge found auras and penumbras indiscernible to others. These are fragile foundations on which to establish a new federal constitutional “right” in the teeth of expressed public opposition.
Obviously the whole notion that the federal courts have the right to overturn the expressed will of CA voters rests on the justification of gay marriage as a constitution right, not on whether gay-ness is inherited or popular or unpopular or anything else: if it is not a constitutional right, the court has no business getting involved at all.
When you go back and read the decision with that in the forefront of your mind, it’s a weak argument. In fact, I think the federal government has no business getting involved with marriage at all, gay or otherwise, but I guess that’s an “extremist” view these days.
Michael Ejercito says:
Yes, but, assuming the Supreme Court overrules Reynolds v. United States and Davis v. Beason, possibly on the basis that they contradict the original public understanding of the constitutional provisions they interpreted, or else finds that the case is distinguished sufficiently from Reynolds and Davis, what would give them a rational basis for striking down a ban on plural marriage even in cases where all partners unanimously consent?
August 6, 2010, 4:47 pmL says:
The way things are is not germane? The way things were and are no longer is germane?
What are you talking about? Give me a hypothetical. A state revives dower and curtesy, and restricts dower to women and curtesy to men? Maybe. A state revives the system under which married women cannot own property? Yeah, that would do it, if that law had a ghost of a chance of withstanding intermediate scrutiny. I’m having trouble coming up with a realistic hypothetical, though.
People can argue about their own feelings and their own superstitions and their own opinions, and waste everyone’s time. Or you can point to the laws in place that make gender an important factor in marriage. Point me to the law that treats a “husband” different from a “wife.” Point me to the laws that would make a marriage with two husbands an impossibility. Hey! Better yet – point me to all the legal snafus in Massachusetts and Iowa!
August 6, 2010, 4:49 pmLarryWB says:
Brilliant. Perhaps I should respond, “I don’t recall seeing the phrase ‘gay marriage’ in the Constitution?
August 6, 2010, 4:51 pmMANEGO says:
The discussion about what time period the justices would look at reminded me of Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). In a Dormant Commerce Clause case having to do with Iowa using idiosyncratic truck regulations incompatible with neighboring states, opinions by different justices reached different conclusions about the purpose of the law at different times. Powell, writing for the plurality focused on the justifications offered by counsel on both sides in their briefs; Rehnquist, dissenting, focused on the justification given by the legislators in 1963; Brennan, concurring, focused on the justification given by the governor when he vetoed a repeal of the regulations in 1974.
August 6, 2010, 6:39 pmMichael Ejercito says:
What is germane is the original public understanding of the 14th Amendment.
Was gender important when the 14th Amendment was ratified?
August 6, 2010, 7:35 pmJCC says:
I don’t recall the constitution saying that “marriage” was a “right”, nor that “marriage” meant anything other than “one man and one woman”… Failing that, a common law definition has always applied. Ping me when Black’s Law is updated.
August 6, 2010, 7:39 pmJCC says:
QFT
August 6, 2010, 7:42 pmDavid Smith says:
Who defines what is a right if not the majority?
August 6, 2010, 9:36 pmLex Luthor says:
Ever see the Michael Keaton movie “Mr. Mom”?
Isn’t the joke of that movie that a man is stepping out of his gender role and stepping into the traditional gender role of a woman? A baby was created. Men are supposed to do X; women are supposed to Y. Look at Mr. Mom trying to Y…..ha, ha, ha!
How is it that a judge and a handful of expert witnesses knows better than millions of California voters that in the 25 years since Mr. Mom gender has lost its significance as a part of marriage? Or, how is that a judge is in a better position than the citizens to determine that gender OUGHT not be a significant part of marriage — that Californians and society at large are better off when gender roles are made irrelevant?
