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[Dale Carpenter (guest-blogging), November 2, 2005 at 7:53pm] Trackbacks
The Traditionalist Case -- The Polygamy Slippery-Slope Argument:

A somewhat better argument than the first two I've addressed today (the definitional argument and the contagious-promiscuity argument) is the polygamy slippery-slope argument.

Slippery-slope arguments offer a parade of horribles that might be brought about by gay marriage, but they always have this form: "If we allow gay marriage, we'll end up with [policy X], and that would unquestionably be bad." The usual bad destination claimed to await us after gay marriage is polygamy. But one occasionally hears that gay marriage will also bring incestuous marriages, bestial marriages, etc. Here I will consider only the polygamy variant of the slippery-slope argument because it's by far the most common, but much of what I have to say would apply to other slippery slopes.

Theoretically, slippery slopes can be initiated in one of two ways: (1) the logic of the proposed step (gay marriage) entails a slide down the slope; or (2) the politics of the proposed step, e.g., in terms of the way in which it might liberalize public attitudes about further reform, risks a slide down the slope. In reality, however, if there is no political momentum for a reform, logic alone will not likely produce a slide.

If gay marriage led to polygamy that might please some people, but it would not be welcome news to the traditionalist.

1. The political slide to polygamy.

The political slide that might be initiated by gay marriage has been addressed in some detail by Eugene in Same-Sex Marriage and Slippery Slopes, 34 Hofstra L. Rev. ___ (forthcoming 2006), available at http://www.hofstra.edu/PDF/law_lawrev_volokh_vol33no4.pdf. He concludes that the political prospects for polygamy, after gay marriage is adopted, will be "lousy." The political right will not support it. And the political left will likely not be supportive, either, for several reasons he lists. You can find a few leftish supporters of polyamorous marriages, especially among academics. But academics have many esoteric causes.

If neither the right nor the left will line up behind you, your prospects of success are very dim. So no matter what we do about gay marriage, polygamy will not arrive, especially in the West, where liberal individualism, sex equality, and the loss of polygamy's own religious adherents, all combine to make it a very rare and dying practice.

2. The logical slide to polygamy.

That leaves the supposed logical slide to polygamy, which is almost always the slide envisioned by gay-marriage opponents.

What is the necessary logic behind gay marriage that will leave us no principled choice but to accept polygamy? To be sure, one could make (and some have made) arguments for gay marriage that seem very open-ended.

One possible principle uniting gay marriage and polygamous marriage is that gay marriage, like polygamous marriage, extends marriage beyond partners who may procreate as partners. If there is no necessary link between marriage and procreation then maybe we will have to recognize all arrangements, like polygamous marriages, which cannot form a child from all of the partners.

The notion that gay marriage fundamentally severs the link between procreation and marriage, and thus leads to polygamy, founders on the same logical and experiential shoals as does the procreation argument (which I'll discuss tomorrow). Briefly, procreation is already not a requirement of marriage. Sterile opposite-sex couples have already taken that step down the slope for us, yet we are no closer to polygamy.

A second possible uniting principle is that gay marriage necessarily makes marriage a private affair, catering to the wants and needs of private adult citizens, not an institution with a profound public purpose, like ensuring the raising of the next generation. If marriage is a private matter, the argument goes, then the state has no business regulating entry to it, so polygamous groups cannot be denied marriage.

This supposed uniting principle misconceives the argument for gay marriage, which, as I have outlined it, is not necessarily based solely on augmenting the private happiness of two adults. Further, using marriage to recognize adult love is a step down the slope already taken by straight couples. Like it or not, many people in the West already understand marriage as companionate; they don't need gay marriage to reach that conclusion. So even if gay marriage were justified solely by the love same-sex partners have for one another, recognizing such relationships would be more analogous to taking a step to one side on a slope already partially descended, not an additional step down the slope.

I think this should be enough to reject the idea of a logical slide. There's just no good reason to think that recognizing a new form of monogamous marriage logically entails recognizing polygamous marriage.

But for those still uncertain, let me take the argument one step further. Gay marriage and polygamy are not only not united by any single common principle necessary to the argument for gay marriage, but for the traditionalist, the affirmative arguments for them are quite distinct.

Here's why. Any proposal for the expansion of marriage must be good for both individualistic reasons and communitarian reasons. Gay marriage meets both criteria, as I have shown. While I don't want to offer any definitive conclusions about polygamy here, I think the case for polygamous marriage is distinguishable (and weaker) on both counts, especially the second.

On the first issue - - the individualistic benefits - - there are good reasons to doubt whether polygamous marriage would produce the same degree of caretaking and social benefits gay marriage would produce.

While multi-partner marriages might benefit the partners involved, the much greater potential for jealousy and rivalry among the partners make for a potentially more volatile arrangement than a two-person marriage, reducing the expected caretaking benefits to its participants. In a multi-partner marriage, it may also be unclear who has primary caretaking responsibility if a partner becomes sick or injured; there is no such uncertainty in a two-person marriage. While we have good evidence that children do well when raised by two parents, including same-sex couples, we have no evidence they do well when raised in communal living arrangements.

The expected social benefit from polygamy (e.g., the reinforcement of the marriage by others) should also be smaller if, as I argued above, public resistance to polygamy will be large and unyielding.

On the second issue — the communitarian benefits — the differences between gay marriage and polygamous marriage are potentially more pronounced. There are communitarian benefits to gay marriage; there may well be serious communitarian harms to polygamy.

Since multi-partner marriages have almost always taken the form of one man having many wives, recognizing them presents special risks of exploitation and subordination of women, which is inconsistent with our society's commitment to sex equality. There is no comparable concern raised by gay marriage.

In human history, polygamy has correlated strongly with societies that were illiberal and undemocratic. Gay marriage is arising in the most liberal societies, characterized by representative democracy, widespread franchise, and universal education.

Is this correlation relevant? Why does it exist? Several explanations are possible, but two are most important here. First, modern liberal societies have emphasized values like individualism and sex equality that seem inconsistent with polygamy as it has been practiced. Gay marriage, by contrast, is fully consistent with these values.

Second, polygamy takes many more women than men out of the marriage pool. This leaves heterosexual men with fewer marriage opportunities. Unattached men with poor marital prospects destabilize societies, and large numbers of such men in a society require strong mechanisms of state control to rein them in. Gay marriage helps ensure marriageable partners for everyone; polygamy does the opposite, with potentially anti-liberal, undemocratic, and socially destabilizing consequences. (The communitarian harm from polygamy might be small because few people will be polygamous, but a small harm is still a harm.)

Whatever the strength of a Burkean case against gay marriage (and I'll get to that Friday), the Burkean case against polygamy is much stronger. Polygamy, unlike gay marriage, has been tried and rejected. Many human societies have practiced it at one time or another and almost all have abandoned it; gay marriage, by contrast, has never been tried and rejected.

Perhaps none of these considerations is decisive against the recognition of polygamous marriages, nor do they need to be in order to make the point. This discussion shows that gay marriage and polygamous marriage present very different issues of history, data, logic, and experience. And nothing in this complex discussion of history, data, logic, or experience turns on whether gay marriages have previously been recognized. Gay marriage and polygamous marriage should each be evaluated on its own merits, not treated as if one is a necessary extension of the other.

Finally, it should be said that slippery-slope arguments about marriage have a certain Chicken Little quality about them. The ominous slide to polygamy has been a favorite trope. For example, the same polygamy red flags were raised about interracial marriage. In the Nineteenth Century, the Tennessee Supreme Court warned that the recognition of such marriages would lead to "the father living with his daughter . . . in wedlock" and "the Turk . . . establish[ing] his harem at the doors of the capitol." State v. Bell, 66 Tenn. 9 (Tenn. 1872).

This is not to say that warnings about slippery slopes, even about slippery slopes in marriage reform, have never proven true. But it is to say that nothing in the traditionalist case for gay marriage brings us any closer to the harem than we were when the Tennessee Supreme Court warned us about it more than a century ago. And if gay marriage is ever accepted in America, I believe it will be on the basis of something like the traditionalist grounds I have offered. That is, it will be accepted when Americans have become convinced that gay marriage is a good idea for traditionalizing individualistic and communitarian reasons.

Tomorrow, I'll deal with the procreation argument in two parts: one post on the standard version and one post on Maggie's more subtle version.

Tony (mail):
Unattached men with poor marital prospects destabilize societies, and large numbers of such men in a society require strong mechanisms of state control to rein them in.

I'm struck by how arguments against polygamy take on this "socialist" tone - that nobody can have multiple wives in order that everyone can have one. Whatever happened to meritocracy? I'm only half serious, but really... is the accumulation of wives really worse than the accumulation of wealth?

From another angle, I'm disturbed by the revisionist history surrounding the reasons the state got involved in marriage in the first place. The state did not recognize marriage because of any particular social goal - it recognized marriage because marriage existed, and to not recognize it would be denying reality. If the state didn't recognize straight marriages, nobody would argue that they aren't "real" marriages, since marriage is a natural institution that arises spontaneously. Similarly, gay marriages exist - arising spontaneously between men - and though they are not popular, it seems to me that denying they exist doesn't change the situation except insofar as this natural contract is not being enforced by the state.
11.2.2005 9:04pm
Jason Jonas (mail):
"The political right will not support it. And the political left will likely not be supportive, either, for several reasons he lists. You can find a few leftish supporters of polyamorous marriages, especially among academics. But academics have many esoteric causes. If neither the right nor the left will line up behind you, your prospects of success are very dim..."

Maybe so. But whenever the VC discusses legislative restrictions on the rights guaranteed under the Freedom of Abortion Amendment, various commenters repeat "Rights don't depend on numbers/ polls/ majority opinion!" If the same reasoning that justifies gay marriage would also extend to polygamous marriage, why should the Mormons and the Martin Cahills be denied their constitutional rights just so the supporters of SSM can stitch together the "minimal winning coalition" needed to get SSM enacted (either by courts or by legislatures)?
11.2.2005 9:15pm
Medis:
Just a minor point, but I think there is an obvious connection between the structural problems with group marriages and the "illiberality" of such marriages. In other words, the structural problems created a special need for the imposition of order within the group, and that order is typically supplied by something like a patriarch.
11.2.2005 9:23pm
alkali (mail) (www):
First, modern liberal societies have emphasized values like individualism and sex equality that seem inconsistent with polygamy as it has been practiced.

I would add that liberal bourgeois capitalism (I mean that term in a nice way, kids) is particularly inconsistent with polygamy because the more people are involved, the more fights you're going to have about who owns or controls the stuff that belongs to the married persons.
11.2.2005 9:31pm
Appellate Junkie (mail):
There are a couple of other important distinguishing characteristics that one ought not to overlook.

1. Whatever you think of marriages between two people of the same sex, the change in the statutory scheme is quite modest. With a license in hand, the gender of the participants matters little in the present-day administration of marriage—at least in most jurisdictions. (I have heard rumblings from some folks here that men continue to bear the brunt of spousal-support payments based on their gender; that's not true in many places, and presumably wouldn't be an earth-shattering reform in the remainder).

Obviously, expanding the participants into either overlapping (polygamous/polyandrous) marriages or group (polyamorous) arrangements would cause many of the relatively straightforward provisions in the conduct and dissolution of a marriage to become unworkable. Those problems are surmountable, as is evidenced in other times and places, but much/all of the settled statutes and case law would have to change.

2. Opening up this possibility would change the nature of the contract in way that would affect other couples. Today couples have an expectation that as long as the marriage endures, the marriage is exclusive. But with poly-xxxx marriage, who gets to decide whether your present spouse gets to marry another spouse? I suppose we could create some of opt-in/opt-out provision (and ask all existing marriage participants to make an election within one year, and then have some sort of mechanism for revoking that, without necessarily ending the marriage itself).

In contrast, the only direct effect that SSM has on already married people is that some married people will likely be offended that Jane and Julie are also married. That umbrage, however, doesn't materially alter the terms of anybody else's marriage.
11.2.2005 9:59pm
Remus Talborn (mail):
While multi-partner marriages might benefit the partners involved, the much greater potential for jealousy and rivalry among the partners make for a potentially more volatile arrangement than a two-person marriage, reducing the expected caretaking benefits to its participants. In a multi-partner marriage, it may also be unclear who has primary caretaking responsibility if a partner becomes sick or injured; there is no such uncertainty in a two-person marriage.