If Congress were to pass a law allowing for sex discrimination in wages, justifying the law on the basis that women who stay at home produce more children and rear healthier, smarter (insert good thing here) children, then would we say that we can’t have a society that values such things because gender plays no role in being a good accountant even though gender might play a role in raising healthier children? Only a constitutional amendment or a five-out-of-nine vote would permit citizens to determine the kind of culture they want?
Dower and curtesy were mentioned. I ask the following question not to be argumentative, but to be informed. Were dower and curtesy abolished by the judiciary or by the legislatures? Did judges say, “Aww, this wife/husband property thing is stupid; I’m going to do away with it?” Or, did legislatures determine that the policy no longer made sense in light of changing societal circumstances?
I suppose I am a Luddite, but I have always understood marriage to be a way that our society acknowledges the importance of creating the next generation and of rearing that next generation so that it improves our lot. (Isn’t the prohibition on consanguinity based largely on the expectation that married couples are to reproduce and, with that in mind, society doesn’t want people so related to reproduce; thus society prohibits the marriage? The availability of birth control and abortion should have done away with the consanguinity prohibition, yes?) Returning to the point, if the two people love each other then that is a good thing too and may even make the result of marriage even better. But the love of the two people wasn’t predominant. There is a function to marriage. And, by and large, that function requires a man and a woman.
Different gender roles — well, it’s implied; it’s taken for granted; it’s been a no-brainer for hundreds of years. At least that’s how I’ve understood it. I tend to think that my neighbors have understood it that way too.
Now, it’s certainly true that not all couples procreate. It’s true that not all couples are capable of procreating. But how does that lead to the conclusion that couples who, ab initio, can’t procreate should be treated the same as those who potentially can? Clearly the ability to procreate and the ability to rear the children so procreated are facts that are substantial and that substantially differentiates heterosexual coupling from homosexual coupling. Why, then, is it so irrational to treat substantially different things in a substantially different manner?
Poly relationships were mentioned generally and along the lines of the differences between it and SSM. It’s said that SSM is similar enough to heterosexual marriage that the state already has in place the structure to cope with its various challenges. Poly relationships, on the other hand, pose problems so different that the analogy to SSM fails. I…I think that is fair restatement. Feel free to correct me if I am wrong.
What I wonder is this. If homosexuals can marry homosexuals, then can heterosexuals decide to marry a fellow heterosexual? Is this a kind of gender fraud or marriage fraud? Does this ruling lead to the possible doubling of the number of instances of this kind of marriage fraud?
Assume that such a fraud becomes relatively widespread. Assume that people scoff or chuckle at the so-called sanctity of marriage when it can be fraudulently entered into and then exited in a no-fault way. I’m getting at this: is there in place now a structural mechanism for the state to pre-screen couples for marriage so as to ferret out would-be marriage fraud? And, is there a mechanism to detect marriage fraud after a divorce?
The state can’t simply let Jill and Jane gain the tax advantages of marriage when that marriage was a sham. The state should prevent that loss or get that money back? How will it do this? Is there supposed to be a new cabinet office in charge of pre-marital interviews and post-marital accountings? Do we take a page from immigration law?
What if the state refuses to create the Department of Honest Love? Marriage continues to be scoffed at? The state decides to reduce the incentive to marry? Heterosexual marriage, which didn’t have this problem to this degree until homosexual marraige was legalized, is now hurt because of this loss of incentives? {shrugging shoulders} I…I don’t know. I wonder if it’s rational for the state to claim that it too doesn’t know what would happen, but that it fears the risk of change is so great that is needs more time to evaluate the matter.
I just know that something about this process rankles me and many others.
August 6, 2010, 9:44 pmLaura(southernxyl) says:
Randy, you’ve had some thoughtful and interesting comments here.
I take issue with your comment about the Bible holding up polygamy and incest as being admirable things. The Bible has stories in it about human beings doing things, good and bad, and consequences that followed those actions. It’s dishonest to pretend that every one of those stories is intended as an example for us to emulate. David had lots of concubines, and had children with them. The next generation was a real mess – see Absalom and Amnon and Tamar, for instance. The story isn’t presented as “go thou and do likewise”.
I’m really tired of “God created Adam and Eve, not Adam and Steve”. I’m also really tired of “Lot’s daughters, blah blah”. Neither argument is half as clever as the people putting them forth think they are.
August 6, 2010, 11:24 pmBoonton says:
Michael
It’s not so substantial if you’re asking a legislature to create a poly marriage law, it is if you’re trying to assert there’s a right to poly marriage based on a right to SSM.
And why would the threat of adding a third spouse be substantialer?
Again it changes the terms of existing marriages making it a different institution just as much as a business patnership is not a corporation. If the rules for a corporation were suddenly applied to partnerships or vice versa you’d be changing the nature of the business model.
In terms of asking which change would or would not be a radical change, no one here has been able to come up with a single change in marriage that SSM would bring. It’s impossible to do the same exercise with the idea of poly marriage.
Promoting same-sex “marriage” to domesticate homosexuals would have been rejected by almost all homosexuals.
Has it? Andrew Sullivan isn’t gay then, wow! Actually I think the phrasing is bad (do the Queer Eye for the Straight Guy guys really need to be ‘domesticated’?). The argument is that SSM provides an institution that provides for long term monogamous relationships among gays. On the contrary to being rejected, that model appears to be more and more embraced by many in the gay community.
I think gender no longer being important to marriage law demonstrates why SSM is not a dramatic change from a legal perspective while the duel nature of marriage makes poly marriage a radical change.
Gender just doesn’t suddenly become ‘more important’. If laws started being passed that assigned male and female roles to marriage, there would be a massive equal protection problem. For example, imagine a law that said when a husband and wife disagree on financial decision the husband’s call always wins. Such a law would make SSM legally awkward (you’d either have no males or two males), but it would probably never get past an Equal Protection challenge.
Michael
On the same grounds that you can’t demand your boat be regulated by the FAA rather than the Coast Guard. No plural marriage institution exists nor are its rules and regulations written anywhere. You’d have to argue that you have a right to demand the state write up a new institution tailored to your desire for plural marriage. Such a right to have new institutions drafted on the fly has nothing to do with SSM arguments and would be unviable for obvious reasons.
Lex Luther
It doesn’t but that has nothing to do with legal relevance. Mr. Mom may have been breaking societal convention but he was doing nothing all that dramatic in terms of law. Now maybe a marriage just isn’t as happy without one of each gender in it, but that’s not the ‘relevance’ that’s relevant here.
An analogy here might be dramatic age differences. Most people see them as suspect. Why is the 23 yr old marrying the 80 yr old? Must be aiming for the estate etc. That’s all very relevant in terms of the family, the happiness of the marriage and so on. Not very relevant for the law which cares little for age other than both parties being over the age of consent.
Actually such a law would probably be constitutional since most civil rights laws are regulations of private businesses so simply rescinding them wouldn’t violate the constitution. However Congress probably couldn’t pass a law permitting sex discrimination in government employment without a constitutional amendment. This has no relevance to SSM, though. If it was legal to pay women less for the same work a FF marriage would just face a tougher job market while a MM marriage would face an easier one.
Now there you can get the ‘culture you want’ but there’s a limit to how far you can go. You can’t pass a law *ordering* that women get paid less than men unless you get a constitutional amendment first.
It’s actually much more objective than that IMO. You look at marriage law and ask does it treat husband and wives differently? Does it assign different rights and responsibilities to each making SSM unworkable absent a legislative remodeling? Or like dower and curtesy are husband and wife interchangeable in marriage law?