Oh, this is nonsense. Maybe there is less potential for jealousy, because there is no reason to go outside of the marriage for an additional sex partner and the additional sex partner is someone you know and trust. Who says there is uncertainty? Get a power of attorney. And Terri Schiavo was in a two-person marriage, and her family fought over her end-of-life decisions. There was plenty of uncertainty there. In other words, this is speculaive bunk, Carpenter. You must do much better than this.
11.2.2005 10:08pm
On Lawn (mail) (www):
Dale,

I'm hoping that soon you will address the shortcomings of your argument...

1) Why do you require "marriage" for gay/lesbian couples. You seem to beleive the benefits are directly transferable (though you admit you have no basis for such a belief).

2) Why do you think that other relationships do not benefit from being called a marriage? You are only concentrating on gay/lesbian relationships which is only a subset of dependancy relationships that can even have dependant children.
11.2.2005 10:13pm
Marcus1:
Polygamy also poses an administrative and practicality problem. The government/employers can't really be expected to provide benefits to multiple spouses. Tax treatment of a polygamous marriage would also have to be evaluated separately, I think, whereas gay marriage would be very similar to the modern heterosexual marriage. Who knows what would happen with intestate succession or other marriage-based laws.

There's also less of a moral argument for polygamy. Without SSM, gays can't get married at all. Marrying against one's sexual orientation is hardly a viable option. The absence of polygamy, on the other hand, doesn't deprive anybody's right to get married -- it just limits the number of times they can get married at once. As such, the justification for polygamy just isn't as compelling.
11.2.2005 10:22pm
Roger Schlafly (www):
Gay marriage is arising in the most liberal societies, characterized by representative democracy, ...
Strange claim. The movement for same-sex marriage in the USA has not been a democratic movement. It has been entirely dictated by elite judges, against the majority wishes of the people.
11.2.2005 10:29pm
OK (mail):
There is already tremendous pressure in Western Europe and Canada to recognize polygamous Muslim marriages, many of which involve underage females. SS marriage has no precedence but Islam has allowed polygamous marriages since its inception because the culture it developed in had polygamous marriage as the norm.

How do you change marriage to include same sex couples and not allow Muslims to follow their centuries old tradition of polygamy? I don't think you can.
11.2.2005 10:32pm
Julian Morrison (mail):
I don't think you can necessarily assume the public's opposition to polygamy will remain strong forever. After all, a decade ago, gay marriage was politically inconcievable, and gays were fighting for civil unions (and losing).

Things move fast, when the underlying culture shifts.
11.2.2005 11:05pm
Oh my word:
Right now, I think Dale is knocking down strawmen against gay marriage. He has not addressed what many consider the more subsantive arguments against it, such as those raised in the comments. It looks like he has already composed most of these blog posts--which is fine, but they seem to focus on strawmen like polygamy and such.
11.2.2005 11:17pm
Kendall:
OnLawn -
"2) Why do you think that other relationships do not benefit from being called a marriage? You are only concentrating on gay/lesbian relationships which is only a subset of dependancy relationships that can even have dependant children."

Are you ASKING Professor Carpenter to go off topic? why should he address such irrelevant tangential issues in a gay marriage debate? Some other relationships might benefit if they were given marriage rights but is that germaine when we're specifically discussing same sex marriage?
11.2.2005 11:19pm
Remus Talborn (mail):
Polygamy also poses an administrative and practicality problem. The government/employers can't really be expected to provide benefits to multiple spouses. Tax treatment of a polygamous marriage would also have to be evaluated separately, I think, whereas gay marriage would be very similar to the modern heterosexual marriage. Who knows what would happen with intestate succession or other marriage-based laws.

This is speculative bunk, too. Marriages these days are thought of as groups of four. Why? Because the tax code presumes there are two kids and two spouses. Trusts and wills also takes into account multiple spouses already, e.g., if you have a new wife whom you haven't yet put in your will and a wife from whom you just got divorced. Not to mention that countries with English common law and Anglo-legal systems have polygamy laws we could borrow from, i.e., Uganda, which is a former British colony.

There's also less of a moral argument for polygamy. Without SSM, gays can't get married at all. Marrying against one's sexual orientation is hardly a viable option. The absence of polygamy, on the other hand, doesn't deprive anybody's right to get married -- it just limits the number of times they can get married at once. As such, the justification for polygamy just isn't as compelling.

That is nonsense. A gay man can marry any woman he wants, but not any man. Just like a polyagmist can marry his wives in sequence instead of all at once. There's no relevent difference.
11.2.2005 11:20pm
OK (mail):
My guess is that the end result of all of this (ten-fifteen years?) will be that there will no longer be a distinction between married and other. Taxes, social security, insurance etc. will be accorded to individuals as individuals, It will be against the law to ask if one is married, single, divorced. There will still be provision for dependent children but that won't reference the adult's relational status. Anything beyond that will be up to the individual (standardized contracts, religious rituals).
11.2.2005 11:24pm
On Lawn (mail) (www):
Oh My Word,

I'm with you on that one. Dale's commentary is like a joke that you get too well. A joke that is funny but when you understand what is really going on its really more painful to listen to than funny.

I have no drive to defend the arguments he's making. I don't identify with them at all. I don't even see much cheering like, "go Dale, that was a really well thought out argument". I don't think either side is identifying much with his strawmen at all.
11.2.2005 11:46pm
Wild Pegasus (mail) (www):
While it's true that polygamy is traditionally tied to illiberal societies, how many liberal societies were there really before, say, 1700? Not terribly many, so that's not much of a historical baseline to go by.

Moreover, while polygamy does raise annoying questions about sexual equality, it only does so because the typical pattern is one male and several females. But in a society where women are fairly equal to men, who's to say that there won't be just as many one female, many male marriages? And if the response to that is "the nature of men vs. the nature of women", then we're back to the liberal argument: the women are free moral agents capable of making that choice, even bad ones.

- Josh
11.2.2005 11:54pm
On Lawn (mail) (www):
Kendall,

why should he address such irrelevant tangential issues in a gay marriage debate?

First, he did in part in the article above when he claimed to argue why these benefits would never be given to polygamists. (Just take his word for it).

While you are lecturing Prof Carpenter on just what arguments he should or shouldn't be making, please inform him that his refutation of the logical argument is woefully incomplete and a disservice to the case he's presented over the past two days.

He is talking about benefits. For the past two days he has been arguing that a marriage certificate will bring stability, benefits, to gays and those who interact with them. While he acknowledges he has no basis in reality why or how such benefits would be realised -- relying on his personal theories *entirely* -- his refutation of the logical extention of his argument is that he claims that he is thinking much more broadly than the individual gay or lesbian. He sees community benefits also, apparently but that is also suspect as the benefits he argues are all still benefits for gays just others can hang on for the ride. That is a charletan's argument.
11.3.2005 12:04am
OK (mail):
When I said that I didn't think we could deny Muslim polygamy if SSM is legalized, I didn't mean to imply that I thought that was a desireable outcome. I can't think of anything worse. I meant it as an obvious and unfortunately very predictably end of the "slippery slope" idea that is treated with such derision. It is what will happen and it is something that we should very much not want.

As with muticulturalism in Europe, the unintended consequences will open our society to forces we that will be hard to contain.
11.3.2005 12:07am
Brian G (mail) (www):
Lawrence assures that the slippery slope will be slippery indeed. Take a look at many cases since that "uncommonly silly" decision was issued. Polygamy, beastiality, incest, etc. All have pointed to Lawrence as a defense.

Gay marriage is not a Constitutional right. It is not deeply-rooted in the nation's history as to be deemed fundamental, nor is it implict in the concept of ordered liberty. If my state votes to allow it, then I am fine with it. Until then, no court should be able to impose it on us. (I know, fat chance).

For the record, I'd vote yes if given the chance, because it isn't my decision to say who can commit to whom. However, it is my decision on issues that do not implicate constitutional rights.

I am sure many will say it is a Constitutional right. I'm sure I'll get Griswold on down. Nevertheless, they will be all decisions that are just like any decision that imposes gay marriage: Judges legislating from the bench creating rights out of the cloth. They should not eminate into that penubra.
11.3.2005 12:19am
LTEC (mail) (www):
I think this argument is very weak.

One problem (mentioned in earlier comments) is that the changes that come about in the future are not necessarily predictable by the results of polls taken in the present. An analysis of "slippery slopes" has to be a lot more subtle than that.

Another problem is that Carpenter is merely explaining why he, and people like him, do not support polygamy, and why they are completely logical and consistent to take this position. True. But I can't imagine that anyone seriously believes that it is because of traditionalists like Carpenter that we find ourselves discussing this issue today. It is rather because of people who make very different arguments. Many of these arguments are of the "anti-discrimination" variety, and carry within them an internal logic that Carpenter doesn't wish to follow. Many of these arguments are most definitely "based solely on augmenting the private happiness of two adults", and most of the people who make these arguments don't appear to have the traditional and subtle insights that Carpenter possesses.

One word I have not seen here is "bisexuality".
In fact, it seems to me that ever since the same-sex-marriage push has been on, activists have been almost totally silent about the "B" in LGBTQ. Just how is society supposed to recognize the romantic
aspirations of the "B"s, and why aren't the activists talking about this? Questions like this may seem silly or be of no interest to Carpenter, but they will definitely be central to the next stage in the debate.

(MY view, by the way, is that we will see the slippery slope of the diminishment of the State institution of marriage, and that this is not necessarily a bad thing.)
11.3.2005 12:20am
Julian Morrison (mail):
Polygamy, unlike gay marriage, has been tried and rejected.

Polygamy is really too broad a subject to make such blanket assertions about. Some types of polygamy have been tried, some not, and a lot of the experiments have been heavily "contaminated" with other parallel factors. You can't eg: talk about Mormon polygamy, without including discussions of patriarchic familiy structure, religious attitudes, the legal deal that ciminalized it, etc etc.

If anything the strongest argument contra polygamy is its complexity. In computer science terms it's the complexity difference between a "pair" (or "cons cell") and a "directed graph".
11.3.2005 12:21am
Salaryman (mail):
I'd like to thank Eugene and the conspirators for having Prof. Carpenter guest blog -- he presents the case for SSM powerfully and intelligently.

However, I hope he does not make tomorrow (as he suggests he might) what I believe to be the flawed argument that, because elderly or sterile opposite-sex couples are allowed to marry (or more broadly, because procreation is not made an absolute prerequisite to opposite-sex marriage), the purpose of marriage cannot reasonably be viewed as fostering procreation.

As Dale knows, all laws are to some extent over- or under-inclusive. A law designed to encourage (or discourage) behavior A may in practice reward (or punish) people who do not engage in A (or reward/punish those who engage in A only occasionally just as much as those who engage in A regularly). Similarly, the law may reward/punish some people who NEVER engage in A, or it may result in some combination of the above (i.e., rewarding/punishing less than all of those who engage in A while simultaneously rewarding/punishing some who do not).

This kind of imperfection is simply an unavoidable feature of law, and of all human endeavors, and it seems to me entirely unconvincing to point to the mere existence of some over- or under-inclusiveness respecting behavior A as "proof" that the statute cannot have had the purpose (or cannot have the effect) of encouraging/discouraging A.

Most of us would agree that the purpose (and, we hope, effect) of speed limits is to promote automotive safety. Nonetheless, few would deny that there are some drivers who regularly exceed the speed limit without incident. Similarly, most would admit that some drivers who do not exceed the speed limit (like those who drive 35 mph on the freeway or who simply drive badly although observing the speed limit) pose a safety risk. Yet, most of us would consider it silly to point to the safe drivers who regularly exceed the speed limit or the unsafe ones who drive below it as "proof" that speed limit laws have nothing to do with highway safety.

This seems little different from the argument that because a 65 year old widow can marry a 75 year old widower (or because sterile younger straight couples may marry, or because fertile straight couples can choose to be childless etc.), it is established, beyond a doubt, that marriage has nothing to do with procreation, and that any implication that it does is evidence of bigotry. Obviously, if only 10% of marriages currently resulted in children, one might justifiably discount the procreative argument against SSM, but I'd be shocked to learn the percentage was that low (I don't have the figures but I'm sure the professor does). But if there is some reasonable congruence between opposite-sex marriage and procreation, I can't see how the mere existence of some cases of over-inclusion (childless or infertile married couples) proves the lack of any procreative purpose or effect. (This is especially so since I've never seen this argument based on any claimed high percentage of childless marriages -- rather, it is assumed that even one example of a childless marriage is enough to disprove any procreative purpose).