I think your premise is wrong. Marriage is not about procreation in itself. A visit to your local welfare office will show you nicely that humans can procreate quite a bit without marriage. Marriage is about a union of two people. For society this union leads to more stability as the two are bound to care for each other whether or not there are children. Now given marriage, the odds that children will be better cared for go up, but even childless marriages are socially good in that they help provide for individual stability. Hence we get upset when we hear about a couple of 70 yr olds getting a divorce. If it was just about procreation we wouldn’t care as any children this couple would have had are now long grown up. Likewise we don’t like the 20 yr old marrying the 80 yr old. From a procreation standpoint such a marriage is likely to work. Yet we don’t like it because we suspect some motive more sinsiter than two people dedicated to each other is at play.
I think you need to rephrase this question. Why would a hetrosexual marrying a heterosexual be a ‘kind of marriage fraud’?
I don’t think such a thing is necessary for two reasons:
1. I doubt the state could do this intelligently. Anyone seeking to con the system would no doubt ‘say the right things’ in front of the board.
2. When you marry someone you are putting yourself in a very vulnerable position legally. You are obligated for many of their debts, for their well being, even opening yourself up to alimony etc. Don’t be fooled about ‘no-fault easy divorce’ rhetoric. Divorce is still expensive and can cost you a lot. Marrying someone for a superficial reason like a tax benefit would be like signing your house’s deed over to a complete stranger on the street. The potential cost to you can be large compared to a trivial savings.
August 7, 2010, 10:30 amMichael Ejercito says:
Why?
Other societies have this sort of practice. And other societies, like the Ashanti, have extended families with multiple mothers and fathers for children.
August 7, 2010, 10:30 pmBoonton says:
I’m not saying it would be impossible to devise a poly-marriage system either modeled from another culture or made up from scratch. I’m saying you can’t transform the current marriage system into a poly one by simply altering a single sentence in marriage law or adding extra lines to the license application. SSM can be adopted with such minimal change. There’s no way to avoid the fact that poly marriage would require a much more dramatic change than SSM would.
This makes a fatal problem for the argument that if there’s a right to SSM there must be a right to polymarriage. A right to SSM would simply be a right to access the existing system of marriage. Those seeking poly-marriage, though, cannot seek access to the current system because the current system is designed for duel marriage. You can’t just plug “polyers” into the current system anymore than you can plug your current appliances into European outlets.
To make an argument for a right to poly marriage you have to argue that “polyers” have not only a right to marriage but a right to insist that the state create a new institution for them. On top of that burden you’d have to show which, out of the thousands of potential, poly-marriage systems is supposedly mandated by the Equal Protection Clause. I’m sorry but the analogy breaks down very quickly in legal terms. Yes poly supporters may argue that legislatures should implement an alternative system but that’s not a legal question but a political one.
August 8, 2010, 8:44 amLex Luthor says:
Boonton,
In a sentence or two can you please explain what is significant about the fact poly marriages would require structural changes in marriage recognition/system that SSM will not?
I get it that we’d need to rethink how divorces are to be handled as well as a list of other topics. But the question I have regarding that is “so what?”
Someone will argue that he has fundamental rights to expression, association, privacy. Further, he will argue that his/their relationship is consensual and that it hurts no person. Naturally, they will go beyond that and point to some statistics that show that poly marriages are actually a social good.
I’m not trying to be combative. I’m trying to understand why the requirement of structural change is so significant, significant enough to overcome the fundamental rights arguments. Your thoughts would be appreciated.
Lex Luthor
August 8, 2010, 11:57 amBoonton says:
I’ll use one of your sentences to answer your question:
I get it that we’d need to rethink how divorces are to be handled as well as a list of other topics. But the question I have regarding that is “so what?”
And rethinking how divorces work and everything else is the job of a legislature while deciding whether or not the Constitution requires equal access to an institution legislatures have already thought out is the job of the courts.
Someone will argue that he has fundamental rights to expression, association, privacy. Further, he will argue that his/their relationship is consensual and that it hurts no person. Naturally, they will go beyond that and point to some statistics that show that poly marriages are actually a social good.
All very relevant for a legislature to consider, how does that get me from the Equal Protection Clause to one of the thousands of potential styles of poly-marriage to be established as a right?