Moreover, there are many better arguments to be made in favor of SSM on the procreation issue. For example, one could argue that since all statutes are over- or under-inclusive, SSM does not necessarily undermine a procreative purpose, but would have little effect on it, like the safe speeders or dangerous slow drivers have little effect on the general utility of speed limit laws. Or one could argue that marriage historically is less concerned with procreation/parenting than with property rights. Or that although the purpose of marriage has historically been to encourage procreation, that no longer is (or no longer should be) the case, for reasons X, Y and Z. Or one could make any of many other arguments I'm sure we'll see tomorrow. These arguments may vary in strength, but they're certainly an order of magnitude better than "Oh yeah? Well, my 80 year old grandmother just got married, so there!"

Maybe I'm missing something (for example, maybe a great majority of straight marriages are childless): if so, I'd love to be steered right.
11.3.2005 12:40am
Salaryman (mail):
I'd like to thank Eugene and the conspirators for having Prof. Carpenter guest blog -- he presents the case for SSM powerfully and intelligently.

However, I hope he does not make tomorrow (as he suggests he might) what I believe to be the flawed argument that, because elderly or sterile opposite-sex couples are allowed to marry (or more broadly, because procreation is not made an absolute prerequisite to opposite-sex marriage), the purpose of marriage cannot reasonably be viewed as fostering procreation.

As Dale knows, all laws are to some extent over- or under-inclusive. A law designed to encourage (or discourage) behavior A may in practice reward (or punish) people who do not engage in A (or reward/punish those who engage in A only occasionally just as much as those who engage in A regularly). Similarly, the law may reward/punish some people who NEVER engage in A, or it may result in some combination of the above (i.e., rewarding/punishing less than all of those who engage in A while simultaneously rewarding/punishing some who do not).

This kind of imperfection is simply an unavoidable feature of law, and of all human endeavors, and it seems to me entirely unconvincing to point to the mere existence of some over- or under-inclusiveness respecting behavior A as "proof" that the statute cannot have had the purpose (or cannot have the effect) of encouraging/discouraging A.

Most of us would agree that the purpose (and, we hope, effect) of speed limits is to promote automotive safety. Nonetheless, few would deny that there are some drivers who regularly exceed the speed limit without incident. Similarly, most would admit that some drivers who do not exceed the speed limit (like those who drive 35 mph on the freeway or who simply drive badly although observing the speed limit) pose a safety risk. Yet, most of us would consider it silly to point to the safe drivers who regularly exceed the speed limit or the unsafe ones who drive below it as "proof" that speed limit laws have nothing to do with highway safety.

This seems little different from the argument that because a 65 year old widow can marry a 75 year old widower (or because sterile younger straight couples may marry, or because fertile straight couples can choose to be childless etc.), it is established, beyond a doubt, that marriage has nothing to do with procreation, and that any implication that it does is evidence of bigotry. Obviously, if only 10% of marriages currently resulted in children, one might justifiably discount the procreative argument against SSM, but I'd be shocked to learn the percentage was that low (I don't have the figures but I'm sure the professor does). But if there is some reasonable congruence between opposite-sex marriage and procreation, I can't see how the mere existence of some cases of over-inclusion (childless or infertile married couples) proves the lack of any procreative purpose or effect. (This is especially so since I've never seen this argument based on any claimed high percentage of childless marriages -- rather, it is assumed that even one example of a childless marriage is enough to disprove any procreative purpose).

Moreover, there are many better arguments to be made in favor of SSM on the procreation issue. For example, one could argue that since all statutes are over- or under-inclusive, SSM does not necessarily undermine a procreative purpose, but would have little effect on it, like the safe speeders or dangerous slow drivers have little effect on the general utility of speed limit laws. Or one could argue that marriage historically is less concerned with procreation/parenting than with property rights. Or that although the purpose of marriage has historically been to encourage procreation, that no longer is (or no longer should be) the case, for reasons X, Y and Z. Or one could make any of many other arguments I'm sure we'll see tomorrow. These arguments may vary in strength, but they're certainly an order of magnitude better than "Oh yeah? Well, my 80 year old grandmother just got married, so there!"

Maybe I'm missing something (for example, maybe a great majority of straight marriages are childless): if so, I'd love to be steered right.
11.3.2005 12:40am
On Lawn (mail) (www):
Dale,

First, modern liberal societies have emphasized values like individualism and sex equality that seem inconsistent with polygamy as it has been practiced. Gay marriage, by contrast, is fully consistent with these values.

Wait, stop. Flagrant contradiction here.

A same-sex coupling completely denies the representation of one gender in family governance. If polygyny dilutes the representation of either gender, and that to you is contrary to democratic princples of enterprise and liberalism, then surely a gay marriage is the absolute worst case scenario. It is much worse, not better along that metric.
11.3.2005 12:50am
OK (mail):
Slippery slope: Two mothers is child abuse; two fathers is child neglect.
11.3.2005 12:55am
Shelby (mail):
Since multi-partner marriages have almost always taken the form of one man having many wives

As Julian Morrison says, "Polygamy is really too broad a subject to make such blanket assertions about." If you're addressing the logical slide, as you were when you made this assertion, recent trends matter more than what occurred hundreds or thousands of years ago. There are many modern polygamists for whom polygamous structure is fluid and not "one many, many wives". It is as likely to be two men, one woman as the reverse, and larger families will usually have more than one of each gender.
11.3.2005 1:00am
On Lawn (mail) (www):
Finally, it should be said that slippery-slope arguments about marriage have a certain Chicken Little quality about them. The ominous slide to polygamy has been a favorite trope.

Included in that slippery slope is calling situations a marriage like two sisters/friends/extended family who band together to raise children. These do not have the same appeal to moral repugnance, but the argument is exactly the same. If your arguments suggest that calling a dependant relationship (with children as dependants) a marriage will benefit them, why do you seem to only concern yourself with gay-lesbian couples?

You don't like polygamy for reasons that you feel provide a distinction...

1) They don't have the political support (well ss"m" doesn't either)
2) SS"m" has communitarian benefits which broadens it beyond just the selfish reasons we hear so often. (That is if your trickle-down theory of social engineering is to be believed)
3) Polygyny creates strife and jealousy because of the multiple partnering (though ss"m" goes beyond the binary relationship to provide children, also causing jealousy and legal strife)
4) Polygyny is more in line with liberal democratic principles (which is debunked above in this comment)

Did I miss any? I don't think you've really given fair consideration of just how alike they are. The differences you mention don't really turn out to be differences at all.
11.3.2005 1:02am
A Guest Who Enjoys This Site:

After gay marriage, we will move on and forget about the isolated bands of polygamists living in the deserts of Utah, as we have after every reform of marriage.


Oh, how I do so love it when an individual wants to defeat unwanted stereotyping by using stereotyping to dismiss inconvenient issues. Ignoring groups such as the Hmong (who practice/practiced polygamy), as has been pointed out, there are issues of polygamy with Muslims. According to the Muslim Women's League:


...when an American Muslim takes a second wife (as is rumored to be the practice of some Islamic centers), the second wife is denied her "legal" proof of marriage, and will essentially be kept as a hidden or secret wife, which contradicts the Quranic criterion of equity between wives.


Thus, the female American Muslims have a ready-made, First Amendment argument in favor of polygamy; they are being forced to subjegate their Quranic 'equality' in deference to American laws against polygamy. Although the Islamic Centers have found this to be tolerable in that "monogamy is not against Islam, we don't have a case for dissent," it does constitute a potential infringement on the woman's religious beliefs to deny her legal recognition of a marriage permissible by Islam.

And, what of the polygamous marriage that migrates to the U.S.? Do we deny their legally recognized status as "married" from the host country? (As a matter of fact, we do. But, immigration law is, for the most part, a different discussion.)

According to Reynolds v United States (1878), it was held that: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." Thus, it was held that Reynolds could be held accountable and be punished for the crime of bigamy under the statutes for the Territory of Utah.

In Davis v. Beason (1890), the Supreme Court stated that: "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man."

Sound familiar? Homosexuality is not a 'crime?' (But, largely based on RECENT Supreme Court rulings.) Alright, why was polygamy considered to be so? Because, according to the Court, such relationships "tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man." Doesn't that sound very similar to the arguments presented against homosexual marriage?

To be intellectually consistent, how do you justify the criminalization of one type of "practice" and not the other if the arguments presented are based in the same sensibilities? And, even if we ignore the "criminality" aspect, certainly the 'societal aversion' is based in a common sense of morality. As the Court recognized:


With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.


Isn't this the very point you made in your initial post regarding how you wished to proceed with this discussion? I quote:


If your religious faith leads you to oppose gay marriage, and if your faith further commands that this tenet be mandated in secular law, not much I say this week will matter to you. However, if this tenet (like others?) need not necessarily be mandated in secular law, come along for the ride. The faith-based traditionalist opposed to homosexuality, like all those generally uncomfortable with homosexuality, might reluctantly reconcile himself to gay marriage as the most realistic public-policy way to make the best of the bad.


So, if you and the Supreme Court agree that 'secular law' should not be bound by a sense of morality derived from religious tenets, then how can we discriminate against polygamy/bigamy when such laws are predominantly based on a shared sense of morality, derived from Judeo-Christian tradition; as evidenced by the Court's reference to bigamy/polygamy being forbidden by "all civilized and Christian countries.

In fact, it was Justice Scalia who ended up in the same place just over 100 years later in the Romer v. Evans decision in 1996? In the dissent of Scalia, Rehnquist, and Thomas to the majority decision in Romer, Scalia wrote:


But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, 4; N. M. Const., Art. XXI, 1; Okla. Const., Art. I, 2; Utah Const., Art. III, 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis - unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.


So, if you don't think the polygamy discussion is valid and that Davis v. Beason (1890) is too antiquated, bear in mind that:


This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the [ ROMER v. EVANS, ___ U.S. ___ (1996) , 16] Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993). It remains to be explained how 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?


Justice Kennedy, "the same Justice who writes for the...Court today," sidestepped the moral/social implications of Beason in the majority decision in Romer by citing that Beason primarily focused on the issue of precluding an individual's right to vote. The problem with Kennedy's contention is that, although the Beason decision did analyze "the laws which authorized the legislature of the territory of Idaho to prescribe the qualifiations of voters," this was only one portion of the decision process. They also referred to Reynolds in their analysis.

Further, the issue before the Court was NOT one of the limitations placed on an individual's right to vote, the Court was focused on the following:


On this appeal our only inquiry is whether the district court of the territory had jurisdiction of the offense charged in the indictment, of which the defendant was found guilty. If it had jurisdiction, we can go no further.


In Beason, it was found that they did have jurisdiction and the judgement was affirmed. Later Courts (Brandenburg v. Ohio 1969) "overruled" Beason in regards to adverse consequences for advocacy; but, polygamy laws, and thereby the morality upon which such laws were based, are still on the books. So, if you are going to argue that 'secular law' be based on a morality separate from that which engendered BOTH anti-homosexual 'practices' and punitive measures related to the 'practice' of polygamy and if you are going to argue that we must use this 'non-religious' sense of morality to analyze and recognize the viability of homosexual marriage, there is no intellectually honest or consistent way to claim that polygamy is a separate issue insofar as it being a minority 'practice.'


Further, using marriage to recognize adult love is a step down the slope already taken by straight couples. Like it or not, many people in the West already understand marriage as companionate; they don't need gay marriage to reach that conclusion. So even if gay marriage were justified solely by the love same-sex partners have for one another, recognizing such relationships would be more analogous to taking a step to one side on a slope already partially descended, not an additional step down the slope.


How does this 'side-stepping' not apply to polygamous arrangements? You have consenting, willing adults, presumably in love, who understand marriage as companionate. In fact, polygamous-like relationships would seem to be readily understood and historically tolerated (even if not universally sanctioned by legal 'marriage') by many societies. "Open" marriages? "Swinging?" "Free Love?"


Any proposal for the expansion of marriage must be good for both individualistic reasons and communitarian reasons.