I’m not trying to be combative. I’m trying to understand why the requirement of structural change is so significant, significant enough to overcome the fundamental rights arguments. Your thoughts would be appreciated.
I think the issue here is two different sets of fundamental rights. With SSM the fundamental right is equal access to a legislated institution. With poly- you’re implying a fundamental right to demand novel institutions be created on behalf of anyone who wants it. Most people agree the first is a fundamental right but will debate whether the state has a legitimate interest in restricting access in the case of SSM. Few people would agree the second is any type of right.
August 8, 2010, 12:38 pmBoonton says:
The error I think is that the reasoning by analogy is a rhetorical stunt. Few would support poly marriage let alone poly marriage established by judicial decision. Hence the attempt is being made to equate the arguments between SSM and poly-marriage but they don’t stand up to scrutiny. To achieve poly-marriage one needs the SSM arguments plus a lot more.
August 8, 2010, 12:40 pmLex Luthor says:
Boonton,
Thank you. It’s something for me think about.
August 8, 2010, 12:41 pmMichael Ejercito says:
The problem with that reasoning is if the institution is defined according to gender, then everyone has access to the institution itself.
August 8, 2010, 1:41 pmBoonton says:
I don’t follow. The issue is that marriage is NOT defined by gender in law. If it was there would be a better legal argument against SSM.
August 8, 2010, 3:10 pmLex Luthor says:
Boonton,
If you will indulge me, a few other questions, please.
Regarding gender roles:
Many think that there are gender roles in marriage. The man’s role is to help, in a uniquely masculine way, the procreative process. A woman’s role is to do likewise. Furthermore, a man’s role is to rear children and offer a man’s perspective on things (though not necessarily from some Official Handbook on How to Act and Think Like a Man.) LIkewise, a woman rears children and offers a woman’s perspective on things.
My questions are these:
1) Was there ever a time in our nation’s history when marriage did have gender roles? Did it exist when June Cleaver stayed home to vacuum while Ward brought home the bacon?
2) Assume that it did exist. How is a judge capable of determining that the era of gender roles has ended? Is it sufficient that a judge hear evidence from a sociologist? From 100 sociologists? From 10 sociologists, 10 clergymen, and 10 random citizens?
3) Lastly, assume that gender roles do not exist. If we as society decided that there OUGHT TO BE gender roles, then how, legally speaking, do we go about doing creating them? Do we repeal Equal Pay for Equal Work laws and thereby reduce the number of women in the workforce and increase the number of women who remain at home to nurture a loving, stable family life? Or is that constitutionally prohibited?
Your insights are welcome.
Lex
August 8, 2010, 5:54 pmBoonton says:
Lex,
I think we are mixing up legal roles with social ones. Many do think a man’s role in a marriage is to help in a ‘uniquely masculine way’. But in terms of law this is not a defined role. To answer your questions:
1. In June Cleaver’s time I don’t believe there were many laws that applied gender roles to marriage. If June had gone out and gotten a job she would have been unconventional but from a legal point of view hardly all that dramatic. June’s husband could not have divorced for ‘acting masculine’.
2. I think it’s a lot simplier than asking lots of sociologists, clergy, citizens etc. It’s simply looking at the laws and asking are there gender roles in there or not. The opinions of sociologists, clergy, studies etc. come into play because of the Constitution’s Equal Protection requirement. Basically the state can treat people unequally if it shows that it has just cause to do so. The system that has evolved is one of varying levels of scrutiny. At the most basic level, the state need only show that it has some legitimate reason to enact a law that treats people differently, it doesn’t have to show that the law is the best way or only way to accomplish this legit. goal or interest the state has. At the most strict level, the state must show that it has a legitimate interest and the law is the only way to effectively protect it. Laws that differentiate based on race have been subjected to strict scrutiny because of the history of the Equal Protection amendment, gender has been subjected to slightly less scrutiny (hence we have male and female bathrooms by law but not white and black bathrooms). The ban on SSM could have survived challenge in this case if the state had shown that it has some real legitimate interest in it. From what I understand, though, they did not put up much of an argument.
3. I think enacting legal gender roles would have to hinge on the nature of the roles you want to enact and how they would square with the Constitutions Equal Protection Clause. You’d probably need an amendment limiting Equal Protections application to gender, how much of a limitation would probably depend on how much of a gender role you want to enact in the legal system.
August 8, 2010, 8:49 pmzuch says:
That wasn’t the state’s argument. It was the argument of the pro-Prop.8 parties [from the opinion]:
Cheers,
August 9, 2010, 11:26 amBoonton says:
The argument here is basically that SSM opponants have lost, banning SSM violates the Equal Protection Clause of the Constitution BUT they argue that violating the clause is ok if a state has a compelling interest in keeping social change from happening too quickly.
This argument requires at least two pieces to be true:
1. Slowing down ‘social change’ is enough of a legitimate state interest that it has a right to violate Equal Protection to some degree.
2. SSM is, in fact, a dramatic social change.
If either of these pieces isn’t true, then the argument collapses. Hence the search by the judge for any evidence of dramatic social change.
This brings us to the original post. Clearly raw numbers cannot establish dramatic change here. Even assuming that every gay person will opt to get married it would be a stretch to think SSM could account for 5% of all marriages. Compare this to school desegregation where the population of blacks was much more than 5% of the population yet that social change wasn’t ‘too fast’ for the courts to recognize a state interest in slowing it down. Likewise the lack of evidence that non-SSM will be impacted does not bode well for the ‘radical change’ argument.
What we are left with is Kerr’s assertion that its radical social change simply because some very loud people say it is. In other words it’s a radical change if Fox News decides to scream loud about it.
Of course we haven’t really talked about #1 much but for those who believe in limited gov’t it’s a pretty disturbing argument. It’s odd to me that those who would immediately turn red over the idea of a gov’t ‘managed’ economy or who would view gov’t seeking to ‘slow market changes’ as little more than a front for lobbyists to impose protectionism and corporate welfare at everyone else’s expense feel perfectly at home with gov’t as ‘manager of society’.
August 9, 2010, 12:38 pmMichael Ejercito says:
The problem with this finding of fact is that it constitutes a prediction.
August 9, 2010, 2:41 pmBoonton says:
It would except for the fact that the burden is on the state to establish that it has a legitimate interest that justifies violating equal protection. To work the state would have to show not only is it reasonable that SSM *would* have an impact on other marriages but that its impact would be serious enough to justify banning SSM. If the only evidence out there hints at no impact then the argument from those opposed to SSM has no support
August 9, 2010, 4:23 pmMichael Ejercito says:
Except that when the Supreme Court rejected constitutional claims in Davis v. Beason, it asserted that bigamy and polygamy “tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man.” And it did so without citing any factual findings or previous court cases. And as the Supreme Court pointed out in FCC v. Beach Communications, “legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.”
August 9, 2010, 9:19 pmBoonton says:
Davis v. Beason was not about marriage. The law in question required Utah citizens to swear an oath that they were not polygamists in order to vote. The law probably would not stand today but regardless the fact is even if the decision went in the opposite direction it wouldn’t have mandated polygamy, only limited the ability of Congress to ban polygamists from registering as voters. The case is not about the Equal Protection clause (what SSM cases are about) but freedom of religion. The law impacted not polygamists seeking legal recognition but people living as polygamists regardless of whether or not they wanted legal status as married.
August 9, 2010, 9:31 pmLex Luthor says:
Boonton,
Regarding Societal Impact and Rational-Basis for Slow Change
You mentioned that
Why assume five percent would be a stretch?
Does this ruling prevent heterosexuals from taking advantage of same-sex marriage? Maybe there are tax benefits, insurance benefits, and tons of other benefits to marriage that would tempt many, many heterosexuals to marry one another. Given the fact that social stigma towards homosexuality is decreasing, the likelihood of this happening grows greater and greater by the day, doesn’t it?