Historically, there HAVE been both individualistic and communitarian reasons, including survival, for polygamy. We no longer see polygamy/polygyny as legitimately valid or necessary in acquisition of these benefits; but that is irrelevant to the fact that they, nevertheless did, and to some limited degree, still do exist. The relevant issue is that we have determined, in this society, that the negatives outweigh the benefits. Unfortunately, these perceived negatives are, again, based on the same 'traditional' sensibilities that deem homosexuality immoral and harmful to society.


...polygamy takes many more women than men out of the marriage pool. This leaves heterosexual men with fewer marriage opportunities. Unattached men with poor marital prospects destabilize societies, and large numbers of such men in a society require strong mechanisms of state control to rein them in.


Inconsistent and nonfactual on its face? That is, unless you are simply advocating for "Gay" and NOT "Lesbian" marriage? Otherwise, homosexual marriage would seem to be removing women from the mix. Already removed due to their homosexuality? We don't expect any bisexual women to join in 'lesbian' marriage relationships? Remember, we're talking about a relatively small percentage of the overall population; whether we are focused on homosexual marriage OR polygamy.


This discussion shows that gay marriage and polygamous marriage present very different issues of history, data, logic, and experience.


As we have just seen, this discussion shows that gay (homosexual) marriage and polygamous marriage present very different issues - IF - you ignore history or engage in post-modernist revisions thereof; ignore inconvenient data; use false premises; and focus solely on the homosexual 'experience.'


And nothing in this complex discussion of history, data, logic, or experience turns on whether gay marriages have previously been recognized.


Now, this is true. Especially since in a complex discussion of history, data, logic, or experience, it turns out that gay (homosexual) marriage has been, for the most part, largely UN-recognized.


Gay marriage and polygamous marriage should each be evaluated on its own merits, not treated as if one is a necessary extension of the other.


Yes, this would make it more convenient for pro-homosexual marriage advocates. That way, they wouldn't have to deal with pesky historical references, intellectual consistency in the morality based opposition, and inconsistent legal rationale. Not to mention providing the ability for homosexual marriage advocates to stereotype other behaviors while adamantly rejecting perceived 'stereotyping' of homosexuals.


That is, it will be accepted when Americans have become convinced that gay marriage is a good idea for traditionalizing individualistic and communitarian reasons.


A new tradition?! No wonder Carpenter is so dismissive of the 'old' moralities, the 'old' historical traditions, and the 'old' cultural identity. Out with the 'old.' In with the 'new.' You can't trust anyone over 30. Religion is the opiate of the masses.

Why is this sounding familiar?
11.3.2005 1:11am
David (not the registered one):
Roger Schafly argues that


The movement for same-sex marriage in the USA has not been a democratic movement. It has been entirely dictated by elite judges, against the majority wishes of the people.


This is a significant exaggeration, for reasons that I explained in another comment thread. (Sorry to repeat myself, but I think the point is an important one.) While judges have admittedly played a role, it is simply not true to say that the movement for same-sex marriage in the USA has been "entirely dictated by elite judges" or has always been "against the majority wishes of the people."

The California legislature recently passed a bill allowing same-sex marriage, although it was vetoed by Governor Schwarzenegger. The Massachusetts legislature recently declined to go forward with an amendment to the state constitution to counteract the judicial decision allowing same-sex marriage, and polls show that a majority of Massachusetts voters wouldn't approve such an amendment-- two pieces of evidence tending to suggest that the decision to allow same-sex marriage in Massachusetts wasn't "against the majority wishes of the people." The Connecticut legislature passed a law, signed by the (Republican) governor and now in effect, allowing same-sex civil unions that include essentially all the rights of marriage; you'd have to attach an awful lot of importance to names for this not to be a major piece of evidence against the claim that the movement for same-sex marriage is exclusively judge-driven and in conflict with the popular majority. And in Oregon, the state Senate passed a bill, supported by the (Democratic) governor, that would have allowed similar marriage-equivalent civil unions; it died when the Republican leadership of the state House refused to allow a vote on it.

The blue states are part of the USA too, and marriage is traditionally handled at the state level. There are certainly a lot of states in which same-sex marriage wouldn't be acceptable to the legislature or the "majority wishes of the people," but Roger appears to be making the stronger claim that this is true of all states, and I think that's a very dubious claim.
11.3.2005 1:22am
A Guest Who Enjoys This Site:
David (not the registered one): You cite...


The California legislature recently passed a bill allowing same-sex marriage, although it was vetoed by Governor Schwarzenegger.


However, you conveniently ignore two things. First, the California Legislature is NOT the majority. Second, Schwarzenegger vetoed the bill because the majority DID pass Proposition 22 in 2000. As Jack Webb said, just the facts...

"On March 7, 2000, the people of California voted on Proposition 22, a proposal to enact a state "Defense of Marriage Act" as an initiative statute. The text of Prop 22 reads:


"Only marriage between a man and a woman
is valid or recognized in California."



Proposition 22 was ratified by an overwhelming majority of California voters, prevailing by a 23-point margin. Statewide, 4,618,673 votes were cast in favor of the proposition, comprising 61.4% of the total vote. Opponents garnered 2,909,370 votes, for 38.6% of the vote.

Final vote counts revealed that Proposition 22 won in 52 of California's 58 counties, including all of the major metropolitan areas except for San Francisco. The six counties which did not approve Prop. 22 were all in the immediate San Francisco Bay area, including: Alameda county, Marin county, San Francisco county, Santa Cruz county, Sonoma county, and Yolo county."
11.3.2005 1:35am
A Guest Who Enjoys This Site:
David (not the registered one):


The Connecticut legislature passed a law, signed by the (Republican) governor and now in effect, allowing same-sex civil unions that include essentially all the rights of marriage...


I do hope you recognize that civil unions are NOT the same as marriage. In fact, the very fact that they authorized civil unions rather than homosexual marriage could be used to support an argument claiming that the politicians did not authorize homosexual marriage because they were concerned the majority would not support it; or them come election time.

In fact, the Connecticut law you cite stipulates the definition of marriage as between one man and one woman?
11.3.2005 1:43am
On Lawn (mail) (www):
The California legislature recently passed a bill allowing same-sex marriage, although it was vetoed by Governor Schwarzenegger.

Not only did that bill ignore the will of their constituents, it ignored the state constitution. What do you find democratic about that?

The Massachusetts legislature recently declined to go forward with an amendment to the state constitution to counteract the judicial decision allowing same-sex marriage, and polls show that a majority of Massachusetts voters wouldn't approve such an amendment

There were two parts to that ammendment, the overturning of the judicial opinion still has widespread support. The writing of CU's into the constitution does not. The democratic process does not endorse ss"m", and if I have it right the judges who ruled in favor are even being lined up for impeachment.

The blue states are part of the USA too, and marriage is traditionally handled at the state level.

The list of blue states that have passed marriage defining regulation is much larger than you give credit. Kerry opposed ss"m".
11.3.2005 1:56am
A Guest Who Enjoys This Site:
David (not the registered one): As for Massachusetts...

Here's how CNN wrote it up:


Underscoring its original ruling last November, Massachusetts' highest court said Wednesday that only full marriage rights for gay couples, not civil unions, would conform to the state's constitution. [This case is something I went into, at length, in another thread related to homosexual marriage. Simply stated, the Court found that homosexual marriage was protected based on specific language found uniquely in the state's constitution.]

Wednesday's ruling came a week before a constitutional convention will be held by state lawmakers to consider an amendment legally defining marriage as a union between men and women. That amendment would have to be ratified by both houses of the Legislature in two successive legislative sessions and then be ratified by voters.

The earliest voters could consider a constitutional amendment would be November of 2006. The Massachusetts high court ruling from last November and reiterated on Wednesday will become state law in mid-May, regardless of what the constitutional convention decides.

"The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage," said Massachusetts Gov. Mitt Romney in a written statement on Wednesday's opinion. "This issue is too important to leave to a one-vote majority of the [Supreme Judicial Court]."

In November, the Massachusetts high court cleared the way for lesbian and gay couples in the state to marry, ruling 4-3 that commonwealth attorneys "failed to identify any constitutionally adequate reason" to deny them the right. The November 18 ruling gave the Legislature six months to rewrite the state law to conform to the ruling.

The state Senate then asked the court whether the commonwealth could satisfy its constitutional concerns by granting civil unions to gays and lesbians, but forbidding them from obtaining civil marriage licenses...



Therefore, the hesitance was NOT based on polls, but on the Massachusetts Supreme Court decision; a decision that where FOUR judges out of seven (i.e., ONE judge would have made the difference) concluded that such an amendment would be unconstitutional insofar as language already present in the state constitution. That's NOT a very strong case for majority support of homosexual marriage. In fact, it appears to be more in support of Schafly's arguments about "elite judges."

In short, your contentions are not supported by involved the California, Connecticut, and Massachusetts examples you cite unless you completely ignore the facts involved. But, I will grant, this seems to be the pattern being promoted by Carpenter himself.
11.3.2005 1:59am
David (not the registered one):
Guest:

With regard to California, I don't think the passage of Proposition 22 in 2000 is sufficient to establish that as to California "[t]he movement for same-sex marriage in the USA... has been entirely dictated by elite judges, against the majority wishes of the people"-- which is the claim that Roger Schafly was making. True, five years ago, it appears that a majority of Californians opposed same-sex marriage. I've seen reasonable arguments based on the placement of the statutory section enacted by Prop 22 in the broader statute, and the ballot materials given to voters, that Prop 22 actually only banned recognition of out-of-state same-sex marriages; in-state same-sex marriages were already forbidden by a different, legislatively enacted section of the Family Code not amended by Prop 22. But even ignoring this, there's a significant difference between an action taken by a legislature elected by the people, and one "entirely dictated by elite judges." Roger framed his claim as one about the undemocratic acts of (unelected) judges, not an allegation that some duly elected legislators have gone against the (five-year-old) wishes of their constituents.

As for Connecticut, I think it is debatable how nearly identical civil unions are to marriage; as I said, it depends on how much importance one attaches to the word. (You are correct that the Connecticut law defines the word marriage as referring to one man and one woman.) They are at least very similar. I think civil unions and same-sex-marriage-called-marriage are part of the same "movement" towards substantive marriage rights for same-sex couples, and it strikes me as unconvincing to suggest that legislative enactment of civil unions is no evidence at all for the democratic and not-entirely-judge-dictated nature of the overall movement.

With respect to Massachusetts, you're conflating the state Supreme Court's reaction to a proposed civil union statute with the legislature's refusal to approve a proposed constitutional amendment. The CNN article you cite refers to the Massachusetts Supreme Court's having said that a statute establishing civil unions wouldn't be sufficient under their reading of the current state Constitution. The CNN article does not say that the Massachusetts Supreme Court threatened to strike down an amendment to the state Constitution, and in fact it never did so.

On Lawn's comment on the Massachusetts' legislature's action is closer to being correct, but still off the mark. It is true that the amendment approved by the pre-2004-elections legislature and rejected by the post-2004 legislature would have enacted civil unions as well as gotten rid of same-sex marriage, and that some of the opposition to it came from conservatives opposed to the civil-union portion. But the only thing that stopped the pre- and post-2004 legislatures from instead passing an amendment abolishing same-sex marriage without establishing civil unions was that such a stronger amendment lacked majority support even before several anti-SSM legislators were replaced by pro-SSM legislators in the 2004 elections. If I remember correctly, a simple bar on same-sex marriage uncoupled to a civil-union compromise was actually offered by some members in the pre-2004-election constitutional convention, but failed to win the necessary votes to survive to the post-election convention.
11.3.2005 2:26am
A Guest Who Enjoys This Site:
David (not the registered one): Actually, as regards the California issue, my argument was based on your inferred premise:


While judges have admittedly played a role, it is simply not true to say that the movement for same-sex marriage in the USA has been "entirely dictated by elite judges" or has always been "against the majority wishes of the people."


In the California case, the Legislature's passage of the bill was in direct opposition to the majority's wishes. This was Schwarzenegger's argument. If there is a sense that, five years later, the majority has changed their opinion, then a new proposition can be placed on the ballot and voted on. But, passage of a bill by the State Legislature in direct conflict with the expressed will of the majority of voters IS consistent with Schafly's basic premise; i.e., that it is not a majority of the people, but a small minority of the intelligentsia which is furthering the homosexual marriage agenda.