Is the social impact of this known?
1) Would Hetero/SSM be considered fraudulent? If so, how would it be prevented, detected, proved, and then remedied?
2) Would Hetero/SSM be deserving of more or less rights than, um, “true” SSM?
3) How would Hetero/SSM affect traditional marriage?
Do people look askance at all marriages and wonder if they are all marriages of convenience?
Do benefits that heretofore have been the province of traditional marriage, do those benefits have to be cut to accommodate more and more marriages?
Would it violate Equal Protection to treat the traditionally married more favorably considering that the traditionally married provide greater social utility. A relationship that offers love, AND, procreation, AND child rearing, is more deserving of special treatment than is a relationship that offers love but not the other two, yes?
Would no-fault divorces effect Homo/SSM differently than it would effect Hetero/SSM than it would affect traditionally marriage?
I don’t have answers to these questions. But suddenly a quote from Justice Jackson’s dissent in Terminiello comes to mind:
“An old proverb warns us to take heed lest we ‘walk into a well from looking at the stars.’”
That quote sounds rational to me.
August 9, 2010, 10:45 pmMichael Ejercito says:
Actually, the appeal to the Supreme Court included an equal protection claim. (Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41) The Supreme Court obviously rejected that claim.
Yes, and if polygamists were denied the right to vote (which was why an oath was necessary in the first place) it imposed adverse consequences on the ability to practice polygamy, just as a similar law that denies people suffrage if they were in an interracial marriage would impose adverse consequences on the ability to practice interracial marriage.
And even so, freedom of religion cases are held to strict scrutiny.
August 10, 2010, 2:16 amBoonton says:
Lex
Why assume five percent would be a stretch?
1. Because the entire homosexual population is estimated to be around 5%. If 100% of them married and stayed married (something heterosexuals don’t do), then we’d have 5% of the population in SSM. If 50% of them did then we’d have 2.5%, if only 20% of them did then we’d have 1% and so on.
2. I’m not clear why you think heterosexuals would seek to enter same sex marriages with each other for ‘tax and insurance’ benefits in any but trivial numbers. In theory today gay men and lesbian women could marry each other for the same reason yet I’m unaware of any evidence this has happened.
Again I think you overestimate the benefits of a ‘show marriage’ compared to the risks in marrying someone you don’t have complete trust in. The law makes no difference between a marriage of convenience and a marriage based on love. I think that’s the best way to deter marriages of convenience.
Michael
Yes, and if polygamists were denied the right to vote (which was why an oath was necessary in the first place) it imposed adverse consequences on the ability to practice polygamy, just as a similar law that denies people suffrage if they were in an interracial marriage would impose adverse consequences on the ability to practice interracial marriage.
I believe the Loving decision entailed not a law that denied the vote to interracial married couples but prohibited interracial marriages. At the time most states had laws against cohabitation so an interracial couple could not live together even if they were willing to forgo the marriage license.
I think too much is being made of Davis. The case probably couldn’t stand today but there’s no longer a case to bring to court as polygamists may vote today and no one is required to take an oath as they register to vote. Even though the case couldn’t stand today, though, I don’t think it would fall in the direction of mandating poly marriage. It would fall in the direction of limiting the state from prosecuting people who are living in poly-marriages on the grounds of privacy and freedom of religion.
August 10, 2010, 8:19 amBoonton says:
And even so, freedom of religion cases are held to strict scrutiny.
I believe this is false. What probably wouldn’t fall about the Davis ruling is that the courts make a clear distinction between action that may have religious motivation and freedom of religious belief.
For example the courts have ruled that Indians may be banned from using psychotrophic drugs in their religious vision quests even though the practice is well documented as part of their religion and predates the founding of the US. But the state can’t ban the belief that using the drugs *should* be part of religious ceremonies. Likewise the Davis law banned those practicing polygamy from voting but it didn’t require voters not to believe that polygamy is acceptable.