As for Connecticut, your statement - "I think it is debatable how nearly identical civil unions are to marriage" - was not the issue. In fact, I made the very point that: "I do hope you recognize that civil unions are NOT the same as marriage." Actually, Connecticut's move was in preemptive anticipation of judicial action; the creation of civil unions as distinct from marriage, while simultaneously providing a DOMA-style definition of marriage.

According to Steve Miller at the Independent Gay Forum, the civil unions bill was actually endangered by gay rights activists threatening an all-or-nothing campaign for homosexual marriage. Further, he states:


In a sense, this debate could be looked at as Vermont vs. Massachusetts. In the former, a comprehensive civil unions law was passed following a court order that gays be given equivalent rights; in the latter, the state's highest court ordered that gays be granted full marriage equality. The Massachusetts' ruling, however, unleashed a backlash that led many states to pass constitutional amendments barring both same-sex marriage and (in many instances) civil unions, and gave momentum to a federal constitutional amendment that would do the same.


This backlash and concern over court edicts is what prompted the legislation; particularly the late-added amendment defining marriage as between one man and one woman. Just because the court hadn't yet taken action, doesn't mean the legislature didn't move in anticipation of potential judicial rulings; which GLAD has already done in filing legal briefs that the passed legislation violates the state's constitution. As Cindy Ellen Hill states in her Vermont Woman article "Civil Unions and Marriage Laws in New England:"


While the Connecticut Legislature was not under direct court order as Vermont's was, they were indeed mindful of litigation considerations. Seven same-sex couples who had applied for Connecticut marriage licenses and been denied filed suit last August in Connecticut Superior Court. While no decision has yet been issued, there are those in the Connecticut Legislature who voted for civil unions solely on the hopes of precluding a court order for marriage.


As for Massachusetts, the reason the amendment lacked majority support was directly related to the Massachusetts Supreme Court decision; both on the decided case AND on the advisory question submitted to them by the Legislature. As I posted on another thread:


As the Massachusetts Supreme Court pointed out in its 2003 advisory decision related to the State Legislature's attempt to extend 'marriage' benefits to 'civil unions:' "under our Federal system of dual sovereignty, and subject to the minimum requirements of the Fourteenth Amendment to the United States Constitution, "each State is free to address difficult issues of individual liberty in the manner its own Constitution demands." Further, in Goodridge v. Department of Public Health (2003), this same court explicitly stated: "Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach..."

The problem, as the Massachusetts Supreme Court stated, stemmed from the fact that: "The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life..."

It held that, based on the language found in the State's Constitution, i.e., "The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens...", that by not allowing homosexual marriage, the State was creating 'a second-class' of citizens.



Thus, the Massachusetts Supreme Court had already put the Legislature on notice that anything short of 'homosexual marriage' was going to be found 'unconstitutional' under the state constitution's unique language. So, attempting to parse this decision, i.e., Goodridge and the advisory response, from an actual striking down of an amendment that the Legislature felt precluded from proffering due to the Court's 'advice' and precedent is a misleading stretch. What the CNN article points to is this background of 'Court warns Legislature.'

So this is not a case of nonsequiter conflation of my part. It is, in fact, pointing to a causal relationship between the Court's rejection of the statute and the Legislature's refusal to proffer the amendment. It is certainly not unprecedented that a Legislature would be reluctant to pass an amendment which the Court has already stipulated through precedent and advise that they would be disposed to nullify as "unconstitutional."

There is also a history in Massachusetts of other problems related to the passage of such an amendment. According to the Massachusetts Family Institute...

1.) In 2002, a Protection of Marriage Amendment (initiative petition) was filed after the collection of 130,000 signatures. It passed through all the legal hoops and challenges, and then a maneuver by the Senate President adjourned the constitutional convention without a vote, effectively killing the amendment. The primary proponent of the amendment requested a decision by the state supreme judicial court (SJC) asking whether the legislature had done their duty by adjourning. The answer came back that they had not, but there was no enforcement, so the legislative session ended without action. The SJC rejected an appeal to the full court in this matter early in 2003.

2.) Massachusetts Family Institute drafted and proposed the Marriage Protection and Affirmation Amendment (Ma&Pa) to Representative Phillip Travis (D-Rehoboth). Representative Travis agreed to sponsor the bill, enlisting 13 of his colleagues as cosponsors for Ma&Pa. Ma&Pa was a Legislative Amendment, which did not require the collection of signatures. It needed a majority of the 200 legislators rather than the 25 percent that an Initiative Amendment needed for passage.

A hearing was held on April 28, 2003 at which testimony was heard in support of and in opposition to the Ma&Pa. The House adopted an order offered by Speaker Thomas Finneran calling for the House and Senate to convene in a joint session on May 14 to consider amendments to the State Constitution. After a brief session, the convention recessed until November 12, 2003. On November 12, the Legislature once again voted to recess the convention until February 11, 2004.


So, we see, once again, a minority of individuals holding up the process. But, as the Washington Post reported on 30 March 2004:


Massachusetts lawmakers yesterday passed a constitutional amendment to define marriage as the union of a man and a woman and to make their state the second in U.S. history to create civil unions for homosexuals.
Lawmakers hope the amendment's passage, the first step in a process that could succeed no earlier than November 2006, would increase pressure on the Massachusetts Supreme Judicial Court to delay its order that the state begin performing homosexual "marriages" on May 17.
Within moments of the 105-92 vote, Gov. Mitt Romney, a Republican, said he would seek a formal stay, asking the state's high court to delay implementation of its November ruling until after the constitutional amendment process is complete.



Well, we know that the Court did not delay implementation. In fact, the Court rejected a number of petitions to delay implementation pending the amendment process. So, once again, we have a select group of judges mandating a process and refusing to allow a legislative majority passed, constitutional amendment to run its course before implementing this process.

This seems consistent with Schafly's contention.

The rejection of the amendment by the new legislature in September of 2005 had more to do with the de facto marriages of over 6,500 homosexual couples, the political realities of forcible divorce of these couples, and, again, the Court's predisposition. According to the Boston Globe, State Senator Bill Nees felt that it was no longer an appropriate compromise given that - "Gay marriage has begun..." But, the Boston Globe points out that part of the reason for the amendment's rejection is that the compromise was no longer acceptable, not in resignation of the existence of homosexual marriage, but in that:


Opponents of gay marriage also declared victory, saying the defeat of the amendment paves the way for the launch of a second, more restrictive proposed amendment that would ban gay marriage without allowing civil unions. The earliest that could get on the ballot in 2008.



According to Wikipedia, in Massachusetts:


Opponents of same-sex marriage are currently collecting signatures for a ballot initiative that would ban same-sex marriage without any provision for civil unions. If successful, the proposal would go to voters no earlier than 2008. Same-sex marriage advocates plan to take the issue to court, citing a law that states voters cannot overturn a right given by a Court.


So, even with this latest effort, we see that homosexual marriage proponents intend to use the judiciary to block the process if popular support doesn't seem to be with them.

Sounds like Schafly's 'spin' might have better factual support than yours.
11.3.2005 5:12am
Medis:
I'm a little confused by some of the commentary. People seem to be arguing that it is possible that the unique issues raised by group marriages may not provide an adequate justification against group marriage, or that these issues might be surmountable, or so on. They then seem to claim that therefore Dale has not demonstrated a distinction between gay marriages and group marriages.

But Dale's distinction was ultimately based on the fact that group marriages raise unique issues, not on whether those issues will ultimately prevent us from ever adopting group marriages. In other words, his point is just that by endorsing gay marriage, we do not somehow lose our ability to independently consider the possible benefits and harms of group marriages.

And indeed, the fact that we are doing so in these comments actually supports his overall distinction, regardless of where we come down on the question of whether there should be group marriages.
11.3.2005 6:23am
Marcus1:
Remus,

I'm pretty sure there's a significant difference between a marriage with 2 people and a marriage with a lot of people. I'm surprised you don't see it. I feel like you must spend much of your life tumbling down slippery slopes.

I find the idea that gay people can still marry people of the opposite sex particularly silly though. What if the laws were changed and only allowed for SSM? If you were petitioning for heterosexual marriage, and another guy was petitioning for same sex polygamy, would you be satisfied if he said, "What's your problem? Marry a dude." I think you might have a problem with that.
11.3.2005 9:35am
Tigger:
Marcus1,

I think you're over simplifying the case here. It's a bit much to assume that simply because you see a distinction between gay marriage and polygamy that others will as well.

As you can see from the comments and the lay of the land, the majority opinion matters very little to an activist judge.

A single judge ruling on a case brought by a polygamist can logically point to a ruling allowing gay marriage and say "how is this situation any different?" Instead of 2 people I have 3 who want to call their special relationship 'marriage'. I can't say no based on procreation because gay marriage effectively kills that argument. I can't say it's immoral because morality is now such a subjective term and will most likely be struck down on appeal. I can only look at why it's discriminatory to refuse 'marriage' rights to these three people who are obviously in a loving committed relationship.

It has nothing to do with the majority opinion. A single judge can get the ball rolling in the same way that the boston judges did. People immediately went to boston, got married, then went home and filed equal protection lawsuits in their home state for that's states refusal to recognize their 'marriage' as valid.

Is it your contention that the same thing wouldn't happen with polygamy? Why? Simply because you personally see a difference between the two?
11.3.2005 10:44am
Op Ed. (mail) (www):
I will give Dale the benefit of the doubt in his mischaracterization of polygamy as a "slippery-slope" argument. The fact is, Dale argues specifically for polygamy, polyamory, incest, etc., by the form of the argument he is making for neutered "marriage."

Dale gives a list of "benefits" that supposedly flow to individuals and society from pandering to his arbitrarily chosen special interest group. This list of benefits alone, according to Dale, necessarily leads to acceptance of the particular marriage replacement that Dale is supporting. The problem for Dale is, the list of benefits he has chosen are just as likely to flow from other forms of marriage that Dale currently finds morally wrong. If Dale's argument is to be believed, then, one must find that all marriage forms that can argue the same list of benefits with the same level of credibility as Dale must be accepted based solely on that list of benefits. Were Dale more familiar with the subject, he would recognize that is not a "slippery-slope" fallacy, but rather a proof by contradiction that his reasoning is unsound.

In refuting his mischaracterized "slippery-slope" boogeyman, Dale ends up bearing out that his argument for neutering marriage is not to be believed. In arguing against polygamy, Dale makes no effort to show the list of benefits he claims for neutered marriage won't apply. He simply cannot. Not only does a simple replacement into his argument of words like "incestuous" or "polygamous" work perfectly, but Dale has already admitted that his claims of what benefits will follow have no basis in reality and are based purely on his ability to imagine and conjecture. Instead, Dale raises two side issues not considered in his argument to neuter marriage, political power and the potential for negative consequences, as additional considerations that must be taken into account in denying marriage redefinitions to alternative lifestyles of which Dale disapproves. Thus, Dale admits that his argument for neutering marriage is incomplete and not compelling.

Incidentally, these side issues may appropriately be considered in a utilitarian argument such as Dale makes for neutered marriage, but are specifically not to be included in the "fundamental right" argument many commenters here are making for neutered marriage. Fundamental rights do not flow from political power, but rather are to be considered "endowed by [the] Creator". Fundamental rights also should not consider the potential for negative outcomes. Thus, Dale can potentially expand his utilitarian argument for neutered marriage to address the political power and negative consequences cases to differentiate his position for neutered marriage from other marriage forms, but "fundamental rights" arguers cannot. They simply are arguing for every other form of marriage including polyamorous, incestuous, etc., so long as that form includes an adult who "wants to marry the person of their choice."
11.3.2005 11:44am
David (not the registered one):
A Guest:

You are indeed conflating two things when you say in reference to proposed constitutional amendments in MA that


the Massachusetts Supreme Court had already put the Legislature on notice that anything short of 'homosexual marriage' was going to be found 'unconstitutional' under the state constitution's unique language.


An amendment to the state constitution, passed by the legislature in two consecutive sessions and ratified by the people, would have changed "the state constitution's unique language." The MA Supreme Court had indeed indicated that they would be disposed to nullify a civil union statute as unconstitutional, but they have never indicated that they would be disposed to nullify a legislatively proposed amendment to the state constitution. Such an amendment could have made the relevant "unique language" in the state constitution disappear completely. Are you really suggesting that the state supreme court would then have struck down the state-constitutional amendment under the Federal Constitution? And if so, from where did you get that idea?

As for the "other problems" in promulgation of an amendment that you cite, notice that all of them are based on legislative opposition to an amendment. In 2002, the legislature decided to adjourn rather than consider the Protection of Marriage Amendment; in 2003 and 2004 the Legislature adjourned rather than vote on the Rehoboth Amendment. And the wikipedia entry that you cite regarding possible judicial challenges to a voter-proposed initiative is based on a provision of the state constitution applicable to voter-proposed initiatives that can survive if supported by only 25% of the legislature, but not applicable to legislatively-proposed amendments supported by a majority of the legislature. (See article XLVIII, part II, section 2 of the Massachusetts Constitution, available at http://www.mass.gov/legis/const.htm and stating in relevant part that "No measure that relates to... the reversal of a judicial decision... shall be proposed by an initiative petition.") If the legislative majority and duly-elected legislative leadership wanted a constitutional amendment banning same-sex marriage, none of these things would have stopped them.

You could certainly argue that this history and possibly future makes the situation in Massachusetts reminiscent of that in California, with the legislature acting differently than the majority of the people would in a referendum. (I think you would be wrong, at least based on what I remember of current MA poll numbers, but it would be a plausible argument.) But while you describe "Schafly's basic premise" as being "that it is not a majority of the people, but a small minority of the intelligentsia which is furthering the homosexual marriage agenda", I think it is very important that he originally claimed the same-sex marriage movement to have been "entirely dictated by elite judges." Even on the view of events in MA and CA most favorable to your argument, the "intelligentsia" to which you refer is operating in part through the legislature rather than allowing matters to be entirely dictated by judges.

It would be harder to convince the American people that duly elected legislators are routinely defying the wishes of their constituents, and that this is "undemocratic", than it is to make the same argument about unelected judges. This is why same-sex-marriage opponents often complain about "activist judges", but rarely about "activist legislators"; "activist legislators" sounds sillier. If Schafly had said simply that popular majorities in the states don't support same-sex marriage under the name of marriage, I could have cited some polls from MA and New Jersey that appear to indicate otherwise, but I admit I'd have less evidence than I have to oppose the stronger claim he actually made. What I most object to is the oversimplication that omits the significant role played by legislatures.
11.3.2005 12:12pm
Marcus1:
Tigger,

A single judge ruling on a case brought by a polygamist can logically point to a ruling allowing gay marriage and say "how is this situation any different?" Instead of 2 people I have 3 who want to call their special relationship 'marriage'. I can't say no based on procreation because gay marriage effectively kills that argument. I can't say it's immoral because morality is now such a subjective term and will most likely be struck down on appeal. I can only look at why it's discriminatory to refuse 'marriage' rights to these three people who are obviously in a loving committed relationship.

If you're asking whether a single judge potentially could decide that polygamy is Constitutionally required, then I guess that's possible. It's unlikely, though, and any such ruling would certainly be overruled, because there is not a compelling case for polygamy like there is for SSM, and because polygamy poses problems that SSM does not pose.

The question with a slippery-slope argument is whether a plausible distinction remains after a barrier is removed. The distinctions have been stated above. It's not about what I see. The distinctions are obvious. I think you and Remus see them too. I can't prove that, because you'll deny it, but I'll say it anyway because I think it's true.

It's kind of like Scalia in Lawrence saying this leads inexorably to gay marriage. But you know what, I bet he can still come up with some arguments against it if he really tries.
11.3.2005 12:29pm
On Lawn (mail) (www):
Medis,

But Dale's distinction was ultimately based on the fact that group marriages raise unique issues

In this post I enumerated the distinctions he made on group marriage. I found that only one could truely be considered a distinction, and that distinction was solely reliant on Dale's trickle-down social benefit theory. And in turn that trickle-down social benefit theory is dependant on there being no evidence to back it up or shoot it down, which is why he ignores data from institutionalized same-sex relationships throughout the course of history.

Not really a very strong argument on Dale's part, don't you think. Its foundation is nothing but hot air.
11.3.2005 2:18pm
visitor (mail):
You state:
If neither the right nor the left will line up behind you, your prospects of success are very dim. So no matter what we do about gay marriage, polygamy will not arrive, especially in the West, where liberal individualism, sex equality, and the loss of polygamy's own religious adherents, all combine to make it a very rare and dying practice.
You have failed to account for the power of marketing in Western society. Once a new market is seen as possible, there will be many who hope to profit from expanding it.
Polygamy. The other wife mate.
11.3.2005 2:45pm
visitor (mail):
Here's the slip: Two women, deeply in love with each other, profess to be bisexual. They fall in love with a man, but cannot marry him, because they are trapped in their 'same-sex marriage.' How can a just society deny these bisexuals the loving marriage they so richly deserve? A monogamous marriage cannot satisfy the needs of any bisexual without encouraging out-of-wedlock encounters, which are socially destabilizing.
The courts determine the slope to be steep.
11.3.2005 3:01pm
A Guest Who Enjoys This Site:
David (not the registered one): The ultimate problem with your continued argument is one of 'willful blindness.' You adamantly adhere to a position where you take Shafly's poor choice of words and ignore his intent. Assuming that was justifiable in the context of this discussion, you go beyond this and state (as you have inferred all the way along) that, even had he broadened his statement, you would bring forth information to refute that position. Further, you obstreperously attempt to parse the reality of legislators acting preemptively or reacting specifically to judicial fiat into an assertion that it is NOT the judiciary which is driving the issue, but the legislatures; and, thereby, the majority.

Let it go. Your agenda is showing; and it's not simply to prove that legislatures are just as culpable.


This is why same-sex-marriage opponents often complain about "activist judges", but rarely about "activist legislators"; "activist legislators" sounds sillier.


Actually, you are hearing BOTH these arguments, loudly and repeatedly in California, Massachusetts, etc. In fact, the arguments go beyond this to include elected officials such as mayors, city attorneys, etc. It's not that they are claiming that ALL the officials, elected and appointed, are ignoring the majority, it's that certain ones are. And it has been so stated, ad nauseum; even if you choose not to recognize it.


Even on the view of events in MA and CA most favorable to your argument, the "intelligentsia" to which you refer is operating in part through the legislature rather than allowing matters to be entirely dictated by judges.


Once again, you choose to ignore the information cited above and 'spin' your reality. Of course, things happened in the legislatures in both these cases. But, as has been amply and overwhelmingly pointed out above, BOTH of these cases were not only 'favorable,' they provide case studies in precisely the case being made.

California has been replete with officials ignoring both the law and the majority view as regards homosexual marriage. We won't go into the San Francisco debacle of issuing marriage licenses to homosexual couples in direct violation of the law. But, again, as was cited above, the Legislature did NOT act in concert with their constituencies. Even at that, the bill passed with the absolute minimum (21 needed and ONLY 21 in favor in the State Senate; 41 needed and ONLY 41 in favor in the State Assembly). This after groups threatened abstaining members, who caused defeat of a similar bill shortly before, with retribution.

As former California Assemblyman Larry Bowler stated:


"The Democrats in the Legislature have declared war on the 62 percent of Californians who voted to protect marriage in 2000...They've blatantly violated our state Constitution, which prohibits them from overturning voter-approved initiatives. Sadly, there's no one with whom to lodge a criminal complaint...We must go around these corrupt politicians and their allies in the courts." [emphasis mine]


What did Bowler mean? As I pointed out above, with specific and cited data, Proposition 22 made it clear that the majority of California voters wished marriage to be defined as follows:


This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution.

This initiative measure adds a section to the Family Code; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

PROPOSED LAW

SECTION 1. This act may be cited as the "California Defense of Marriage Act."

SECTION 2. Section 308.5 is added to the Family Code, to read:

308.5. Only marriage between a man and a woman is valid or recognized in California.



As Wikipedia points out:


The proposition amended California's marriage law, adding section 308.5 of the Family Code stating Only marriage between a man and a woman is valid or recognized in California. The proposition was not necessary to prohibit same-sex marriage in California, since section 300 of the Family Code already stated that "Marriage is a personal relation arising out of a civil contract between a man and a woman." But the proposition's language made it so that if another state allowed same-sex marriages, California would not recognize the unions and the spouses would not be eligible for the legal rights and privileges of marriage.


Therefore, Proposition 22 was NOT just to prohibit recognition of out-of-state homosexual marriages as you indicate in your above arguments. It was an effort to further refine and strengthen the existing statutes; with the added benefit of limiting recognition of out-of-state homosexual marriages. But, back to the point. How does the Legislature's action constitute 'criminality?' California Constitution, Article II, Section 8:

(a) The initiative is the power of the electors to propose
statutes and amendments to the Constitution and to adopt or reject them.

California Constitution, Article II, Section 10:

(c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.

Proposition 22 DID NOT permit amendment or repeal without electoral approval. And the bill passed by the Legislators was NOT approved by the electors; in fact, it was barely approved by Democrats (and not even all Democrats voted in favor) in the Legislature. Thus, passage of the bill was inherently and knowingly unconstitutional; thus, illegal.

So, where would Bowler come up with allies in the judiciary? In a 14 March 2005 decision, San Francisco Superior Court Judge Richard Kramer ruled on a consolidated case challenging the constitutionality of these statutes (Family Code sections 300 and 308.5). His 'tentative decision' held that: "In its rational basis analysis, this court has determined that the State's two rationale...do not constitute a legitimate governmental interest...under the strict scrutiny test, Family Code sections 300 and 308.5 violate the equal protection clause of the California Constitution."

Due the nature of it being a 'tentative decision,' implementation requires an appellete process. It is not expected to see any decision until sometime in 2006. Recognizing that there is little practical difference in how California voters view amendment vs. initiative ballots, but enough of a technical legal difference to leave wiggle room, given Romer v Evans (1996), where a Colorado state constitutional amendment was struck down as violating the Federal Constitution based on the creation of homosexuals as a 'class' open to discrimination and the traditionally liberal nature of the California Court, that 'wiggle' room makes anti-homosexual marriage proponents nervous. [Bear in mind that the California statutes are NOT as inclusive or 'class identifying' as Colorado's Amendment 2; but there is a relevance.]

So, what we see is the usual and demonstrated two-prong attack by pro-homosexual marriage advocates. They've failed in their 'legislative attempts' (just like in Massachusetts), so they have gone to the judiciary and found ONE judge who has now put the issue into legal play; directly in opposition to the majority will. Does that make the judge 'wrong?' Not necessarily. But, we are NOT talking about the veracity of decisions, we are talking about attempts to move the pro-homosexual marriage agenda against the obvious will of the majority through judicial activism; particularly when legislative recourse fails.

The Massachusetts' Legislature was forced into their current position by FOUR judges. The rejection of the amendment at the second meeting had as much, arguably more, to do with, as On Lawn indicated, the CU provision in the amendment and the Court's decision and advise, as it did a change in legislators and their positions. As I cited above, some of the legislators who rejected the amendment did so in anticipation of a NEW and narrower, more limiting provision; i.e., one that will presumably avoid judicial issues related to the state constitution by not committing the same error as Colorado's Amendment 2 - the creation of a 'secondary class of citizens.'

This is one of the primary issues pro-homosexual marriage advocates choose to ignore or obfuscate. Romer and Massachusetts cases were both ruled on based, not an issue of associational rights, access to the 'entitlements' of marriage, or on the definition of marriage as between one man and one woman. They were were decided based on the language used in the amendment process which, in the view of the respective courts, created a specific class open to targeted discrimination.

This is why, as I have cited above, the legislature and anti-homosexual marriage advocates in Massachusetts don't see the legislative rejection the of the amendment as a defeat; or even a statement about changing, public perception. They see it as a remonstration and an opportunity to more clearly refine the language to specifically 'protect marriage' to avoid JUDICIAL interpretations which negate the will of the majority.

Reality can sound 'silly' at times when it doesn't jibe with your perception of it; but, remember the phrase - truth is stranger than fiction. Again, you appear to make the choice to ignore the facts of reality in favor of your position. Such willful ignorance, however, does not make for a suitable premise.

Nonsequiter extrapolation and acontextual parsing, something Carpenter is equally guilty of, does not allow legislative actions to be used in the creation of a 'shield' for the judiciary so that the intent of Schafly's statement can be denounced as a 'significant exaggeration.' A poor choice of words to convey his intent, maybe; but not a misleading statement given the factual evidence.