If you’re going to argue that the courts should mandate poly marriage on religious freedom grounds I think your case becomes even harder to sustain. IMO at best you have a case that the gov’t should stop harassing those living in polygamous relationships in places like Utah where there’s no coercion or child endangerment going on.
August 10, 2010, 8:28 amGeorge Dumsitrott says:
I don’t know why some people are limiting the only possible other legitimate impacts of gender-neutral marriages to that on “other marriages” aka opposite-sex marriages. Not only is this not the only issue, for many opposed to gender-neutral marriage it is not the main issue. Even less so if we’re talking about existing marriages.
August 10, 2010, 8:55 amMichael Ejercito says:
True.
But under the precedent set in Loving, a law that prohibits people in interracial marriages from voting would be an equal protection violation.
Today, a lot of states have anti-bigamy laws on their books and laws prohibiting felons from voting.
The Supreme Court declined to hear the appeal of State v. Holm, a Utah Supreme Court case that rejected applying Lawrence v. Texas to the state’s anti-bigamy laws.
I used Davis because the decision cited a passage from Murphy v. Ramsey as a rationale.
Actions have been subject to regulation. But not all actions are beyond the reach of the First Amendment. See West Virginia State Board of Education v. Barnette.
August 10, 2010, 11:16 amBoonton says:
Michael
But under the precedent set in Loving, a law that prohibits people in interracial marriages from voting would be an equal protection violation.
I agree such a law would be an Equal Protection violation, not sure that Loving set that out though. http://en.wikipedia.org/wiki/Loving_v._Virginia's summary of the case says nothing about voting.
Today, a lot of states have anti-bigamy laws on their books and laws prohibiting felons from voting.
True but the anti-bigamy laws refer not to living with several women but marrying multiple women, taking advantage of the fact that most counties do not cross check the applicants on marriage licenses. Many polygamists in the US are not in violation of anti-bigamy laws since they only procure one legal marriage at a time (even turning it into an aspect of their institution making the ‘first wife’ the one who holds legal marriage to the husband).
I’m not quite sure where this argument is going. Are you trying to make a case for polygamy or are you trying to say that a case can be made for polygamy with EQUAL ease by using ONLY the grounds that SSM has been argued for?
Lex,
Just to clarify, I’m not saying that it has been proven that SSM will have zero social impact. The argument recall is basically one of defeat. Those opposed to SSM are basically saying yea the Constitution mandates SSM BUT the state has an overriding interest in keeping ‘social change’ from happening ‘too fast’.
But compare the likely social change of SSM to the social change of the civil rights decisions. School desegregation involved a larger portion of the population than SSM does. White parents correctly noted that their children would be impacted in that they would case going to white only schools. In contrast SSM appears mostly contained to gay couples (I’ll leave your hypothetical of heterosexuals marrying the same sex for ‘tax benefits’ as highly unlikely for now). Given the dramatic change of the civil rights decisions, that still wasn’t enough for the courts to accept an invented state right of ‘slowing change’.
This shifts the burden then to show not only that SSM may generate some possible change to showing that it generates a massive change that the state has a great interest in ‘slowing down’. Even if you think that gender issues are subjected to less than the strict scrutiny that racial issues are, this is still a pretty high bar IMO.
August 10, 2010, 1:23 pmMichael Ejercito says:
Loving would apply in so far as such a law would impose adverse consequences on people because they married someone of a different race.
But remember that gender discrimination was upheld in cases where analogous racial discrimination would be struck down. (Rostker v. Goldberg, Michael M. v. Superior Court of Sonoma County)
August 10, 2010, 2:41 pmBoonton says:
True race is subjected to strict scrutiny while gender is not. Hence city hall has bathrooms for men and women but bathrooms for whites and blacks only would never fly. But gender is still subject to scrutiny.
August 10, 2010, 10:37 pm