It's also a waste of time for me to continue pointing you to citation after citation when it is obvious that your premise is based in a personal belief bearing only vague resemblence to the facts of reality. If your initial intention was simply to indicate that Schafly's statement was an exaggeration, then we have shown it to be a poor choice of words and not so 'significant' an exaggeration as you would wish to portray it. However, you have gone beyond such a presumed, initial intent. You have made assertion after assertion which appears to represent a personal agenda inconsistent with the factual evidence.

Far be it from me to continue asking that you let facts intrude on your truth.
11.3.2005 7:44pm
A Supportive Guest:
I've yet to hear anyone give me a good reason why the government shouldn't recognize polyamories as legal units. If the government is going to be in the marriage business at all, then they should be inclusive. Otherwise, let religion deal with marriage and gov't deal with individuals.
11.3.2005 9:51pm
Appellate Junkie (mail):
A Guest Who Enjoys This Site:

Your agenda is showing;


Hello, Pot. This is Kettle. We're both black.

I'll confine my remarks to the California portion of your diatribe.

Thus, passage of [California AB 849] was inherently and knowingly unconstitutional; thus, illegal.

That is a stretch.

First, as to the state Constitutional provision, the legislature is free to amend initiative statutes, such as Proposition 22. These amendments cannot take effect, however, unless approved by the voters. Such a legislative amendment cannot be put before the voters until the legislature passes the bill. To pass the bill is not unconstitutional, illegal, or (as Bowler asserted) criminal. It would, however, be of no effect unless subsequently approved by the voters. By custom, there is a format for doing so. The legislature did not invoke that form.

Secondly, this case presented another unpleasant technicality. AB 849 did not amend Family Code Section 308.5 (the initiative statute in question). The sections of the Family Code amended by AB 849 had never been touched by the electorate. Had the bill actually taken effect (without the voters' approval), the matter would quickly end up before the court for resolution. Such a court would probably rule in one of three ways (all in support of the anti-SSM crowd, but only one based on arguably unimpeachable jurisprudence):

  1. Even though the proponents of Proposition 22 (the initiative statute in question) expressly disavowed amending the statutes implicated in AB 849 (and in literal fact did not), they certainly would have if the legislature had not done so two decades prior. This sort of judicial "imagining" that people would have done something that they said they weren't doing is quite possible before many the California judges, but I would argue beyond the pale for a judge. Activism, however, cuts both ways.

  2. Absent an initiative to the contrary, the legislature is free to deal with the licensing of in-state marriages, but those licenses would be rendered invalid by virtue of the statute enacted by Proposition 22, which by its terms addresses foreign marriages. This position, unlike the prior one, has at least as SOME textual basis. Such a reading, however, suggests that statutory enactments can "silently" amend other provisions not addressed by the enactment's text nor necessary to give effect to the obvious object of the enactment.

  3. In order to reconcile the conflict described in the prior analysis, the court would be forced to construe the meaning of Proposition 22 in such a way as to render it unconstitutional (discriminating against citizens from other states simply because they are from other jurisdictions). That's a well established no-no. Hence, the court must reject the explicit findings of the legislature (and the Constitutionally mandated voter information) as to the meaning of Proposition 22, so as to give that enactment a constitutionally permissible effect (insofar as there was ambiguity as to the Proposition 22's scope).


I think that the courts would have been right to strike down AB 849 absent voter approval, but it is a very technical, and, in some principled sense troubling, analysis.

Due the nature of it being a 'tentative decision,' implementation requires an appellete process.

That's not what happened. Judge Kramer did issue a tentative decision to solicit feedback from the parties. That had nothing to do with invoking the appellate procedure (in fact, such an interlocutory appeal would almost certainly have been rejected in California). Only after he issued his final memorandum some weeks later (implementation of which he quite properly stayed pending appeal and likewise certified as an action ripe for appellate review under the California Rules of Court) did the matter move to the appellate court. Like every other trial judge in a similar situation, he made a ruling and did everything required to ensure that it was of no effect until higher courts rendered a decision on the matter.

so they have gone to the judiciary and found ONE judge who has now put the issue into legal play;

Just to be clear, Judge Kramer was the third judge to deal with the matter. He heard the case only after the Judicial Council (headed by the Chief Justice of the state) directed that the cases be coordinated under the complex-litigation rules of the court. The prior two judges were found by virtue of the fact the one set of cases ended in even docket numbers and the others in odd docket numbers. Clearly, the litigants manipulated the process to shop for the ONE judge of their choosing.

This is one of the primary issues pro-homosexual marriage advocates choose to ignore or obfuscate.

Given my penitent for obfuscation, I would highlight that the California Supremes chose not to take up the case directly on application by the state's Attorney General (a petition joined by the bulk of the opposing parties given the purely legal nature of the question).

There are, of course, many possible explanations for this. Whether dispositive or not, the California Supremes were well aware by the time they issued their ruling that not one but two separate initiative petitions were cleared for circulation. If either passed in 2006, the matter would be essentially out of the court's hands before they had ever ruled (which might not have been the case had they taken the direct appeal).

Deliberately or otherwise, the Supremes ensured that the electorate would have a second and third bite of the apple long before they had to decide the case. I think that the inactivism of this court was well advised, but hardly lends any credence to your puffery.
11.3.2005 11:14pm
A Guest Who Enjoys This Site:
Appellate Junkie:

The illegality stems from the fact that the effort was a deliberate attempt to contravene the purpose for the statute initiative in the first place. Amendment or repeal is not based on the Legislature disagreeing with the result and thereby instituting wholesale change or nullification; particularly when that desired change directly contradicts the very reasons for passage of the initiative to begin with.

Amending is not, of necessity or intent, a wholesale change. In fact, Proposition 22 refined already existing language. Repealing is the act of removing and amendment is the act of altering. Neither is intended to engender substituting Legislatively created contradiction of initiative created statutes.

What AB 849 did was present a wholesale change to the language presented in both Family Code 300 and the refined language for 308.5 presented in Proposition 22. It was neither an amendment, nor a repeal; the only two, constitutionally permitted acts of the legislature related to electoral passed initiatives.

According to the Senate floor analysis on 8/29/05:


This bill redefines marriage in California as a
union between two persons, making it gender-neutral and
thereby permitting same-sex marriages in the state. It does not, however, require any clergy or religious official to solemnize any marriage in violation of his/her right to free exercise of religion as guaranteed by the United States Constitution and the California Constitution. This bill contains legislative findings and declarations that it does not amend or modify Section 308.5 of the Family Code that declares only a marriage between a man and a woman is valid or recognized in California. Section 308.5 was enacted by the initiative Proposition 22 in 2000. This bill contains other findings and declarations regarding the history of statutes and decisional law that define marriage relative to gender neutrality or that address the constitutional infirmity of statutes that limit the ability to marry to heterosexual couples. Finally, this bill declares the Legislature's intent to end marriage discrimination in California without altering Section 308.5 of the Family Code...

This bill changes "a man and a woman" in the above statute to "two persons..."

This bill specifies the Legislature's intent that this bill not amend or modify Section 308.5 to the extent Section 308.5 addresses only marriages from other jurisdictions. This bill also specifies the Legislature's intent to correct only the constitutional infirmities of Section 300 and not those of Section 308.5, even though both sections were found unconstitutional by a state coordination trial judge appointed by the Judicial Council of California...

"Judge Richard Kramer, in the San Francisco
consolidated cases directly challenging the two Family
Code provisions, determined these two provisions are
unconstitutional in that they deprive a discreet class
of citizens equal protection guaranteed under the
California Constitution. By now proposing to change
Section 300 of the Family Code (though not 308.5,
because it was enacted by Proposition 22), the
Legislature has been joined to determine that the
current language of Section 300, defining marriage in
terms of a civil contract between a consenting man and
a consenting woman violates the California Constitution
and must be changed to allow same-sex couples to marry
in the state."



According to the Assembly floor analysis on 9/1/05:


1)Eliminates the current "different-gender" requirement in the state's definition of marriage.

2)Clarifies that gender-specific terms in the state's family laws shall be construed to be gender-neutral, except in regards to Family Code Section 308.5, concerning recognition of marriages contracted in other jurisdictions (Proposition 22 of 2000)...

4)Includes findings that Family Code Sections 300 and 308.5 have been declared unconstitutional in coordinated state-court proceedings and that the bill does not amend Family Code Section 308.5 to the extent that Section 308.5 addresses only marriages from other jurisdictions.

5)Acknowledges the authority of the California Supreme Court to make a final judicial determination regarding Section 308.5's meaning, and validity or invalidity.



What you have is an open admission by both the Senate and Assembly floor analyses that they are attempting a little sleight of hand or "three card monty." 'See, we aren't touching the Proposition 22 added language in 308.5' - BUT - we are going to erroneously proceed, in a willfully blind manner, as if it was ONLY intended to address marriages from outside the jurisdiction of California; something I've already shown was NOT true or intended.

'We are simply changing the language in Family Code 300 to conform to Judge Kramer's ruling' - a ruling that we are assured by you that the Judge, "Like every other trial judge in a similar situation...made a ruling and did everything required to ensure that it was of no effect until higher courts rendered a decision on the matter." MMMMM.

'See, we aren't changing the language of 308.5 since it is from Proposition 22' - BUT - we are changing, not amending, another portion of the Code, that portion which Prop 22 was intended to STRENGTHEN, in direct contradiction of the expressed will of the electorate; which passed the new code, using the precise, existing language of the old one, as a refining and reinforcing addendum to the code which the Legislature now intends to alter. After all, we have a legal argument in that the 'tentative' and 'final' decisions issued by Judge Kramer, which has "no effect" pending appellete procedure, informs us that the existing language is unconstitutional. MMMM.

In his 'veto,' Schwarzenegger just called it for what it was: "I am returning Assembly Bill 849 without my signature because I do not believe the Legislature can reverse an initiative approved by the people of California." This is not spin. This is not agenda on my part. This is simply a recognition of what BOTH the Senate and Assembly stated in the public record!!! The Legislature attempted to circumvent the will of the majority by inappropriately and, arguably, illegally (which is, by definition, a criminal act) reversing the practical effects of the language passed in Proposition 22.

Coincidently, by doing it this way, as you note, the Legislature would have created a codified inconsistency. If we assume and proceed on the false premise that was used, i.e., that 308.5 (Proposition 22) was solely intended to preclude recognition of homosexual marriages from other states, then they were creating a circumstance where they would recognize California homosexual marriages, but not homosexual marriages from outside the state. Oh yeah. That'll work.

This inconsistency would be enough for a rational person to deduce that there was a decided intent to contradict the will of the majority. But, as I pointed out, we have their own admission, on the public record, that this was their very intent. As Schwarzenegger pointed out: "This bill simply adds confusion to a constitutional issue. If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective."

Hey, I appreciate the sarcasm in:


Clearly, the litigants manipulated the process to shop for the ONE judge of their choosing.


Allow me a little facetious inflection when I point out that, of the six cases coordinated in this decision, one was actually moved from Los Angeles to be included in the San Francisco Superior Court's jurisdiction. A seventh case, Clinton v. State of California, was coordinated as an 'add-on.' In short, these cases were 'coordinated' into Kramer's court to, as the attorneys for Clinton stipulated in their memo in support of coordination, mitigate the probability that trying these cases separately "generates a high potential for inconsistent results with respect to the numerous evidentiary rulings, as well as in the final outcome of each case."

Alright. Coordination is intended to mitigate inconsistent rulings. However, it is interesting that such consolidation occurred in San Francisco. The San Francisco Superior Court is noted by the LA Weekly as a rather liberal institution.


It was the first to prohibit judges from associating with the Boy Scouts of America, which characterized gays as "unclean" and "not morally straight." It's called the "Lavender Bench," because at least 10 of its 50 judges are openly gay...Having retired many of its old-fashioned Republican judges long ago, the San Francisco bench these days is known for fiercely protecting the rights of criminal defendants, granting many requests for probation and allowing defense attorneys to ask for many continuances. In 2004, when Thomasson [executive director of Campaign for California Families, a party to the lawsuit] went to court to stop the city clerk from issuing marriage licenses, he chided the court for taking sides in favor of gay marriage. He filed a challenge to Judge James Warren, although he declined to state his reasons. But Warren was replaced by Judge Kevin McCarthy, who is openly gay. Then, last summer, as Kramer took over the separate case challenging Prop. 22, Thomasson tried to move the lawsuit out of San Francisco, citing judges Hitchens and Davis and their effort to protect domestic partner benefits.


Although Kramer is straight and appointed by a Republican, it cannot be denied that the atmosphere in the San Francisco Superior Court is decidedly sympathetic to the 'homosexual agenda.' What was that about the appearance of impropriety related to conflicts of interest? Or, as Volokh stated on 14 March: "I also think it's good for same-sex marriages to be allowed, though I don't think this should be enacted by courts."

As pointed out, the Kramer decision had a very real role in the Legislature's presumptive actions. It was also a fairly forgone conclusion that consolidation in the San Francisco Superior Court system would lead to a conclusion similar to Kramer's. Further, it had the benefit of mitigating the possibility that another judge or set of judges might develop decisions which support the constitutionality of the codes; something that would necessarily conflict with the expressed, desired outcome, the proclivities of the San Francisco Superior Court, and provide a basis for later, undesired outcomes in the higher courts. What was that? Oh yeah, the topic under discussion was Schafly's reference to the pro-homosexual marriage agenda being moved by the judiciary against the will of the people.

So, 'puffery' accusations aside, we are faced with the same point I made above. Legislative actions cannot act as a 'shield' for the judiciary. This is especially true when the California Legislature specifically cites Kramer's judicial action as a motivating factor.

The State Supreme Court's denial was offered with no comment, which leaves us, as you note, to only speculate as to their reasons. However, this 'inaction' is NOT a justification, amelioration, or evidence of a judiciary working for or against the majority. As you note, there are myriad reasons why the court may have denied the request. But, this has no bearing on the actions of either the State Legislature or the San Francisco Superior Court as regards working against the majority interest. As legislative action is no 'shield,' neither is the temporary inaction of a state supreme court a 'shield' for another part of the judiciary. And while it may be reasonable to infer a benign or 'appropriate' motivation for inaction, there are scenarios which may be 'spun' as more nefarious. In short, the state supreme court's inaction is nonsequiter to the discussion at hand. Thus, it neither lends itself to my 'puffery' nor to your rebuttal.

So, on the whole, while your reply is an interesting, intellectual exercise, it is based on premises that do not proceed from relevant facts to the discussion which David and I were having. It posits assertions which are, in many respects, contrary to the facts at hand.

As an example:


Absent an initiative to the contrary, the legislature is free to deal with the licensing of in-state marriages, but those licenses would be rendered invalid by virtue of the statute enacted by Proposition 22, which by its terms addresses foreign marriages.


Again, this freedom of the Legislature is limited by their intent; in this case, their intent being clearly defined as an attempt to contradict or nullify the language of Prop 22. This is not a 'conflict' to be resolved. It is something which the Legislature is constitutionally precluded from doing; no matter what legal sleight of hand or linguistic legerdemain they may employ to give it the perception of constitutionality.

Again, the idea of Proposition 22 ONLY dealing with out-of-state marriages is much like the nonsensical arguments presented regarding the U.S. Supreme Court's presumed failure to incorporate the phrase "one man and one woman" into a purported 'definition' of marriage in Griswold. Why should the Court be expected to incorporate a commonly understood definitional quality to the language when they intended to delineate the context of the marriage relationship, not provide the definition itself? Likewise, why would Proposition 22 need to address the issue of definition as presented in Family Code 300 when the intent was to point to this very definition (the definitional language being precisely that used in the language of Prop 22 creating Code 308.5) and stipulate that this is the ONLY definition accepted by the people of California as valid or recognized?

As with David, I find it more than a bit tedious to have to provide citation after citation for the obvious. And, I'm certain that readers of this thread find my extended postings equally tedious in that they are simply presentations of the definition of "is." So, while intellectual exercises of "what if" can be fun, I think it is time to end the diatribes, the citational bulwarking, and rides on the merry go 'round.

I think we got our dime's worth on this ride.
11.4.2005 3:48am
Appellate Junkie (mail):
A Guest Who Enjoys This Site:

Alright. Coordination is intended to mitigate inconsistent rulings. However, it is interesting that such consolidation occurred in San Francisco.

Yes, it's very interesting that the Judicial Council choose to coordinate the cases in the venue which first took up the matter, in which the overwhelming majority of the cases were filed, which had already conducted the greatest number of pretrial hearings, and which was already operating under a Supreme Court mandate in the matter.

Interesting that the JC did the obvious thing.

Or, as Volokh stated on 14 March: "I also think it's good for same-sex marriages to be allowed, though I don't think this should be enacted by courts."

Many people share Volokh's views, and I gather you agree with the latter clause. At the end of the day (somewhere out in 2007), the California Supremes may well agree too.

Regardless, the judiciary has an obligation to entertain a Constitutional challenge. If the challenge is wanting, there are many ways and opportunities for the courts to dispose of it. If that process offends you, convene a Constitutional convention, because we're going to have rewrite the whole damn thing.

So, while intellectual exercises of "what if" can be fun, I think it is time to end the diatribes, the citational bulwarking, and rides on the merry go 'round.

As for what Proposition 22 did, we disagree, as have some of the appellate courts in this state.

As to whether AB 849 was unconstitutional, we seem to agree. Were the question properly before the courts, however, I would be very concerned about how court reached the result. Frankly, adopting your analysis would, despite reaching the correct result, be one of the most offensive exercises in judicial activism I could imagine.
11.4.2005 11:46am
A Guest Who Enjoys This Site:
Appellate Junkie: You will note that I pointed out a facetious inflection in terms of the consolidation issue. I just find it interesting that the cases erupted in San Francisco, immediately after the fiasco with the issuing of marriage licenses, within a Superior Court system that has an obvious agenda bias. If that ain't forum shopping, well...

Yes, the judiciary has an obligation to entertain a constitutional challenge. However, it seems that the judiciary and the legislature, if not in California, then in Massachusetts, in Colorado, etc. seem to be at odds with each other. And, in California, the judiciary and the legislature seem to be at odds with the majority of the electorate. Now, say what you will about democracy being a 'messy' process; but, at what point do we go beyond 'checks and balances' and begin to wonder why a particular agenda seems to be driven by the judiciary? When the people and the legislatures seem to be intent on finding a way to implement some form of restriction and the judiciary continues to stop short of declaring that homosexual marriage IS an 'identical,' associational right to heterosexual marriage, but we're going to sanction it anyway for the 'following reasons...,' at what point to we begin to question why the judiciary is being allowed to dictate social policy to the legislatures? At what point does the situation reach the level of an 'independent judiciary' exerting more than their 'balance' of Constitutional authority; not necessitating a Constitutional Convention, but forcing a showdown that may lead to that? Or, a showdown that may lead to something even worse.

I can only assume that the reason that the courts have stopped short of declaring it a fundamental, associational right is that to do so would open the door to scenarios as are commonly referred to in this particular thread of the homosexual marriage discussion. Therefore, they've 'found' a side-door to dictate permissibility. I think this is why the legislatures and the electorate cannot envision an immediate solution; they're still coming to grips with the 'logic' in creating the side-door. When the electorate votes for something like Proposition 22, which clearly stated that it was considered to be a defense of the definition of one man and one woman (SECTION 1. This act may be cited as the "California Defense of Marriage Act."), and both the judiciary and the legislature appear to be claiming that, while that may be what it said, that's not what it means; do we have cognitive dissonance, confusion, or outright disgust?

The problem in California is that you have BOTH a judiciary and a legislature that appear at odds with the will of the majority. The people see this as a 'stacked deck.' This is precisely the reason you ended up with Schwarzenegger rather than Simon or Bustemante. The people thought, and Schwarzenegger ran on this basis, that putting a 'joker' in the deck might offset the house advantage. And, in the case of AB 849, it worked the way they intended; for despite all the bad-mouthing, including from me (I wouldn't have voted for him), Schwarzenegger did the right thing by 'checking' inappropriate legislative action.

The trouble is that Schwarzenegger has been largely unable to dispel the perception of a runaway state government. The problem created is that when the people begin to think the system is broken, their reaction is to 'fix' it. If they can't 'fix' it in terms of 'repair,' they attempt to 'fix' in more, inappropriate ways. This is why you now have Proposition 77. They don't feel that they can sanction legislators who flagrantly disregrad the will of the people by voting them out under the current system, so they're gonna try to change the system; by utilizing retired judges for crying out loud.

Voters sent Rose Bird and Gray Davis packing. What's their perception as to the 'success' in those sanctions? Did they get a more intended application of the death penalty? Did they get a state government intent on fixing the budget; or one that is still proceeding based on 'acceptable' budget imbalance?

This is the danger when the people begin to feel that government, no matter which branch, is no longer responsive to their employers and that the government has 'rigged the game' to protect itself. You end up with Bush v. Gore. You end up with special prosecutors. You end up with Propositions 22, 209, 77, etc. You end up with people, including assemblymen, who posit criminal sanctions for flagrant attempts to violate constitutional powers. Ad infinitum.

What is the inevitable response? You get the appearance of (or actual) impropriety by a judiciary and a legislature acting in concert. You get a stacking of the courts with ideologues from both sides of the aisle. You get a judiciary doing impossible yoga twists and leaps of illogic to 'find' rights or 'protections' to further agendas that don't seem to, at the moment, be able to find popular support; i.e., a judiciary effecting social change rather than reflecting, following, or neutrally arbitrating that change. Ad infinitum.

It then becomes a downward spiral. Accusations and perceived 'arrogance' eminate from both camps. "The Legislature criminally and flagrantly ignored their duties, and the restrictions thereof, in passing a bill to contradict the expressed will of the electoral majority." - "Frankly, adopting that analysis would, despite reaching the potentially correct result, be one of the most offensive exercises in judicial activism I could imagine."

Truth be told, I tend toward the second, your, analysis. I don't think the court system should be used, in a properly functioning system, to sanction legislators. However, what are the current, practical, feasible, functionable alternatives? I don't think, and this seems to be Volokh's opinion, one shared by the U.S. Supreme Court in the case of homosexual marriage, that the judiciary is the proper venue to implement social change. So, how do we find a practical, feasible, functionable, and legally recognizable way to stop this from happening?

This is my concern. The people see the system as broken or stacked against them; regardless of where they stand on the issue. The system only functions when people have faith in it. So, if the people are losing faith in the system and, therefore, the system is slowly losing its 'functionality,' what needs to happen to restore a sense of faith in the system? Continue with a judiciary pushing through social change despite the will of the majority? Continue with a Legislature bent on substituting their judgment for the majority's? Set one branch against another so that little gets done; appointments are delayed, legislatures are shut down, court decisions or public policy statutes are placed on 'hold,' and civil rights are eroded by bureacracies attempting to guage which branch holds 'the moment?'

There's your intellectual exercise. I think we might agree that it's a worthy one.
11.4.2005 4:41pm
Appellate Junkie (mail):
A Guest Who Enjoys This Site:

You will note that I pointed out a facetious inflection in terms of the consolidation issue.

Noted with appreciation.

I just find it interesting that the cases erupted in San Francisco, immediately after the fiasco with the issuing of marriage licenses, within a Superior Court system that has an obvious agenda bias. If that ain't forum shopping, well...

The perfect storm indeed.

Having watched the San Francisco Superior Court very closely for a couple of decades (for all I know you have too), I have a different read on it, or, at least, a different read on what "an obvious agenda bias" is.

This is my concern. The people see the system as broken or stacked against them; regardless of where they stand on the issue.

On this and a host of other issues too.

That said, I think that the electorate and other social institutions are equally part of the problem. We can argue about cause and effect, but in a tragic way our government and social institutions are reflections of each other's increasingly polluted/dysfunctional ethic.

Coming back to the Great Marriage Debate, I would note, with some dismay, that the process is playing out in California better than in most states. It's not that California has got it right—far from it. Rather, it is that the process is better here (within the limits of in its hideously crippled condition) than elsewhere.

There's your intellectual exercise. I think we might agree that it's a worthy one.

I agree with the general thrust of your observations. It is a worthy and most daunting exercise. One that we really ought to get underway in earnest and with sincerity (but a little humor and humility would be welcome along the way too).
11.4.2005 5:48pm